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Madras High CourtCRL OP(MD)/16142/2019allowed

Ramaraj v. The Sub Inspector Of Police

2019-11-07Honourable Mr Justice G.K. Ilanthiraiyan4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.11.2019

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN and Crl.M.P.(MD).No.9605 of 2019 1.Ramaraj 2.Raja Arunmozhi ...

Petitioners Vs.

1.The Sub Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District, in Crime No.245 of 2014 2.M.Muthaiah ... Respondents PRAYER : Criminal Original Petition is filed under Section 482 of Cr.P.C. to call for the records in pursuant to the charge sheet in S.T.C.No.2187 of 2019, on the file of the learned Judicial Magistrate No.II, Srivilliputhur in Crime No.245 of 2014, on the file of the Sub Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District and quash the same as far as the petitioners are concerned.

For Petitioners : Mr.R.Ragavendran For R-1 : Mr.K.Suyambulinga Bharathi Government Advocate (Crl. Side)

ORDER

The Criminal Original Petition has been filed to quash the proceedings in S.T.C.No.2187 of 2019, on the file of the learned Judicial Magistrate No.II, Srivilliputhur, in Crime No.245 of 2014, on the file of the Sub Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District, as far as the petitioners are concerned.

2. The case of the prosecution is that the on 17.04.2014 at about 23.30 hrs, nearby Rajapalayam Alagai Nagar 1st Street, the petitioners are belonging to DMK Alliance party who election campaign for Dr.Krishnasamy in Television Symbol at 22.03 to 22.10 it is violation the Election code of conduct and using their vehicle bearing registration No. TN-59-AS-3299 in connection with the petitioners using vehicle No. TN 45 AR 8120. On the basis of the above said allegations, the respondent police registered the complaint and filed a charge sheet against these petitioners for 1/4

the offences under Sections 136 Representation of People Act 1950 r/w 143 and 188 of IPC in Crime No.245 of 2014 the same was taken cognizance by the learned Judicial Magistrate No.II, Srivilliputtur. The said criminal proceedings is under challenge in this Criminal Original Petition.

3. According to the petitioner, 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 after obtaining permission from the electoral officer the petitioners and others were went to election campaign and hence, the allegation regarding violating the election code of conduct is false and baseless. On precautionary measures, the respondent police had registered this case, under Section 143 and 188 of IPC as against the petitioners. Therefore, they sought for quashing the proceeding.

4. The learned Government Advocate(Crl.Side) submitted that the petitioners have violated the election code of conduct 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. Perused the material documents available on record.

6. On perusal of the charge, it is seen that the petitioners have violated the election code of conduct. Therefore, the respondent police levelled the charges under Sections 143 and 188 of I.P.C. as against the petitioners. 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 disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person 2/4

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 136 Representation of People Act 1950 r/w 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 petitioners have violated the election code of conduct 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. 2187 of 2019 in 3/4

Crime No. 245 of 2014, is quashed and the Criminal Original Petition is allowed.

Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (AS) // True Copy // Sub Assistant Registrar(CS) ksa To 1.The Judicial Magistrate No.II, Srivilliputhur, 2.The Sub Inspector of Police, South Police Station, Rajapalayam, Virudhunagar District, 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

+1 CC to M/s.R.RAGAVENDRAN, Advocate ( SR-96836[F] dated 07/11/2019 ) 07.11.2019 KM/(27.11.2019) 4P 5C 4/4