Madras High Court has held in Thirumoorthy& others v. State that that for taking cognizance of the offences under Section 188 of the Indian Penal Code, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.
The question for consideration before the single judge bench of Justice G. K. Ilanthiraiyan was whether the registration of case under Sections 143, 188 IPC, registered by the respondent police is permissible under law or not?
Court quoting the extract of section language of Section 195 (1) (a) of Cr. P.C said that no Court can take cognizance of an offence under Section 188 of IPC unless the public servant has written order from the authority, which was the submission of the counsel for the petitioner also.
The background of the case is that respondent police lodged a complaint that the members of Student Federation of India were unlawfully assembled in the place of AMMA Memorial and raised slogans against the Prime Minister Mr.Narendra Modi and the Chief Minister Mr.Edappadi Palanisamy for not revoking NEET Examination and also sought justice for the death of Anitha. Hence, they were arrested and FIR was registered against them for the offences under Section 143, 188, 353 of the Indian Penal Code.
Counsel for petitioner(s) submitted before the court that the petitioners have not indulged in any offences as alleged in the charge sheet. He said that the 1st petitioner Thirumoorthy is a practising advocate, who used to appear for Student Federation of India and other public causes and prayed for appropriate relief for the petitioners.
Counsel also submitted before the court that that the Supreme Court of India has held that the right to freely assemble and also right to freely express ones view or constitutionally protected rights under Part III of the Constitution 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 rights of freedom of speech and assembly and that is essential for a democracy.
Quoting Section 195(1)(a) of Cr.P.C., counsel submitted that no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority.
Further he submitted that the petitioner or any other members have never been involved in any unlawful assembly and there is no evidence that the petitioner or others restrained anybody. However, the officials of the 1st respondent police had beaten the petitioner and others, he said in his submission. When there was lot of members involved in the protest, the respondent police had registered this case, under Section 143, 341 and 188 of IPC as against the petitioner and others, he said, while seeking for quashing of the proceeding against the petitioners.
Court considering the facts and circumstances of the case said that except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioner. It also said that as is seen from the charge itself that the charges are very simple in nature and trivial.
Court said that in the case at hand, the First Information Report has been registered by the respondent police for the offences under Sections 143 188 and 353 IPC and latter 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 the IPC. Court said further that 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. It accordingly allowed the criminal petition of petitioners and ordered for quashing of FIR against them.
Petitioners were represented by Advocate V. Krishnamoorthy and respondents by M. Mohamed Riyaz in the case.
Read the Order Here