Chellathurai v. The Inspector of Police

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 06.02.2023 Delivered on : 28.04.2023 CORAM: THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR and Crl.M.P.(MD)Nos.1829 and 1831 of 2023

1.Chellathurai

2.Karthikairajan

3.Nagarajan

4.Nagentheran

5.Sivakumar

6.Chandran

7.Beththiraja

8.Balu

9.Dharmar @ Dharmaraj

10.Durairaja

11.Munishwaran

12.Karthikaisamy

13.Selvakumar

14.Kumar

... Petitioners/ Accused (in both the petitions)

vs.

1.The State represented by The Inspector of Police, Palamadu Police Station, Madurai District. ... 1st Respondent/ Complainant (in both the petitions)

2.The Village Administrative Officer, Palamedu, T.Vadipatti Taluk, Madurai District. ... 2nd Respondent/ Defacto Complainant (in both the petitions) COMMON PRAYER

: Criminal Original Petitions filed under Section 482 Cr.P.C., to call for the records relating to the proceedings in Crime Nos.4 and 5 of 2016 on the file of Balamedu Police Station, Madurai District and quash the same as far as the petitioners/Accused Rank Not Known. (in both the petitions) For Petitioners : Mr.R.Senthil Kumar For Respondents : Mr.M.Muthumanikkam Government Advocate (Crl. Side) COMMON ORDER These Criminal Original Petitions have been filed, invoking Section 482 Cr.P.C., seeking orders to call for the records relating to the cases in Crime Nos.4 and 5 of 2016 on the file of the first respondent police and quash the same in so far as the petitioners are concerned.

¶2The petitioners are the accused in the cases registered in Crime Nos.4 and 5 of 2016 on the file of Balamedu Police Station, Madurai District.

¶3The case of the prosecution in Crl.O.P.(MD)No.2081 of 2023 is that on 12.01.2016 at about 14.40 hours near Balamedu bus stand, the petitioners and the other accused had assembled unlawfully and conducted road-roko agitation for granting permission to conduct jalli kattu, despite the interim stay granted by the Hon'ble Supreme Court for conducting jalli kattu.

¶4The case of the prosecution in Crl.O.P.(MD)No.2085 of 2023 is that on 13.01.2016 at about 09.00 a.m., near Balamedu bus stand, the petitioners and the other accused had assembled unlawfully and conducted road-roko agitation for granting permission to conduct jalli kattu, despite the interim stay granted by the Hon'ble Supreme Court for conducting jalli kattu.

¶5The learned counsel appearing for the petitioners would contend that on 12.01.2016 public at large nearly 200 persons and on 13.01.2016 public at large nearly 500 persons assembled at Balamedu bus stand and conducted agitations against the ban of jalli kattu. Hence, the first respondent police has registered the cases in Crime No.4 of 2016 on

12.01.2016 against 200 persons (190 males and 10 females) and Crime No.5 of 2016 on 13.01.2016 against 500 persons for the offences under Sections 143 and 188 IPC.

¶6The learned counsel appearing for the petitioners would further contend that the Government of Tamil Nadu has decided to withdraw the cases registered during 2017 jalli kattu protest and the Government has issued G.O.(Ms)No.99 dated 20.02.2021 for dropping further action relating to the cases, in which, investigation is pending the Assistant Public Prosecutor in charge was directed to withdraw the cases by filing petition under Section 321 Cr.P.C. and that the above G.O. made on

20.02.2021 does not contain the case on hand.

¶7The learned counsel appearing for the petitioners would contend that FIRs came to be registered on 12.01.2016 and 13.01.2016, the first respondent police has filed the final reports on 23.12.2016, but the same were not taken on file.

¶8Regarding the offence under Section 143 IPC, it is necessary to refer the judgment of this Court in Jeevanandham and Others vs State, represented by the Inspector of Police, reported in 2018(2) LW (Crl.,) 606, and the relevant passage is extracted hereunder:- "32.............

¶2In all the cases, the assembly of persons were expressing dissatisfaction on the governance and claiming for 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 of 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."

¶9As rightly held in Jeevanandham's case, the violation of Section 30(2) of the Police Act will not constitute an offence under Section 143 IPC, as an order passed under Section 30(2) of the Police Act is only regulatory in nature, by which, the police cannot prohibit any agitations.

¶10In the case on hand, admittedly, it is not the case of the prosecution that the petitioners had indulged in any act of violence and that the petitioners and the other accused had assembled to raise their protest for banning jalli kattu in a peaceful manner. As rightly contended by the learned counsel appearing for the petitioners, the prosecution does not even state as to how the demonstration or the protest conducted by the petitioners and the others is an unlawful protest and as such, this Court has no hesitation to hold that the case of the prosecution does not satisfy the requirements of the Section 143 IPC.

¶11The learned counsel appearing for the petitioners would further contend 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.

¶12At 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: "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 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).

¶27Undoubtedly, 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."

¶13It 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 public servant concerned or some other public servant to whom he is administratively subordinate. A learned Single Judge of this Court in Jeevanandham's case, 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.

¶14Considering 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.

¶15Moreover, the learned counsel appearing for the petitioners would submit that one of the accused Subburajan in Crime Nos.4 and 5 of 2016 has filed petitions in Crl.O.P.(MD)Nos.20084 and 20016 of 2022 to call for the records relating to the proceedings in Crime Nos.4 and 5 of 2016 and to quash the same and the learned Judge of this Court, by relying on the decision of this Court in Jeevanandham's case and in case of Sri Raja Vs. Inspector of Police, Sivakasi Town Police Station, Virudhunagar District and other in batch of cases in Crl.O.P.(MD)No. 7922 of 2019 dated 30.08.2019 quashed the FIRs in so far as the petitioner therein was concerned.

¶16Viewed from any angle, the very registration of the FIRs is not maintainable. Hence, this Court concludes that the impugned FIRs are liable to be quashed.

¶17In the result, these Criminal Original Petitions stand allowed and the impugned FIRs in Crime Nos.4 and 5 of 2016 on the file of the first respondent is hereby quashed as against the petitioners herein. Consequently, connected Miscellaneous Petitions are closed.

28.04.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No csm To

1.The Inspector of Police, Palamadu Police Station, Madurai District.

2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

K.MURALI SHANKAR, J.

csm and Crl.M.P.(MD)Nos.1829 and 1831 of 2023 Dated : 28.04.2023