Mariappan v. The Inspector Of Police

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 05.09.2019

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN and CRL.M.P. (MD)No.772 of 2018 1.Mariappan 2.Pathirakali 3.Mariappan 4.Pitchaikutti 5.Muniasamy 6.Poovalingam @ Rasu 7.Sivalinga Ganesh 8.Murugan 9.Veerabagu 10.Mookammal 11.Velammal 12.Avudaiammal 13.Mariammal 14.Gomathi 15.Parvathi 16.Lakshmi ... Petitioners/A1 to A16 Vs.

1.State represented by The Inspector of Police, Pudukottai Police Station, Thoothukudi, Thoothukudi District.

(Crime No.283 of 2017) ... Respondent/Complainant 2.Ravichandran ... Respondent/Defacto Complainant PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the First Information Report pertaining to the case in Crime No.283 of 2017 on the file of the first respondent police and quash the same.

For Petitioners : Mr.S.Ramasamy For Respondent : Mr.K.Suyambulinga Bharathi No.1 Government Advocate(Crl.Side)

O R D E R

This Criminal Original Petition has been filed to quash the Crime No.283 of 2017 on the file of the first respondent. 1/4

2.The case of the prosecution is that there is a temple situated at Allikulam Village, Thoothukudi District and there was a tussle between two community with regard to the worshiping and collection of tax. In this regard, a peace committee meeting was conducted by the Tashildar and amicable settlement was also arrived. However, the petitioners herein performed pooja in the said temple against the settlement of the peace committee meeting and also prevented the Government Officials from discharging their official duty. Hence, the respondent police registered a case in Crime No.283 of 2017 for the offences under Sections 188, 353 IPC. 3.The learned counsel appearing for the petitioners submitted that 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 involved in any unlawful assembly and there is no evidence that the petitioners or others restrained anybody. However, the officials of the respondent police had beaten the petitioners and others. When there was lot of members involved in the protest, the respondent police had registered this case, under Sections 188, 353 IPC as against the petitioners and others. Therefore, he sought for quashing the proceeding. 4.Per contra, the learned Government Advocate(Crl.

Side) submitted that the petitioners along with others violated the settlement which was arrived in the peace committee meeting and prevented the Government Officials from discharging their official duty and also 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.Heard Mr.S.Ramasamy, learned counsel for the petitioners and Mr.K.Suyambulinga Bharathi, learned Government Advocate(Crl.Side) appearing for the first respondent.

6.On perusal of the charge, it is seen that the petitioners and others without permission getting prior permission from the concerned authority, performed pooja in temple in question and violated the settlement arrived in peace committee meeting and also prevented the Government Officials from discharging their official duty. Therefore the respondent police levelled the charges under Sections 188, 353 I.P.C. as against the petitioners and others. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges 2/4

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 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 Section 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.

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8.In the case on hand, the First Information Report has been registered by the respondent police for the offences under Sections 188, 353 IPC. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioners and others is an unlawful protest. Therefore, the final report cannot be sustained and it is liable to be quashed.

9.Accordingly, the proceedings in Crime No. 283 of 2017, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CS-III) // True Copy // Sub Assistant Registrar(CS ) To 1.The Inspector of Police, Pudukottai Police Station, Thoothukudi, Thoothukudi District.

2. The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.

+1 CC to Mr.S.RAMASAMY, Advocate SR-85714.

05.09.2019 CS(09.10.2019) 4P 4C 4/4