N.Kannan, v. The Inspector Of Police,

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 30.10.2019

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.(MD) No. 3287 of 2018 N. Kannan ... Petitioner Vs.

1. The Inspector of Police, Thideer Nagar Police Station (L & O), Madurai City.

In Crime No.36 of 2008.

2. S. Rathinavelu ... Respondents PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records pertaining to the case in Crime No.36 of 2018 under Section 341, 143, 188 of IPC, pending on the file of the first respondnet police and quash the same as far as the petitioner/accused No.45.

For Petitioner : M/s.K. Annam For R-1 : Mr.K.Suyambulinga Bharathi Government Advocate(Crl.Side)

O R D E R

This Criminal Original Petition has been filed to quash the proceedings in Crime No.36 of 2018 for the offences under Sections 341, 143, 188 of IPC, pending on the file of the first respondnet police.

2. The case of the prosecution is that the second respondent had given a complaint before the first respondent stating that on 23.01.2018 at about 11.00 a.m., near Periyar Bus Stand, nearly 177 cadres of CPI (M) party including 16 women were said to have unlawfully assembled and without any lawful permission blockade the road, by which the general public got annoyed and alleged to have raised slogans against the government for condemning the cause for price hike of Government Corporation Buses. On the basis of the above said allegation, the respondent police registered the complaint and filed a FIR against the petitioner and others for the offences under Sections 341, 143 & 188 of IPC in Crime No.36 of 2018.

3. According to the petitioner, he is innocent and 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. The respondent police has no jurisdiction to register a case. When there was lot of members involved in the protest, the respondent police had registered this 1/4

case, under Section 188 of I.P.C. as against the petitioner and some persons. Therefore, he sought for quashing the proceeding.

4. The learned Government Advocate(Crl.Side) submitted that the petitioner along with other accused persons were raised slogans against the government for condemning the cause for price hike of Government Corporation Buses and therefore, there is specific allegation as against the petitioner 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 petitioner and others were belongs to a CPI (MD) party. Therefore the respondent police levelled the charge under Section 188 of I.P.C. as against the petitioner. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioner. 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 Sections 143 & 188 IPC, registered by the respondent is permissible under law or not? In this regard it is 2/4

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 341, 143 & 188 of I.P.C. He is not a competent person to register FIR for the offences under Section 143, 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 143 & 188 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.

9. Accordingly, the proceedings in Crime No. 36 of 2018, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

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

1. The Inspector of Police, Thideer Nagar Police Station (L & O), Madurai City.

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

30.10.2019 KSA KK/SAR/25.11.2019/4P-3C/ 4/4