Madras High CourtCRL OP(MD)/1779/2021disposed of

Ramakrishnan v. The Inspector Of Police

2021-04-23Honourable Mr Justice G.Ilangovan4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.04.2021

CORAM:

THE HONOURABLE MR.JUSTICE G.ILANGOVAN and Crl.M.P.(MD)No.884 of 2021 1.Ramakrishnan 2.Naveen @ Thirumurugan ... Petitioners (Wrongly mentioned as Naveen incr.no.1081 of2020 instead of Thirumurugan) Vs.

1.The State rep.by The Inspector of Police, Silaiman Police Station, Madurai District.

(Crirme No.1081 of 2020) 2.S.Karthik

...Respondents

PRAYER: Criminal Original Petition is filed under Section 482 of Cr.P.C, to call for the entire records pertaining to the impugned First Information Report in Crime No.1081 of 2020 dated 27.07.2020 for the offences under Section 188 of IPC r/w 25(2)(a) and 26(2) Disaster Management Act on the file of the First Respondent and quash the same against the petitioners as illegal. For Petitioners : Mr.S.Vanchinathan For R1 : Mr.K.Suyambulinga Bharathi Government Advocate (crl.side)

O R D E R

This petition has been filed seeking a quashment of the First Information Report in Crime No.1081 of 2020 dated 27.07.2020 for the offences under Section 188 of IPC r/w 25(2)(a) and 26(2) Disaster Management Act on the file of the First Respondent 1/4

2.According to the learned counsel for the petitioners, the first respondent registered a case in Crime No.1081 of 2020 against the petitioners stating that the petitioners were roaming without wearing face masks in violation of pandemic rules. The petitioners only went for getting some medicines for their age old family members. Hence, the petitioners have filed the present petition seeking to quash the case registered against them on the ground that the complaint lodged by the respondent is illegal, since there is a bar under Section 195(1)(a)(i) of Cr.P.C.

3.The learned Government Advocate (Criminal side) for the respondent police would submit that the facts of the case are exactly similar to the case covered in the decision reported in 2018 2 LW (crl) 606 [Jeevanandham and other Vs. Inspector of Police, Sivakasi Town Police Station, Virudhunagar District], dated 20.09.2018.

4.Heard the learned counsel on either side.

5.The main allegation that has been levelled against the petitioners is that defying the ban order imposed by the Government, without permission the petitioners were roaming in the road. An offence under Section 188 of IPC is a non-cognizable offence which cannot be investigated by the first respondent police without proper permission from the concerned Court. According to the petitioners, the facts and circumstances of the case is squarely covered in the judgment of this Court reported in 2018 2 LW (crl) 606 in the case of Jeevanandham and other Vs. Inspector of Police, Sivakasi Town Police Station, Virudhunagar District and other, wherein paragraph No.

25 certain guidelines issued by this Court, which are reproduced herein for ready reference:- a)A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC. b)A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC. c)The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.

satisfied with the requirements of Section 188 of IPC. d)In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely; i) that there must be an order promulgated by the public servant;

ii) that such public servant is lawfully empowered to promulgate it;

iii)that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and iv)that such disobedience causes or tends to cause;

(a) obstruction,annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety;

or (c) a riot or affray.

e)The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.

f)The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.

g)No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.

h)The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under 3/4

Section 195(1)(a)(i) of Cr.P.C.

6.It is seen that the guidelines that has been prescribed in the above said judgment was not followed by the respondent police, while registering a case.

7.Considering the facts and circumstances of the case, the entire proceedings in Crime No.1081 of 2020 on the file of the first respondent police stands quashed. Accordingly, this Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (W) // True Copy // / /2021 Sub Assistant Registrar(CS) Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. CP To 1.The Inspector of Police, Silaiman Police Station, Madurai District.

(Crirme No.1081 of 2020) 2.The Additional Public Prosecuter, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.S.VANCHINATHAN, Advocate ( SR-17259[F] dated 23/04/2021 ) 23.04.2021 GS (17.06.2021) 4P 4C 4/4