This post is a case digest on Quashing of FIR under Section 188 IPC by Madras High Court where before registering of FIR mandatory compliance of Sec 195 CrPC should have been done. Since in this particular case, the compliance was not done and the complaint do not assert making of unlawful assembly, the present FIR was quashed by Madras High Court.
For similar nature of offences, the same petition is maintainable before Punjab Haryana High Court for FIR’s registered under Sec 188 IPC and other connected matters. One can also seek free legal advice online on Legal Matters pertaining to Quashing of FIR from best Criminal lawyers of High Court Chandigarh also.
Shylendar vs Inspector Of Police on 13 February 2019
Petioner
Shylendar
Respondent
Inspector of Police, Saidapet, Chennai
In the instant case, a Criminal Original Petition was filed to quash the proceedings instituted before the Metropolitan Magistrate, Saidapet, Chennai, wherein cognizance for the offences under Section 143 and 188 IPC were taken against the petitioner.
The case of the prosecution was that I’m 06.05.2016 at around 4:30 p.m, the petitioner along with other accused orchestrated a protest, opposing the visit of the Prime Minister to Chennai, without obtaining prior permission from the concerned authority. On the basis of the same allegation, the respondent registered a complaint and filed a charge sheet against the petitioner and others for the offences under Section 143 and 188 IPC before the Learned Metropolitan Magistrate, Saidapet
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The counsel for the petitioner submitted that the petitioner was a social activist and has raised his voice against the injustice and inefficiency of the governing body in order to ensure the welfare of the public on numerous instances. In order to draw the attention of the Central and the State Government, the petitioner along with several other members protested against the visit of the Prime Minister to Chennai. The Learned counsel also submitted that the Hon’ble Supreme Court of India, on multiple occasions, has held that the right to assemble peacefully and the right to freely express one’s view are constitutionally protected under Part III and the same cannot be abrogated by the arbitrary actions of the State. The learned counsel maintained that it is the duty of the State to protect the rights of freedom of speech and expression and the right to assemble peacefully as these rights are indispensable in a democracy. He further stated that according to Section 195(1)(a) Cr.P.C, no court can take cognizance of an offence under Section 188 IPC, unless the public servant has a written order from the concerned authority. Furthermore, the petitioner or any other members have never been involved in any unlawful assembly and there is no iota of evidence that the petitioner restrained any person or body of persons. The Learned counsel also doubted the intent of the respondent-police and questioned why the respondent-police booked the petitioner and a few other members when there were a lot of members involved in the protest.
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On the contrary, the learned Additional Public Prosecutor submitted that the petitioner staged a protest along with others and there were specific allegations against the petitioner to proceed with the trial. He further submitted that the offence under Section 188 IPC is a cognizable offence and hence it is the duty of the police to register a case and although Section 195(1)(a)Cr.P.C puts a bar to take cognizance under Section 188 IPC, it does not necessarily mean the police cannot register an FIR and investigate the case. It was further submitted by the Additional Public Prosecutor that the petitioner was a habitual offender and prayed for the dismissal of the petition.
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To summarize the issue in hand, the petitioner and others were booked under Section 143 and 188 IPC for staging a protest towards the visit of the Prime Minister to Chennai, without prior permission of the concerned authorities. Except for the official witnesses, no one has enunciated about the occurrence and no one was examined to substantiate the charges against the petitioner. The only question before the Hon’ble High Court was whether the registration of cases under Sections 143, 188 IPC by the respondent-police is permissible under the law?
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The Hon’ble Court attempted to answer the pertinent question by explaining Section 195(1)(a) Cr.P.C, the Court stated Section 195 provides that, No court shall take cognizance
- Of any offence punishable under section 172 to 188 of the IPC, or
- Of any abutment of, attempt to commit, such offence, or
- Of any criminal conspiracy to commit, such offences, except on the complaint in writing of the concerned public servant.
Thus, it is very apparent in order to take cognizance of the offences under Section 188 IPC, the concerned public servant should lodge a complaint in writing and other than that no Court has the power to take cognizance.
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The Court accepted the Learned counsel for the petitioner’s argument wherein he relied upon Mahaboob Basha Vs. Sambanda Reddiar and others reported in 1994[1] and Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, in which guideline for offences under Section 188 IPC were laid down, it noted that
- A police officer cannot register an FIR for any offence falling under section 172 to 188 IPC
- A Police officer by virtue of the powers conferred on him under Section 41 Cr.P.C will have the necessary power to take action when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required to prevent a person from committing an offence under Section 188 IPC
- The Police action is only preventive in nature and the Police Officer has to immediately inform the concerned public servant about such actions as undertaken by him under Section 41 Cr.P.C to enable such public servant to file a complaint in writing before the Judicial Magistrate.
- The Magistrate shall take cognizance of the complaint only after it appears prima facie to him that a case under Section 188 IPC is made out.
- The written complaint of the public servant shall have the following ingredients;
- There must be an order promulgated by a public servant who is lawfully empowered to promulgate it
- That the person with the knowledge of such order is directed to abstain from doing certain acts or take certain order with certain property in his possession, has defied
- That such disobedience causes or tends to cause
- Obstruction, annoyance, or risk, to any person lawfully employed;
- Danger to human life, health and safety;
- A riot or disturbance to public tranquillity.
- The promulgation issued under Section 30(2) of the Police Act, 1861, must be reasonable. and regulatory in nature and should not trifle any democratic dissent of the citizens and such promulgation must done in public and private information will not be as promulgation.
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The Court held that in the instant case the FIR was registered by the respondent-police for the offence under Section 143 and 188 IPC. In the opinion of the court, the respondent is not competent to register an FIR under Section 188 of IPC and therefore the FIR is liable to be quashed for the offences under Section 188 IPC. Furthermore, the complaint does not assert that the petitioner and the other members formed an unlawful assembly and fails to satisfy the requirements of Section 143 IPC, therefore, the final report cannot be sustained is hence liable to be quashed.
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Consequently, the proceedings before the learned Metropolitan Magistrate, Saidapet, Chennai is quashed and the Criminal Original Petition is allowed.
For case specific advice, please contact best/top/expert Criminal Lawyers Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur of Punjab Haryana High Court.
This post is written by Aniket Rai. More on 99888-17966.
[1]) Crimes, Page 477.
