Police not competent to file FIR under sec 188 of IPC: Madras HC

The court relied on a precedent that held that the complaint should come from a public servant and the police can only exercise preventive action

Madras High Court

Madras High Court has quashed an FIR against a person who was booked under sections 143 and 188 of the IPC for protesting against Citizenship Amendment Act (CAA) without prior permission. The court held that the police officer was not competent to file the FIR as per guidelines set out in a precedent judgement and the case for unlawful assembly was also not made out against the petitioner.

The petitioner was arrested for protesting against CAA on a public road, without prior permission of the concerned authority. A case was registered under sections 143 (punishment for unlawful assembly) and 188 (Disobedience to order duly promulgated by public servant) of the Indian Penal Code.

The counsel for the petitioner, I. Abdul Basith, submitted that the apex court has held that the right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the right to freedom of speech and assembly, that is so essential to a democracy.

It was also brought to the notice of the court that as per Section 195(1)(a) of Cr.P.C. in order to take cognisance of an offence under section 188 of the IPC, there has to be a written order by the public servant.

The single judge bench of Justice GK Ilanthiraiyan, after hearing both counsels observed that except for the official witnesses no one was examined to substantiate the charges against the petitioner and that the charges are simple and trivial in nature. The court examined both, section 188 of IPC and Section 195(1)(a) of Cr.P.C. and further placed reliance on Jeevanandham and others Vs. State (2018-2-L.W. (Crl.) 606) whereby a bench of the High Court of Madras had issued certain guidelines to be followed when an offence under section 188 of IPC is concerned.

“25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:

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”

The guidelines further state that “No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC”.

While quashing the FIR, the bench stated, “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.”

The bench further observed, “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.”

The complete order may be read here.



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