Police Can't Register FIR For Offences Under Sections 172 To 188 IPC, Madras HC Quashes FIR Against Anti-CAA Protestor [Read Order]

The Madras High Court has quashed an FIR registered against a person accused of protesting in the public road against the implementation of the Citizenship Amendment Act,2019 without getting prior permission from the concerned authority.

Shamsul Huda Bakavi was charged under Sections 143 and 188 of Indian Penal Code for protesting on a public road without permission. He moved the High Court seeking to quash the FIR on the ground that according to Section 195(1)(a) of the Code of Criminal Procedure, no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority.

Perusing the files, Justice G.K. Ilanthiraiyan  noted that the First Information Report has been registered by the police for the offences under Sections 143 and 188 IPC. The court also added that in Jeevanandham and others Vs. State, it was held that a Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC. The bench, while quashing the FIR, said:

"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."

in Jeevanandham and others Vs. State, the following guidelines were issued regarding the registration of FIR for an offence under Section 188 of IPC:

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. 

Case name: Shamsul Huda Bakavi vs. State
Case no: CRL. O.P. No. 9487 of 2020
Counsel: Adv. I. Abdul Basith and APP M. Mohamed Riyaz 
Coram: Justice G.K. ILANTHIRAIYAN

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