Santhoshkumar v. The Inspector Of Police

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 16.10.2019

CORAM:

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P(MD) No.22560 of 2018 and Crl. M.P.(MD) Nos. 10588 & 10589 of 2018 Santhoshkumar ... Petitioner/A4 Vs.

1. State Rep. by Inspector of Police, Theppakulam Police Station, Madurai City, Crime No. 112 of 2016

2. Paravasudevan, Inspector of Police, Teppakulam Nagar Police Station, Madurai City.

... Respondents/Defacto Complainant PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the entire records in STC No.2 of 2017 on the file of the learned Judicial Magistrate No.I, Madurai, Madurai District and quash the same as against the petitioner. For Petitioner : Mr. M. Pitchai Muthu 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 of STC No.2 of 2017 on the file of the learned Judicial Magistrate No.I, Madurai, Madurai District as against the petitioner.

2. The case of the prosecution is that the petitioner along with other 38 persons belongs to Democratic Youth Federation of India (DYFI) and SFI, have unlawfully assembled on 19.07.2016 at about 11.50 a.m., at near Vengadajalapathi Iyangar Street, Kamarajar Salai and raising slogan by expressing their opposition against the duty and abused them with filthy language. On the basis of the above said allegations, the first respondent police registered the complaint and filed a charge sheet against the petitioner for the offences under Sections 143, 188, 341, 294(b) and 353 of IPC in Crime No.1112 of 2016 the same was taken cognizance by the learned

Judicial Magistrate No.I, Madurai, Madurai District. The said criminal proceedings is under challenge in this Criminal Original Petition.

3. According to the petitioner, the petitioner is innocent. 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 members had never disturbed public, public tranquility and peace. On precautionary measures, the respondent police had registered this case, under Sections 143, 188, 341, 294(b) and 353 of IPC as against the petitioner. Therefore, he sought for quashing the proceeding.

4. The learned Government Advocate (Crl.Side) submitted that the petitioner along with other 38 persons belongs to Democratic Youth Federation of India (DYFI) and SFI, have unlawfully assembled on 19.07.2016 at about 11.50 a.m., at near Vengadajalapathi Iyangar Street, Kamarajar Salai and raising slogan by expressing their opposition against the suspicious death of one and during the course all the accused persons had prevented the police officials from doing their official duty and abused them with filthy language 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 along with other 38 persons belongs to Democratic Youth Federation of India (DYFI) and SFI, have unlawfully assembled on 19.07.2016 at about 11.50 a.m., at near Vengadajalapathi Iyangar Street, Kamarajar Salai and raising slogan by expressing their opposition against the duty and abused them with filthy language. 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 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, 188, 341, 294(b) and 353 of 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 along with other accused persons belongs to Democratic Youth Federation of India (DYFI) and SFI, have unlawfully assembled on 19.07.2016 at about 11.50 a.m., at near Vengadajalapathi Iyangar Street, Kamarajar Salai and raising slogan by expressing their opposition against the

duty and abused them with filthy language 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 in S.T.C. No. 2 of 2017 on the file of the learned Judicial Magistrate No.I, Madurai, Madurai District in Crime No.1112 of 2016, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petitions are closed.

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

1. The Judicial Magistrate No.I, Madurai, Madurai District.

2. The Inspector of Police, Theppakulam Police Station, Madurai City.

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

Copy to The Section Officer,( 2 copies) Criminal Section, Madurai Bench of Madras High Court, Madurai.

CRL.O.P(MD) No.22560 of 2018 16.10.2019 VB(19.11.2019) 4P 6C