Ponnusamy v. The Sub Inspector Of Police
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 01.10.2019
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN and CRL.M.P (MD)10684 of 2018 1.Ponnusamy 2.Selvam 3.Mariappan 4.Kathanan 5.Selvam@ Selva 6.Murugan ... Petitioners/Accused 1 to 6 Vs.
The Sub Inspector of Police Pandalkudi Police Station Virudhunagar District ... Defacto Complainant/ Respondent PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the records relating to the impugned FIR in Crime No. 221 of 2017 on the file of the respondent herein and quash the same.
For Petitioners : Mr.K.Rajeswaran 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 First Information Report in Crime No. 221 of 2017 on the file of the first respondent police.
2.
The case of the prosecution is that on 30.10.2017 when the respondent was on duty near Pandhalkudi Pudur Vilakku Check Post at about 11.20 a.m the passengers in a Scorpio Vehicle violated the orders passed under Section 144 of Cr.P.C and 32 of Police Act. Further when the respondent police insisted to maintain peace, the petitioners standing besides the car and shouted . On the basis of the above said allegation, the respondent police registered the complaint and filed a First Information Report against the petitioners for the offences under Sections 143, 188 of IPC and Section 184, 179 of Motor Vehicle Act, 1988 in Crime No.221 of 2017. 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 1/4
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 143, 188 of IPC and Section 184, 179 of Motor Vehicle Act, 1988 as against the petitioners and others. Therefore, he sought for quashing the proceeding.
4.
Per contra, the learned Government Advocate(Crl.Side) submitted that on 30.10.2017 when the respondent was on duty near Pandhalkudi Pudur Vilakku Check Post at about 11.20 a.m the passengers in a Scorpio Vehicle violated the orders passed under Section 144 of Cr.P.C and 32 of Police Act. Further when the respondent police insisted to maintain peace, the petitioners standing besides the car and shouted 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.
Heard Mr.K.Rajeswaran, 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 on 30.10.2017 when the respondent was on duty near Pandhalkudi Pudur Vilakku Check Post at about 11.20 a.m the passengers in a Scorpio Vehicle violated the orders passed under Section 144 of Cr.P.C and 32 of Police Act. Further when the respondent police insisted to maintain peace, the petitioners standing besides the car and shouted . Therefore the respondent police levelled the charges under Sections 143, 188 of IPC and Section 184, 179 of Motor Vehicle Act, 1988. 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 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 2/4
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 of IPC and Section 184, 179 of Motor Vehicle Act, 1988, 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 of IPC and Section 184, 179 of Motor Vehicle Act, 1988. 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 Sections 143, 188 of IPC and Section 184, 179 of Motor Vehicle Act, 1988. Further, the complaint does not even state as to how the protest formed by the petitioners and others is an unlawful protest 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. 3/4
9.
Accordingly, the proceedings in Crime No. 221 of 2017, is quashed and the Criminal Original Petition is allowed. Consequently, connected miscellaneous petition is closed.
Sd/- Assistant Registrar (P&A) // True Copy // Sub Assistant Registrar(CS ) To
1. The Sub Inspector of Police Pandalkudi Police Station Virudhunagar District
2. The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai +1 CC to M/s.K.RAJESHWARAN, Advocate ( SR-91137[F] dated 03/10/2019 ) and CRL.M.P (MD)10684 of 2018 01.10.2019 aav MK (22.10.2019) 4P 4C 4/4