Pon.M.Sethu Ramalingam, v. The Sub Inspector Of Police,

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 24.09.2019

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P(MD) Nos.305 & 306 of 2019

1. Pon M. Sethu Ramalingam

2. Mani Moozhiyan

3. M.S. Rajan

4. Radhakrishnan

5. Yasin Babu

6. Karuppiah

7. Mahendran

8. Chinnamani

9. Pounraj

10. Ravindran

11. Velu

12. Maayamperumal

13. Manikandan

14. Pudur Selvam 15.Ramesh : Petitioners/Accused 1 to 15 Vs.

The State rep, Sub- Inspector of Police, Thallakulam Police Station, Madurai City, Madurai.

(In Crime No. 660 of 2016) : Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the records relating to the impugned charge sheet in S.T.C. No. 562 of 2016 on the file of the learned Judicial Magistrate, Court No.2, Madurai and quash the same as against the petitioners.

For Petitioners : Mr. N. Satheeshkumar For Respondent : Mr.K.Suyambulinga Bharathi Government Advocate(Crl.Side)

O R D E R

This Criminal Original Petition has been filed to quash the impugned charge sheet in S.T.C. No. 562 of 2016 on the file of the learned Judicial Magistrate, Court No.2, Madurai as against the petitioners.

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2. The case of the prosecution is that the 1st petitioner is the Deputy Secretary of the Dravida Munnetra Kazhagam Party, along with the other 14 petitioners burnt the effigy of Mr.Vai.Ko and raised slogans against him. On the basis of the above said allegations, the respondent police registered the complaint and filed a charge sheet against these petitioners for the offences under Sections 143, 188 and 285 of IPC and Section 4(1) of Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959 in Crime No. 660 of 2016 the same was taken cognizance by the learned Judicial Magistrate, Court No.II, Madurai. The said criminal proceedings is under challenge in this Criminal Original Petition.

3. According to the petitioner, the petitioners are innocents. According to Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority. Further he submitted that the petitioners or any other members had never disturbed public, public tranquility and peace and there is no evidence that the petitioners caused damages to the public property. On precautionary measures, the respondent police had registered this case, under Section 143 and 188 of IPC as against the petitioners. Therefore, they sought for quashing the proceeding.

4. The learned Government Advocate(Crl.Side) submitted that the petitioners done this act with full knowledge that the Election Commission Model Code of Conduct was in force and there are specific allegations as against the petitioners to proceed with the trial. Further, he would submit that Section 188 of IPC is a cognizable offence and therefore it is the duty of the police to register a case. Though there is a bar under Section 195(a)(i) of Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not mean that the police cannot register FIR and investigate the case. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.

5. Perused the material documents available on record.

6. On perusal of the charge, it is seen that the 1st petitioner who is the Deputy Secretary of the Dravida Munnetra Kazhagam Party along with the other 14 persons burnt the effigy of Mr.Vai.Ko and raised slogans against petitioners, with full knowledge that the Election Commission Model Code of Conduct was in force. Therefore the respondent police levelled the charges under Sections 143 and 188 of I.P.C. as against the petitioners. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioners. It is also seen from the charge itself that the charges are very simple in nature and trivial. Section 188 reads as follows: "188. Disobedience to order duly promulgated by public servant - Whoever, knowing that, by an order 2/4

promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

7. The only question for consideration is that whether the registration of case under Sections 143, 188 IPC, registered by the respondent is permissible under law or not? In this regard it is relevant to extract Section 195(1)(a) of the Criminal Procedure Code, 1973 :- "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 Courts hall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive)of the Indian Penal Code (45 of 1860), or (ii)of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;..."

Therefore, it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.

8. In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 143 and 188 IPC. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the 3/4

offences under Section 188 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.

9. Accordingly, the proceedings in S.T.C. No. 562 of 2016 in Crime No.660 of 2016, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.

Sd/- Assistant Registrar // True Copy // Sub Assistant Registrar(CS ) ksa To:

1. The Judicial Magistrate, Court No.2, Madurai.

2. The Sub- Inspector of Police, Thallakulam Police Station, Madurai City, Madurai.

3. The Additional Public Prosecutor Madurai Bench of Madras High Court.

+1 CC to M/s.N.SATHEESH KUMAR, Advocate SR-88967. 24.09.2019 CS(30.10.2019) 4P 5C 4/4