Crl.OP filed to quash proceedings for Sections 143 and 188 IPC regarding a protest. Court held police cannot register FIR for Section 188 IPC offences. FIR and final report quashed for Section 188; final report for Section 143 also quashed.
Proceedings in Crime No.105 of 2020 quashed for offences under Section 143 and 188 IPC; Criminal Original Petition allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.08.2020
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P.No.11693 of 2020 and Crl.M.P.No.4694 of 2020
Musthak Basha ... Petitioner/Accused
Vs.
State rep by its
The Sub Inspector of Police,
Tiruvannamalai Town Police Station,
Tiruvannamalai
(Cr. No.105/2020) ... Respondent/Complainant
PRAYER: Criminal Original petition is filed under Section 482
of Criminal Procedure Code, to call for the records relating
to the case in Crime No.105 of 2020 on the file of the
respondent herein and quash the same.
For Petitioner : Mr.J.Abdul Basith For Respondent : Mr.S.Karthikeyan Additional Public Prosecutor. ORDER
This Criminal Original Petition has been filed to quash the proceedings in Crime No.105 of 2020 on the file of the respondent for the offences under Sections 143 and 188 of I.P.C. as against the petitioner.
whenever injustice and inaction of the government machineries. In order to draw the attention of the Central and State Governments, the petitioner and other persons had protested against the Central Government for its failure to prevent the atrocities unleashed upon the Anti-CAA protester by the Delhi Police. The learned counsel further submitted that the Hon'ble Supreme Court of India has held that the right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the rights of freedom of speech and assemble that is so essential to a democracy. 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 and other persons had never involved in any unlawful assembly and there is no evidence that the petitioner and other persons restrained anybody. However, the officials of the respondent police had beaten the petitioner and other persons. When there was lot of members involved in the protest, the respondent police had registered this case, under Sections 143 and 188 of IPC as against the petitioner and other persons. Therefore, he sought for quashing the proceeding.
substantiate the charges against the petitioner and other persons. 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.
“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.
reported in 1994(1) Crimes, Page 477. He also relied upon a judgment in a batch of quash petitions, reported in 2018-2L.W. (Crl.) 606 in Crl.O.P. (MD)No. 1356 of 2018, dated 20.09.2018 in the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, and this Court held in Paragraph-25, as follows :-
"25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:
a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.
c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
d) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;
i) that there must be an order promulgated by the public servant;
ii) that such public servant is lawfully empowered to promulgate it;
iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and
iv)that such disobedience causes or tends to cause;
(a) obstruction,annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety; or (c) a riot or affray.
e) The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
f) The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
g) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C. h) The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195 (1)(a)(i) of Cr.P.C.
Sd/-
Assistant Registrar(CS-III)
//True copy//
Sub Assistant Registrar
uma
To
and Crl.MP.No.4694 of 2020
MG(CO) GMY(24/09/2020)
3 issues framed by the court
Whether a police officer has the competence to register an FIR for offences under Sections 172 to 188 of the Indian Penal Code under Section 195(1)(a) of Cr.P.C.
Whether the First Information Report for Section 188 IPC is liable to be quashed due to lack of written complaint by the public servant.
Whether the requirements of Section 143 IPC were satisfied in the instant case.
Colour shows how this judgement treated each authority
Mahaboob Basha Vs. Sambanda Reddiar and othersRelied on¶20
Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994(1) Crimes, Page 477
Jeevanandham and others Vs. StateRelied on¶21
Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, 2018-1L.W. (Crl.) 606
3 provisions across 2 enactments
Musthak Basha
State rep by its The Sub Inspector of Police, Tiruvannamalai Town Police Station, Tiruvannamalai
G.K.ILANTHIRAIYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
