Balasubramaniam v. The Inspector Of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15.10.2019

CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.(MD)No.8754 of 2019 Balasubramaniam ... Petitioner/Sole Accused -Vs1. The Inspector of Police Melapalayam Police Station, Tirunelveli.

(Crime No. 302 of 2018) ... 1st Respondent/Complainant

2. Shanmugavel ... 2nd Respondent/Complainant Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to call for the records pertaining to C.C.No.1214 of 2019 on the file of the Judicial Magistrate No.V, Tirunelveli and quash the same.

For Petitioner : Mr.P.Subbiah For R1 : Mr.K.Suyambulinga Bharathi Government Advocate(crl.side)

O R D E R

This Criminal Original Petition has been filed to quash the charge sheet in C.C.No.1214 of 2019 on the file of the Judicial Magistrate No.V, Tirunelveli.

2. The case of the prosecution is that during Vinayagar Chathurthi festival in the year 2018, the police officials imposed condition that the Vinayagar Idols should be taken procession in a motor vehicle and the processions should be conducted till 10.00 pm. But, the petitioner took Vinayagar Idol in a 'Sahadai Vandi' for procession and conducted procession till 12.00 p.m, by violating the orders issued by the officials. On the basis of the above said allegations, the respondent police registered the complaint as against these petitioner for the offences under Sections 143 and 188 of IPC in Crime No. 302 of 2018 the same was taken cognizance by the learned Judicial Magistrate No.V, Tirunelveli in C.C.No.1214 of 2019. The said criminal proceedings is under challenge in this Criminal Original Petition.

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3. According to the petitioner, the petitioner is an innocent person. 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 petitioner or any other member had never disturbed public, public tranquility and peace and there is no evidence that the petitioner caused damages to the public property. The petitioner unaware about the order of the officials regarding procession. On precautionary measures, the respondent police had registered this case, under Section 143 and 188 of IPC as against the petitioner. Therefore, he sought for quashing the proceeding. 4.The learned Government Advocate(Crl.

Side) submitted that the petitioner took Vinayagar Idol in a 'Sahadai Vandi' for procession and conducted procession till 12.00 p.m, by violating the orders issued by the officials, while prohibitory order was in force and there are specific allegations 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 took Vinayagar Idol in a 'Sahadai Vandi' for procession and conducted procession till 12.00 p.m, by violating the orders issued by the officials, while prohibitory order was in force. Therefore the respondent police levelled the charges under Sections 143 and 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.

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 offences under Section 188 of IPC. Further, the complaint does not even state as to how the petitioner has attempted to stage demonstration in prohibited area and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed. 9.Accordingly, the proceedings C.C.No.1214 of 2019 on the file of the learned Judicial Magistrate No.V, Tirunelveli, is quashed and 3/4

the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CO) // True Copy // Sub Assistant Registrar(CS ) To 1.The Judicial Magistrate No.V, Tirunelveli.

2.The Inspector of Police Melapalayam Police Station, Tirunelveli.

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

+1 CC to Mr.P.SUBBIAH, Advocate ( SR-91891[F] dated 15/10/2019 ) 15.10.2019 ls MK (31.10.2019) 4P 5C 4/4