Written Complaint By Public Servant Mandatory For Taking Cognizance Of Offence U/S 188 IPC: Madras HC Quashes FIR Over Agitation To Shift TASMAC Shop
The Madurai Bench of Madras High Court has recently quashed an FIR registered against protesters who assembled before a TASMAC Shop in 2017 and demanded that it must be shifted for the sake of young generation.While quashing the FIR registered based on the complaint of Village Administrative Official and taken on the file of the Judicial Magistrate, Justice K. Murali Shankar observed that...
The Madurai Bench of Madras High Court has recently quashed an FIR registered against protesters who assembled before a TASMAC Shop in 2017 and demanded that it must be shifted for the sake of young generation.
While quashing the FIR registered based on the complaint of Village Administrative Official and taken on the file of the Judicial Magistrate, Justice K. Murali Shankar observed that the prosecution has failed to establish that the ingredients of the offences under which they were booked are made out.
The petitioners had filed a petition seeking quashing of the FIR registered under Sections 143 [Unlawful Assembly], 188 [Contempt of lawful authority of public servants], 341 [Wrongful Restraint] and 353 I.P.C [Assault or criminal force to deter public servant from discharge of his duty].
The court observed that the FIR was registered against 23 persons including 14 women without considering the clear bar on taking cognizance of an offence under Section 188 I.P.C. without a complaint, as contemplated under Section 195 Cr.P.C.
The court, after placing reliance on the Supreme Court judgment in C. Muniappan & Ors vs State Of Tamil Nadu (2010), noted its findings that Section 195 Cr.P.C bars taking cognizance of any offence punishable under Sections 172 to 188 I.P.C., except on a complaint in writing given by the public servant concerned or some other public servant to whom he is administratively subordinate.
"...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 charge sheet laid under Section 188 I.P.C., has to necessarily be quashed."
The case of the prosecution was that the petitioners gathered before a TASMAC shop in Sivagangai District without getting permission from the Police and demanded the closure of TASMAC shop while obstructing traffic and free movement of public. They were also accused of interfering so as to prevent TASMAC workers from discharging their duties.
The petitioners argued that the gathering was peaceful and solely meant for protection of their village and its young generation who could be badly influenced by the TASMAC Shop.
Regarding Section 353 IPC, the court added that it can't be invoked when there are no allegations that the protestors used criminal force or assaulted the TASMAC staff to deter them from discharging their duties.
For reaching the above conclusion, the court referred to Manik Taneja & Anr. v. State of Karnataka & Anr (2015) 7 SCC 423, wherein it was held that an essential ingredient of Section 353 IPC is the use of criminal force or assault on public official to prevent him from carrying on with his duties.
About the police including Section 143 and 341 IPC in the charge sheet, the court further relied on Jeevanandham and Others vs State to explain that none of the essential ingredients required to constitute the said offences have not been made out.
In the said judgment, the court had upheld the right to show democratic dissent. The judgment also stated that every assembly of persons expressing their discontent with the governance cannot be harassed by registering an FIR under Section 143.
Jeevanandham judgment also makes an observation that every agitation is likely to cause some obstruction to the movement of public for sometime which cannot be considered as 'restraint' in the Section.
"...the violation of Section 30(2) of the Police Act will not constitute an offence under Section 143 I.P.C., 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. 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 petitioners have assembled and conducted an agitation to shift the TASMAC shop 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."
The court also observed that prohibition is a policy matter of the government. However, it must also pay heed to the constitutional mandate and function in the larger public interest.
Referring to Re-Ramlila Maidan Incident dated.4/5.06.2011 v. Home Secretary, Union of India & Ors, (2012)5 SCC 1, the court also iterated that the dharnas and agitations are the basic features of the democratic system.
Accordingly, the criminal original petition was allowed and the FIR was quashed.
Case Title: Palaniyappan & Ors. v. State & Ors.
Case No: Crl.O.P.(MD)No.10932 of 2019 and Crl.M.P.(MD)Nos.6876 and 6877 of 2019
Appearance: For Petitioners: Mr. R.Ganeshprabu; For Respondents: Mr.R.Sivakumar, Government Advocate (Crl.Side) for R.1; No Appearance for R.2
Citation: 2022 LiveLaw (Mad) 36