Allowed

Periyasamy v. The Inspector of Police

Madras HC6 Feb 2023CRL OP(MD)/1067/2023

Case brief

AI extract

What is this about?

The High Court quashed an FIR and Final Report regarding protest agitation under Sections 341, 143, and 188 IPC. The Court held that the proceedings under Section 188 IPC were void due to absence of a complaint by a competent public servant, and the other charges lacked necessary material. The Crl.O.P. was allowed.

What did the court decide?

The impugned FIR in Crime No.36 of 2018 and the connected Final Report are quashed.

Periyasamy Vs The Inspector of Police — Writ and Judicial Review | Madras HC (2023)

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Crl.O.P.(MD)No.1067 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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Reserved on : 23.01.2023

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Delivered on : 06.02.2023

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CORAM

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THE HON'BLE MR.JUSTICE K.MURALI SHANKAR

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Crl.O.P.(MD)No.1067 of 2023 and Crl.M.P.(MD)No.976 of 2023

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Periyasamy ... Petitioner

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Vs.

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1.State rep.by The Inspector of Police, Thideer Nagar Police Station, Madurai City. Crime No.36 of 2018.

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2.S.Rathinavelu ... Respondents

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PRAYER : Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records relating to the First Information Report in Crime No.36 of 2018 on the file of the respondent Police and quash the same as against the petitioner.

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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For Petitioner : Mr.D.Srinivasa Raghavan, For R1 : Mr.M.Muthumanikkam, Government Advocate (Criminal Side)

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ORDER

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This Criminal Original Petition has been filed, invoking Section 482 Cr.P.C., seeking orders, to call for the records relating to the case in Crime No.36 of 2018 on the file of the respondent Police and quash the same as against the petitioner.

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The case of the prosecution is that on 23.01.2018, at about 11.00 am in front of the North Gate of Madurai Periyar Bus Stand, under the leadership of the District Secretary of Communist Party of India (Marxist), 161 men and 16 women assembled unlawfully and raised slogans against the bus fare hike in Tamil Nadu; that by sitting in the road and not allowing the buses to proceed, caused disturbance to the public and therefore, they were arrested and were taken to Thideer Nagar Police Station and on that basis, FIR came to be registered in Crime No. 36 of 2018 for the offence under Sections 341, 143 and 188 IPC, against 178 persons, including the petitioner herein.

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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The petitioner is the 114^th accused in Crime No.36 of 2018 on the file of the respondent Police.

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4.The case of the petitioner is that there was a bus fare hike and

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against which, the Communist Party of India (Marxist) conducted statewide slogan raising agitation in all Districts of Tamil Nadu; that the petitioner was in no way connected with the alleged offence and he is innocent; that there is no specific overt act attributed against the petitioner; that the petitioner has never committed any offence as alleged and that therefore, he is constrained to file the above petitioner, invoking Section 482 Cr.P.C.

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The learned counsel for the petitioner would submit that there is a clear bar for taking cognizance of an offence under Section 188 IPC, without a complaint, as contemplated under Section 195 Cr.P.C.

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This Court in Vijay Vs. State represented by the Inspector of Police, Panagudi Police Station, Tirunelveli District in (Crl.OP(MD) Nos.8680 and 8681 of 2019; dated 02.02.2022), has dealt with the same

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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issue and came to the decision that the complaint must be given by a public servant who is lawfully empowered under Section 195 Cr.P.C., and it is mandatory and the relevant passages are extracted hereunder :

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“ 14.At this juncture, it is necessary to refer the judgment of the Honourable Supreme Court in C. Muniappan & Ors vs State Of Tamil Nadu in CRIMINAL APPEAL Nos. 127-130 of 2008 , dated 30.08.2010 and the relevant passages are extracted hereunder:

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“20. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).

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27. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC.”

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15.It is pertinent to note that Section 195 Cr.P.C, bars taking cognizance of any offence punishable under Sections 172 to 188 IPC, except on a complaint in writing given by the

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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public servant concerned or some other public servant to whom he is administratively subordinate. A learned Single Judge of this Court in Jeevanandham and Others vs State, represented by the Inspector of Police, reported in 2018(2) LW (Crl.,) 606 , after surveying the judgments of the Honourable Apex Court and of this Court, has held that the Police Officer cannot register a First Information Report, for an offence under Section 188 IPC, and the Judicial Magistrate cannot take cognizance of the offence, based on the final report filed under Section 173 Cr.P.C.

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16.Considering the above, the position of law is well settled that there must be a complaint by a public servant who is lawfully empowered under Section 195 Cr.P.C., and it is mandatory and that therefore, the non-compliance of the same, will make the proceedings void ab initio and as such, the final report filed for the offence under Section 188 IPC, has to be quashed .”

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The above decision is squarely applicable to the case on hand

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and on applying the same, this Court has no hesitation to hold that the final report filed under Section 188 IPC, is liable to be quashed.

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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Regarding Section 143 IPC, the learned counsel for the

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petitioners has relied on the judgment of this Court in Crl.O.P(MD) No.12612 of 2022 (Annadurai Vs.The Inspector of Police, South Gate Police Station, Madurai and another ), dated 06.09.2022 and the relevant passage is extracted hereunder :

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“ 9.In the case on hand, the First Information Report has been registered by the respondents / police for the offences also 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 protest formed by the petitioner 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.”

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The learned counsel for the petitioner would submit that the

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protest by the party workers for bus fare hike is a democratic right and the same would not constitute an offence under Section 143 IPC.

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As rightly contended by the learned counsel for the petitioners,

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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the prosecution does not even state as to how the demonstration conducted by the party workers is an unlawful protest and as such, this Court has no hesitation to say that the case of the prosecution does not satisfy the requirements of the Section 143 IPC.

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Now turning to the offence under Section 341 IPC, it is necessary to refer the following passage in Jeevanandham and Others vs State, represented by the Inspector of Police, reported in 2018(2) LW (Crl.,) 606.

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“32.............

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2.In all the cases, the assembly of persons were

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expressing dissatisfaction on the governance and claiming for

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minimum rights that are guaranteed to an ordinary citizen. If such an assembly of persons are to be trifled by registering an FIR under Section 143 IPC and filing a Final Report for the very same offence, no democratic dissent can ever be shown by the citizens and such prohibition will amount to violation of fundamental rights guaranteed under the Constitution. A reading of the Final Report also does not make out an offence

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https://www.mhc.tn.gov.in/judis

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under Section 341 Cr.P.C since any form of an agitation, will

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necessarily cause some hindrance to the movement of the

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general public for sometime. That by itself, does not constitute an offence of a wrongful restraint.

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The prosecution in order to invoke Section 341 I.P.C., has to establish that a person voluntarily obstructed any person so as to prevent that person from proceeding in any direction in which a person has a right to proceed. In the case on hand, as already pointed out, the party workers of CPI (Marxist) had assembled and conducted agitation protesting the bus fare hike in the State of Tamil Nadu and there is absolutely no material to show that they have voluntarily obstructed any person. Even assuming that there existed some hindrance for the movement of the general public for some time, as rightly held in Jeevanandham's case, that by itself does not constitute an offence of wrongful restraint. Considering the above, this Court has no hesitation to hold that the final report does not make out any offence of the wrongful restraint.

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https://www.mhc.tn.gov.in/judis

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Crl.O.P.(MD)No.1067 of 2023

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Considering the above, this Court has no hesitation to hold that

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the impugned FIR in Crime No.36 of 2018 on the file of the respondent Police, is liable to be quashed.

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In the result, the Criminal Original Petition is allowed and the FIR in Crime No.36 of 2018 on the file file of the Inspector of Police, Thideer Nagar Police Station, Madurai City, is quashed. Consequently, connected Miscellaneous Petition is closed.

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06.02.2023

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NCC : Yes/No Index : Yes / No Internet : Yes / No das

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