Abraham Charles v. The Insepctor Of Police
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20.04.2015
CORAM
THE HON'BLE MR.JUSTICE M.M.SUNDRESH CRL.O.P.(MD)No.4728 of 2015 and M.P.(MD) Nos.1 & 2 of 2015
1. Abraham Charles 2.Chandrasekar .. Petitioners/ A2 and A3 .. Vs ..
State through The Inspector of Police, Sivakasi Town Police Station, Virudhunagar District (Crime No.705 of 2013) .. Respondent/Complainant Criminal Original Petition filed under section 482 of the Code of Criminal Procedure, praying to call for the records in S.T.C.No.4771 of 2013 on the file of the Learned Judicial Magistrate Court, Sivakasi and to quash the same. For Petitioners : Mr.G. Mariappan For Respondent : Mrs.S.Prabha Government Advocate(Crl. Side) - - - - -
O R D E R
The petitioners, who have been arrayed as A2 and A3 in S.T.C.No.4771 of 2013 for the alleged offences under Sections 147 and 188 of IPC have come forward with this present petition.
2. The case against the petitioners is that on 03.08.2013, a prayer meeting was conducted beyond the condition imposed by the order of this Court made in W.P.(MD).No.12550 of 2013.
3. The learned counsel for the petitioners submitted that the offence under Section 188 of I.P.C has not been made out. As per the provisions of Section 195(i)(a)(i) of Cr.P.C, cognizance can be taken for the said offence, in case a public servant lodges a complaint. In the case on hand, admittedly, no complaint has been given by any public servant, before the Court. The allegation itself is that the order passed by this Court is violated.
4. The learned counsel for the petitioners relied on various decisions of the Supreme Court reported in (2010) 3 SCC (Cri) 1402, (2010) 9 SCC 567 (C. Muniappan and others Vs. State of Tamil Nadu), (D.K.Rajendran and others Vs. State of Tamil Nadu) as well as this Court in Crl.O.P(MD).No.13251 of 2009 (V. Palaniswamy and others Vs. the Inspector of Pollice, Panjai Puliampatti Police Station, Sathiyamangalam, Erode District).
5. The learned Government Advocate fairly submitted that the procedure as contemplated under Section 195 Cr.P.C has not been followed in this case.
6. The decision of the Hon'ble Apex Court in the case of (C. Muniappan and others Vs. State of Tamil Nadu), (D.K.Rajendran and others Vs. State of Tamil Nadu), (supra) especially, para 27, reads as follows:-
27. Section 195 Cr.P.C. Reads as under:- "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence- (1) No court shall take cognizance - (a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860)m or * * * except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"
7. In the very same judgment, the Hon'ble Apex Court, by considering various aspects with regard to Section 188 IPC, pleased to hold as follows in para 33 to 36:-
33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.P.C are mandatory. Non compliance with it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In such absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
34. The learned counsel for the appellant have submitted that as no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, if falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, the entire prosecution case falls.
35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 Cr.P.C falsifies the genesis of the prosecution case and is fatal to the entire prosecution case.
8. In the earlier decision of this Court, in Crl.O.P(MD). No.13251 of 2009 (V. Palaniswamy and others Vs. the Inspector of Pollice, Panjai Puliampatti Police Station, Sathiyamangalam, Erode District), it has been held as follows in para 5 of the Judgment:- " 5. Admittedly, in this case, on the basis of the complaint given, police enquired, investigate and filed charge sheet and therefore, the Court should not have taken cognizance of the charge sheet filed by the respondent police. In the decision reported in 2004 MLJ (Crl.) 633 (K.C. Palaniswamy and others Vs. State represented by Inspector of Police, City Crime Branch, Coimbatore), the said law has been discussed and held that the final report filed by the police in respect of Section 188 of IPC is not maintainable. Hence, the lower Court ought not to have taken cognizance of the charge sheet file by the respondent police.
9. In the light of the settled proposition of law as recorded above and considering the fact that there is no dispute of facts, this Court is inclined to quash the proceedings. Accordingly, the Criminal Original Petition is allowed and the impugned order is set aside. Consequently, connected Miscellaneous Petitions are closed.
Sd/- Assistant Registrar(T&P) /True Copy/ Sub-Assistant Registrar To
1. The Inspector of Police, Sivakasi Town Police Station, Virudhunagar District
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
+One cc to Mr.G.Mariappan, Advocate, SR.No.20460 trp RL/4 c- 21/5/2015 Crl.O.P.(MD)No.4728 of 2015 and M.P.(MD) Nos.1 & 2 of 2015 20.04.2015