Karnataka High Court
Sri Sathish Reddy M vs State By Bommanahalli on 11 July, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 508 OF 2025
BETWEEN:
SRI. SATHISH REDDY M,
S/O LATE MUNI REDDY,
AGED ABOUT 52 YEARS,
R/AT NO. 123, BEGUR MAIN ROAD,
HONGASANDRA, NEAR ANJENAYA TEMPLE,
BOMMANAHALLI, BANGALORE - 560 068.
MEMBER OF LEGISLATIVE ASSEMBLY
BOMMANAHALLI CONSTITUENCY,
BANGALORE - 560 068.
...PETITIONER
(BY SRI. GAURAV H.S, ADVOCATE)
Digitally signed AND:
by
SHARADAVANI
B 1. STATE BY BOMMANAHALLI
Location: High POLICE STATION, BANGALORE,
Court of
Karnataka REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA - 560 001.
2. POLICE INSPECTOR,
BOMMANAHALLI POLICE STATION,
ROOPANA AGRAHARA, BOMMANAHALLI,
BANGALORE - 560 068.
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA, ADDL. SPP FOR R1 AND R2)
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THIS CRL.P IS FILED U/S 482 OF CR.PC (FILED U/S 528
BNSS) PRAYING TO QUASH THE REGISTRATION OF FIR IN CR
NO. 439/2023 AGAINST THE PETITIONER REGISTERED BY
BOMMANAHALLI POLICE STATION REGISTERED BEFORE THE
CHIEF METROPOLITAN MAGISTRATE AT BANGALORE FOR THE
OFFENCES PUNISHABLE SECTION 143, 188, 268 R/W 149 OF
IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, petitioner seeks the following reliefs:
(i) Call for records, if necessary.
(ii) To quash the registration of FIR in
Cr.No.439/2023 against the petitioner
registered by Bommanahalli Police registered
before the Chief Metropolitan Magistrate at
Bangalore for the offences punishable under
Section 143, 188, 268 read with 149 of IOC in
the interest of justice and equity.
(iii) Grant such other order or orders, which this
Hon’ble court may be pleased to pas in the
circumstances of the case, to stall the abuse of
process of court, in the interest of justice.
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2. A perusal of the material on record will indicate that
pursuant to a complaint dated 02.12.2023 given by the
respondent No.2; the respondent No.1-police authorities
registered an FIR in Crime No.439/2023 for the offences
punishable under Sections 143, 149, 188 and 268 read with
Section 149 of Indian Penal Code, 1860.
3. In this context, the impugned complaint deserves to
be extracted as hereunder:
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4. A perusal of the impugned complaint will indicate
that though the complainant alleges violation of the Licensing
And Regulation Of Protest Demonstration And Protest Marches,
(Bengaluru City) Order, 2021, the said provision has not been
invoked while registering the impugned FIR against the
petitioner, since, the said enactment does not contain any
penal provision for the police authorities to take action as
against the petitioner.
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5. Before adverting to the rival submissions as regards
applicability of Section 143 and 149 are concerned, it would be
necessary to refer to a judgment of a coordinate bench of this
court in ATHAULLA JOKATTE AND OTHERS. VS. THE STATE
OF KARNATAKA AND ANOTHER passed in
Crl.P.No.4902/2023 dated 19.06.2023, wherein it is held
as under:
The petitioners are before this Court calling in
question the proceedings in Criminal Case No.1131 of
2020 pending on the file of the II Judicial Magistrate
First Class Court, Mangaluru, registered for the offences
punishable under Sections 143, 147, 148, 427, 336,
120B, 109 read with Section 149 of the Indian Penal
Code, 1860, and Section 2(A) of the Karnataka
Prevention of Destruction and Loss of Property Act,
1981.
2. Heard Sri Lethif B., learned counsel
appearing for the petitioners, and Smt. K.P. Yashoda,
learned High Court Government Pleader appearing for
respondent No.1.
3. Learned counsel appearing for the
petitioners submits that the issue in the lis stands
covered by the judgment rendered by this Court in
Criminal Petition No.6763 of 2020 disposed of on 11-3-
2022. This Court following the earlier judgment
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rendered by a Co-ordinate Bench of this Court has held
as follows:
“2. The issue in the petition is akin to what is
decided in Crl.P.No.3916/2018 disposed on
17.02.2020, wherein this Court has examined the
identical facts and offences alleged against the
petitioners therein. While so examining, this
Court has held as follows:
“4. The gist of the complaint is that on
23.05.2017 at about 11.30 a.m.,
received a credible information that a
group of people gathered on Queen’s Road
shouting slogans against the Government.
Immediately, he went to the spot and
found that 50 young men assembled
illegally and disturbed the public and
vehicles without prior permission from the
station. On enquiry he found that they are
the members of Campus Front of India
Karnataka and protesting against
interference religious and personal
freedoms by imposing dress code in ‘AIIMS
Exam’ which is against the personal and
religious rights of our Constitution.
Immediately they were disbursed and a
case has been registered and after
investigation, the charge sheet has been
filed.
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5. It is the submission of the learned
counsel for petitioners that though there is
no substantial material as against
petitioners/ accused Nos.1 to 48, the
respondent have investigated the case and
have filed the charge sheet against
petitioners/accused Nos.1 to 48. It is his
further submission that in order to file a
charge sheet under Section 143 of IPC, the
unlawful assembly must satisfy the
ingredients as contemplated under Section
141 of IPC but none of the ingredients are
satisfied in this case. It is his further
submission that mere presence in an
unlawful assembly, cannot render a person
liable unless there was a common object,
they were actuated by the common object
and that object is one of those set out
under Section 141 of IPC. It is his further
submission that if the common object of an
unlawful assembly is not proved, the
accused persons cannot be convicted either
under Section 143 of IPC or under Section
149 of IPC. It is his further submission that
the prosecution has to prove the overt-acts
as against the persons who have been
alleged as a member of unlawful assembly.
In order to substantiate his said contention,
he has relied upon the decision of the
Hon’ble Apex Court in the case of CHARAN
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SINGH AND OTHERS Vs. STATE OF
UTTAR PRADESH reported in (2004) 4
SCC 205. It is his further submission that
as per the Licensing and Controlling of
Assemblies and Public Processions
(Bangalore City) Order 2009, the
permission is required in Bangalore City if
the congregation of more than 250 persons
assembling at one place with an intention
to conduct the meeting, protest, to hear a
public speech including political, social,
religious and cultural meetings to which the
public have got free access. The said
condition specially says that no permission
or license is required in Bangalore City if
the congregation of more than 250 persons
assembling at one place with an intention
of conducting meeting to protest. It is the
specific submission that petitioners/accused
Nos.1 to 48 have given the letter dated
20.05.2017 seeking permission but no such
permission is granted by the Commissioner
of Police., under such circumstance, the
said assembly cannot be held as an
unlawful assembly and the provisions of
Sections 141, 143, 147, 149, 188 of IPC
are not attracted. On these grounds, he
prayed to allow the petition and to quash
the proceedings.
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6. Per contra, learned High Court
Government Pleader vehemently argued
and submitted that as per the Licensing
and Controlling of Assemblies and Public
Processions (Bangalore City) order, 2009
the congregation of more than 250 persons
is required but as per Section 141 of IPC,
an assembly of five or more persons is
considered to be an unlawful assembly and
if they have assembled with a common
object, then under such circumstance,
accused persons can be prosecuted for the
alleged offences. It is his further
submission that the contents of the
complaint and other materials clearly
indicate that they were intending to
proceed to Raj Bhavan in that light, they
have obstructed the public traffic, public
movement and thereby, they have violated
the provisions of Section 141 of IPC and
other provisions of law. It is his further
submission that there are independent eye-
witnesses and they have also categorically
stated with regard to the overt-acts of each
of the accused persons and there is ample
materials to connect the accused persons
to the alleged crime. On these ground, he
prayed to dismiss the petition.
7. I have carefully and cautiously gone
through the submissions made by the
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learned counsel appearing for both the
parties and perused the records.
8. On perusal of records, it is the case
of the prosecution that the
petitioners/accused Nos.1 to 48 have
assembled and were protesting against
interference and dress code imposed by
AIIMS exam and also have not obtained
any permission from the concerned
Authorities. But as could be seen from the
Licensing and Controlling of Assemblies and
Public Processions (Bangalore City) Order,
2009 assembly means a congregation of
more than 250 persons assembling at one
place with an intention of conducting
meeting or protest, to hear a public speech
including political, social, religious and
cultural meetings to which the public have
got free access, license is required only
when more than 250 persons are there.
Admittedly in the instant case, the contents
of the complaint and other materials
indicates that only 50 persons have
assembled. In that light, a license said to
have been is not necessary as per the
Order of 2009. The only question which
remains for consideration of this Court is
that whether the assembly of
petitioners/accused Nos.1 to 48 had
constituted an unlawful assembly as per
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Section 141 of IPC? In order to attract the
said provision, the assembly must satisfy
five ingredients which have been stated
therein but on close reading of the contents
of the complaint, charge sheet material and
other materials, it indicates that none of
the ingredients are present as
contemplated under Section 141 of IPC.
9. Be that as it may. If 50 persons have
assembled at a particular place, then under such
circumstance, it cannot be held as an unlawful
assembly. Mere presence of a person in an
unlawful assembly cannot render a person liable
unless there was a common object and he was
actuated by that common object and that object
is one of those set out in Section 141 of IPC. This
proposition of law has been laid down by the
Hon’ble Apex Court in the case of CHARAN
SINGH (Quoted supra) at paragraph No.13, it
has been observed as under:
“13. Coming to the others who were armed
with double-barrelled guns and country-
made pistols, the question is regarding
applicability of Section 149 IPC. Section
149 IPC has its foundation on constructive
liability which is the sine qua non for its
operation. The emphasis is on the common
object and not on common intention. Mere
presence in an unlawful assembly cannot
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render a person liable unless there was a
common object and he was actuated by
that common object and that object is one
of those set out in Section 141. Where
common object of an unlawful assembly is
not proved, the accused persons cannot be
convicted with the help of Section 149. The
crucial question to determine is whether
the assembly consisted of five or more
persons and whether the said persons
entertained one or more of the common
objects, as specified in Section 141. It
cannot be laid down as a general
proposition of law that unless an overt act
is proved against a person, who is alleged
to be a member of an unlawful assembly, it
cannot be said that he is a member of an
assembly. The only thing required is that
he should have understood that the
assembly was unlawful and was likely to
commit any of the acts which fall within the
purview of Section 141. The word “object”
means the purpose or design and, in order
to make it “common”, it must be shared by
all. In other words, the object should be
common to the persons, who compose the
assembly, that is to say, they should all be
aware of it and concur in it. A common
object may be formed by express
agreement after mutual consultation, but
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that is by no means necessary. It may be
formed at any stage by all or a few
members of the assembly and the other
members may just join and adopt it. Once
formed, it need not continue to be the
same. It may be modified or altered or
abandoned at any stage. The expression
“in prosecution of common object” as
appearing in Section 149 has to be strictly
construed as equivalent to “in order to
attain the common object”. It must be
immediately connected with the common
object by virtue of the nature of the object.
There must be community of object and
the object may exist only up to a particular
stage, and not thereafter. Members of an
unlawful assembly may have community of
object up to a certain point beyond which
they may differ in their objects and the
knowledge, possessed by each member of
what is likely to be committed in
prosecution of their common object may
vary not only according to the information
at his command, but also according to the
extent to which he shares the community
of object, and as a consequence of this the
effect of Section 149 IPC may be different
on different members of the same
assembly.”
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10. On close perusal of the charge sheet
material, it indicates that none of the ingredients
specify in Section 141 of IPC are present so as to
attract the provisions of Sections 141, 143, 149,
188 of IPC. When that being the case, then under
such circumstances, the proceedings initiated as
against petitioners/accused Nos.1 to 48 appears
to be not in accordance with law and the same is
liable to be quashed.
11. Accordingly, petition is allowed and the
proceedings initiated in C.C. No.23259/2017
pending on the file of VIII Additional CMM,
Bengalulru for the offence punishable under
Section 143 read with Section 149 of IPC is
hereby quashed.”
The aforesaid order passed by a Co-ordinate
Bench of this Court would cover, the case at hand
on all its fours. That apart, there were no
witnesses that would speak about the incident
alleged against the petitioners which has
happened in a broad day light, apart from all the
witnesses examined being police officials.”
4. Therefore, in the light of the order passed by
the Co-ordinate Bench of this Court supra, the
following:
ORDER
i. Criminal petition is allowed.
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ii. Proceedings pending in Criminal Case
No.1131 of 2020 before the II Judicial
Magistrate First Class Court, Mangaluru,
stands quashed.
5. So also the judgment in PRAKASH KARAT AND
OTHERS VS. STATE OF KERALA REPRESENTED BY THE
PUBLIC PROSECUTOR AND ANOTHER, 2022 SCC ONLINE
KER 5243, the Kerala High Court held as under:
(1.) The Association of South East Asian Nations
(ASEAN) was formed between ten nations of South East
Asia. On 13/8/2009, India entered into a trade
agreement with the ASEAN countries. The signing of the
agreement was not well received by a few of the political
parties. In a bid to compel the Union Government to
withdraw from the ASEAN free trade agreement, the
Communist Party of India (Marxist) decided to form a
Statewide human chain in Kerala to be lined up on the
sides of the National Highway. The human chain is
alleged to have been created over a distance of 500
kilometres, from Kasaragode in the north to
Thiruvananthapuram in the south.
(2.) An Advocate practising in the courts at
Thiruvananthapuram preferred a private complaint
before the Judicial First Class Magistrate Court,
Thiruvananthapuram alleging that the human chain
formed on 2/10/2009 between 5 p.m. to 8 p.m. at the
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behest of accused 1 to 12 and 10,000 other identifiable
persons resulted in the commission of offences under
Sec. 143, 147, 149 and 283 of the Indian Penal
Code,1860 apart from sec. 38 r/w sec. 52 of the Kerala
Police Act, 1960.
(3.) The complaint also refers to another incident on the
same day at 3 p.m., when the Sub Inspector of Police
attached to the Museum Police Station,
Thiruvananthapuram, noticed ten young men
constructing an open stage on the road and footpath in a
manner causing obstruction to the right of way of the
public. According to the complainant, despite the police
commanding them to desist from the construction, the
young men proceeded to set up an open platform and
enabled accused 1 to 12 to address the party workers as
part of the human chain. The complaint further alleged
that though Crime No.626 of 2009 was registered
against ten identifiable persons, no steps were initiated
to arrest the accused or to remove the stage constructed
and that the acts of those accused constituted a violation
of the decisions of this Court in Peoples Council for Social
Justice v. State of Kerala (1997 (2) KLT 301) as well as
Kerala Vyapari Vyavasayi Ekopana Samithi v. State of
Kerala (2004 (2) KLT 857). On the above allegations, the
complainant sought to prosecute the accused.
4. The sworn statement of the complainant was taken,
and his witnesses were also examined. Thereafter, the
learned Magistrate took cognizance of the offence as S.T.
No. 4129 of 2012 and issued process Court, to the
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accused. Later, by order dated 14.11.2012, the case was
transferred to the Chief Judicial Magistrate’s
Thiruvananthapuram and renumbered as C.C. No. 1530
of 2012.
5. Petitioners are accused 1 to 12. All of them claim to
be leaders of the Communist Party of India (Marxist).
They have approached this Court under section 482 of
Cr.P.C, alleging that the complaint is filed with malafide
intentions and for oblique motives and that the offences
alleged are not made out.
6. Sri. Gilbert George Correya, the learned counsel for
the petitioners contended that the accused, which
include the present Chief Minister of Kerala, the former
General Secretary of the Communist Party of India
(Marxist), as well as the former Chief Minister of Kerala
and other senior leaders of the Communist Party of
India, have never acted contrary to law. It was
submitted that no one had come forward with any
personal grievance or inconvenience or even prejudice
that was caused on account of the human chain
programme organised by the Communist Party of India
(Marxist). The learned counsel submitted that the human
chain was formed in exercise of their right under Article
19 of the Constitution of India as a measure of showing
their protest against an act that they presumed to be
contrary to their beliefs. According to the learned
counsel, the offences alleged are not made out against
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the petitioners, and hence the private complaint is liable
to be quashed.
7. Sri. T.A. Shaji, the learned Director General of
Prosecution, assisted by Sri. K. A Noushad, the learned
Public Prosecutor submitted that the offences alleged are
not made out and further that the allegations are
politically motivated. It was also submitted that, even if
the entire proceedings are continued, the trial cannot
end in the conviction of the accused for more reasons
than one. The learned Director General of Prosecution
also submitted that this is a fit case where the
jurisdiction of this Court under section 482 ought to be
invoked to quash the proceedings.
8. Though notice to the defacto complainant was served,
it is seen from the records that except for a request to
file an objection to the stay petition on 26.02.2015,
there has not been any representation for the second
respondent thereafter.
9. Political leaders of the Communist Party of India
(Marxist) face indictment under sections 143, 147, 149
and section 283 of the Penal Code, 1860, apart from
sections 38 and 52 of the Kerala Police Act, 1960.
Section 143 of IPC deals with punishment for unlawful
assembly. while section 147 deals with punishment for
rioting. Section 149 makes an act committed by any
member of the unlawful assembly in prosecution of their
common object punishable as if the same was done by
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every member of the assembly. Section 283 makes
danger or obstruction in a pathway punishable. Sections
38 and 52 of the erstwhile Kerala Police Act make the
failure to conform to lawful and reasonable directions of
police officers penal and punishable.
10. True that the accused are the leaders of a political
party. However, the leadership of a political party is not
an immunity against prosecution. Even if the accused are
leaders of the society, if an offence is made out from the
complaint, they are liable to face prosecution. But on the
other hand, if the offences alleged are not made out
from the complaint, the position of the accused shall not
deter the Court from interfering in an unnecessary
prosecution. Thus the question to be considered is
whether, from the allegations in the private complaint,
the offences alleged are made out or not.
11. Of the offences alleged, one of the main allegations
relates to unlawful assembly, which is the basis for the
offences under sections 143, 147 and 149 of the IPC.
The term unlawful assembly comes under chapter VIII,
dealing with public tranquillity. The term is defined in
Section 141 of the IPC and reads as follows:
“141. Unlawful assembly.-An assembly
of five or more persons is designated an
“unlawful assembly”, if the common object of
the persons composing that assembly is
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First To overawe by criminal force, or show of
criminal force, the Central or any State
Government or Parliament or the Legislature
of any State, or any public servant in the
exercise of the lawful power of such public
servant; orSecond To resist the execution of any law, or
of any legal process; orThird To commit any mischief or criminal
trespass, or other offence; orFourth – By means of criminal force, or show
of criminal force, to any person, to take or
obtain possession of any property, or to
deprive any person of the enjoyment of a
right of way, or of the use of water or other
incorporeal right of which he is in possession
or enjoyment, or to enforce any right or
supposed right; orFifth – By means of criminal force, or show of
criminal force, to compel any person to do
what he is not legally bound to do, or to omit
to do what he is legally entitled to do.
Explanation.-An assembly which assembled,
may subsequently become an unlawful
assembly.
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12. A reading of the above provision reveals that the
ingredients of unlawful assembly are:
(i) there must be an assembly of five or more
persons,
(ii) the members of the assembly must have
a common object,
(iii) the common object must be any one of
the following five:
(a) to overawe by criminal force or
show of criminal force, the
Government or any public servant,
(b) to resist the execution of any law
or legal process, or
(c) to commit mischief or criminal
trespass or other offences,
(d) by criminal force or show of
criminal force to take or obtain
possession of any property or deprive
enjoyment of a right of way or use of
water or other incorporeal rights
(e) by criminal force or show of
criminal force to compel any other
person to do what he is legally not
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bound to do or omit to do that which
he is legally bound to do.
13. A reading of the section indicates that every
assembly of five or more persons by itself will not
become an unlawful assembly. An assembly of five or
more persons will become unlawful only when they have
a common object and the said object falls within the
categories mentioned as first to fifth in section 141 IPC.
When the common object of the assembly does not fall
within any of the five categories specified in section 141,
even if the number of the assembly is more than five,
the act alleged will not attract the offence of unlawful
assembly. Thus the essence of the offence of unlawful
assembly lies in the consensus of purpose of more than
five persons to commit an act specified in section 141 of
IPC.
14. It is apposite to notice that of the five categories in
the provision, three of them have criminal force as a
necessary ingredient. Force is defined in section 349 IPC,
while criminal force is defined in section 350 IPC. The
intentional use of force for committing an offence or for
causing injury, fear or annoyance is an essential
requirement of criminal force. The remaining two facets
require resistance to the execution of law or of legal
process or the commission of the offence of mischief or
criminal trespass.
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15. The principles constituting the offence of unlawful
assembly have been succinctly analysed by the Supreme
Court in Masalti v. State of Uttar Pradesh (AIR 1965 SC
202) and also in Akthar Alam alias Aktarul Sheikh v.
State of West Bengal [(2009) 7 SCC 415]. Reference to
the decision in Aravindan v. State of Kerala (1983 KLT
193) is also relevant. In Aravindan‘s case this Court
observed that “the mere fact that an assembly consists
of five or more persons is likely to disturb the public
peace does not prove that the common object of the
assembly is one of those enumerated in the Section. But
there, S. 151 of the Penal Code, 1860 may come in and
it has been held that the common object must be an
immediate one and not to be carried out at some future
time”.
16. On a perusal of the complaint, it is seen that though
the complainant alleges that more than five persons had
assembled together, there is no mention of any of the
ingredients that can attract any one of the five facets
described as ‘first to fifth’ of section 141 IPC. The
complainant has no case that the accused had a common
object to commit any offence or, for that matter, any of
the offences specified in section 141 IPC.
17. The assembly was apparently, as alleged by the
complainant himself, formed only to express their protest
against the Government signing an agreement with the
ASEAN Countries. No criminal force or show of criminal
force is alleged to have been committed by any one of
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the accused or, for that matter, by any of the assembly
of 10,000 and more persons. There is not even a whisper
in the complaint about any resistance to the execution of
any law or legal process. There is also no allegation of
any mischief or criminal trespass committed by any
member of the assembly or even any deprivation of the
right of way by the use of criminal force. There is also no
allegation of compelling any person to do that which he
is not legally bound to do by use of criminal force.
18. As mentioned earlier, section 141 IPC significantly
uses the words ‘criminal force’ in the three facets of the
provision. Thus, a protest or an assembly of persons
without any criminal force or show of criminal force
would not make the assembly unlawful. An assembly of
more than five persons gathered for a peaceful protest
cannot fall within the term unlawful assembly. The right
to protest peaceably is an essential ingredient of the
fundamental right under Article 19(1)(a) and 19(1)(b) of
the Constitution of India. An assembly of persons without
arms or without criminal force or without any intent to
commit an offence can only be a lawful assembly, which
is not prohibited. Such an assembly is a formation in the
exercise of the right to freedom of every citizen
guaranteed under Article 19(1) of the Constitution.
19. In this context, it is appropriate to observe that the
right to freedom of speech and expression and the right
to form an assembly guaranteed under the Constitution
will be a dead letter if every assembly is regarded as
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offensive conduct. The right to dissent and the freedom
to air views contrary to the views of the government is
not an offensive conduct. In fact, the right to dissent is
the core of every democratic establishment. The
constitutional scheme of our Country embodies the
salutary principle of the right to dissent. When the
dissent is expressed without causing any harm or even a
significant inconvenience, it would be too puerile to
proceed criminally against the dissenters. Merely
because the dissent is not acceptable to the majority,
that is not a reason to initiate criminal action unless the
dissent was coupled with violent, disorderly or damaging
conduct by any member of the assembly.
20. In this context, I am mindful of the decision in Amit
Sahni (Shaheen Bagh, In Re) v. Commissioner of Police
[(2020) 10 SCC 439], where the Supreme Court had
while upholding the right to dissent, directed the protests
to be carried out only in designated areas. In the said
decision, the Court was concerned with the indefinite and
long periods of protests being held at Shaheen Bagh,
causing absolute inconvenience to the public. The
situation is different in the present case.
21. In the instant case, there is no allegation of any
criminal force used by any of the accused or any of the
members of the said assembly. There is no allegation of
any common object for committing an offence or that the
human chain lasted indefinitely. There is also no case
that there was any inconvenience or obstruction to the
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public for an extended period of time. The complainant
has not alleged that the normal life of the community
was crippled or paralysed. There is not even an
allegation that the complainant was obstructed. In such
circumstances, I am of the view that the conduct alleged
against the petitioners does not satisfy the ingredients of
section 141, IPC, i.e. unlawful assembly.
22. When the allegations do not satisfy the ingredients of
unlawful
assembly, the offences under sections 143, 147 and 149
IPC cannot be attracted. Therefore, petitioners cannot be
prosecuted for the aforesaid offences.
23. Another allegation in the complaint is that under
section 283 IPC, which reads as follows.
“283. Danger or obstruction in public way or
line of navigation. Whoever, by doing any
act, or by omitting to take order with any
property in his possession or under his
charge, causes danger, obstruction or injury
to any person in any public way or public line
of navigation, shall be punished with fine
which may extend to two hundred rupees.”
24. The complaint alleges that the obstruction in the
form of constructing a stage or a pandal was carried out
by ten other persons and not by the petitioners at all.
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There is no whisper of an allegation that petitioners 1 to
12 were involved in the construction of the stage pandal.
The complainant has not alleged any role for the
petitioners in constructing the open stage/platform. The
allegation is that petitioners had sat and spoken from
inside the pandal. Merely because petitioners sat in the
open stage/platform, they cannot be attributed with any
overt act in the construction of the said stage/platform.
In this context, it is relevant to notice that the
complainant himself alleged that Crime No. 626 of 2009
of the Museum Police Station was registered against the
ten persons found to be constructing and supervising the
construction of the said stage. It was submitted across
the Bar that the said crime was investigated, and a
report was submitted referring the crime as ‘undetected’.
In the absence of any allegation against petitioners 1 to
12, proceeding in a criminal action against them for the
offence under section 283 IPC is an abuse of the process
of law.
25. As far as the offences under sections 38 and 52 of
the Kerala Police Act 1960 are concerned, they relate to
the failure to abide by the lawful directions of the police.
There is no allegation that petitioners had failed to abide
by any lawful directions of the police. On the contrary,
the said allegation is specifically raised against ten other
persons and not the petitioners. The averments in the
complaint, thus, are not sufficient to proceed against the
petitioners for the said offences.
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26. Perceived from the angle of section 95 of IPC also,
this Court is of the view that the proceedings against the
petitioners are liable to be quashed. Section 95 IPC,
states that “Nothing is an offence by reason that it
causes, or that it is intended to cause, or that it is known
to cause, any harm, if that harm is so slight that no
person of ordinary sense and temper would complain of
such harm”. The aforesaid section embodies the principle
of ‘de minimis non curat lex’ meaning that “law does not
take into account trifles”. The intention behind the
aforesaid provision is to avoid penalising negligible
wrongs or trivial offences. There are innumerable acts in
our daily life which may amount to crimes in the strict
sense of the language employed in the statute. However,
if prosecution is initiated for every such triviality, the
system will crumble. Section 95 comes to the aid in such
instances.
27. However, care must be taken before applying the
principle. In Veeda Menezes v. Yusuf Khan Haji Ibrahim
Khan (AIR 1966 SC 1773), the Supreme Court observed
that “whether an act which amounts to an offence is
trivial would undoubtedly depend upon the nature of the
injury, the position of the parties, the knowledge or
intention with which the offending act was done, and
other related circumstances”. The principle of de minimis
non curat lex was applied by this Court in the decision in
Narayanan v. State of Kerala (1986 KLT 1265) where it
was held that, if the harm caused or intended to be
caused is so slight that no person of ordinary sense and
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temper would complain of such harm, the principle can
be applied. Similarly, In Re Attappa (AIR 1951 Mad 759)
the Madras High Court held that even if an obstruction is
caused, if the harm caused is so slight, section 95 of the
IPC will apply.
28. Applying the principle in section 95 IPC, it can
unhesitatingly be held that the allegations can at the
most reveal some obstructions caused on the public way
while the petitioner held their hands for a limited period
of time. Even if it is assumed that any slight obstruction
was caused to the public, the same was only a trifle. This
is evident from the fact that, no one other than the
complainant had any grievance. In this context, the cost
of adjudication, the time required to be spent for
prosecution, the absence of any harm caused to the
complainant or on any other person, absence of any
violence and the intention of engaging in a peaceful
protest are factors that cannot be lost sight of.
29. Having regard to all the above reasons this Court is
of the opinion that continuance of proceedings against
the petitioners as C.C. No. 1530 of 2012 on the files of
the Chief Judicial Magistrate Court, Thiruvananthapuram,
is an abuse of the process of court and is liable to be
interfered with.
30. Hence, I quash Annexure-1, and all further
proceedings in S.T. No. 4129/2012 on the files of the
Judicial First Class Magistrates Court- I,
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Thiruvanathapuram, now renumbered as C.C. No. 1530
of 2012 on the files of the Chief Judicial Magistrate
Court, Thiruvananthapuram and allow this petition.
6. If the impugned complaint is examined keeping in
mind the principles enunciated in the aforesaid judgment, it is
clear that except stating that on 02.12.203 the petitioner along
with others had formed an unlawful assembly, there are
absolutely no other allegation against the petitioner and the
impugned complaint contains vague, bald and omnibus
allegation, which are not sufficient to attract the ingredients
contained in Section 143, 149 or 268 of Indian Penal Code,
1860 and consequently the impugned proceedings qua the
petitioner deserves to be quashed.
7. Insofar as the offences punishable under Section
188 is concerned, it is well settled that the said provision can
be invoked only by the competent officer as contemplated
under Section 195 of the Code of Criminal Procedure, 1973 as
held by this court at page 40 SRI.UMANATH A KOTIAN VS.
STATE OF KARNATAKA AND ANOTHER passed in
Crl.P.No.4745/2024 dated 08.08.2024, which followed
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earlier judgment of the Madras High Court in JEEVANANDHAM
AND OTHERS VS. STATE REP. BY INSPECTOR OF POLICE
AND ANOTHER, 2018 SCC ONLINE MAD 13698.
8. In JEEVANANDHAM supra, the Madras High Court
held as under:
An important issue has arisen for consideration in
these batch of cases. It is seen that a flurry of cases
registered by the Police under Section 188 of Indian
Penal Code [IPC], along with other offences becomes a
subject matter of challenge before this Court on a daily
basis. In spite of certain earlier decisions with regard to
the manner in which an offence under Section 188 of IPC
can be proceeded against certain persons who are
alleged to have committed the said offence, and who has
to file a complaint with regard to such an offence, has
been spelt out in those decisions. Despite the same, the
Police continue to register an FIR under Section 188 of
IPC along with other offences. Therefore, this Court
thought it fit to discuss the law on the point in detail and
give certain guidelines to be followed in future by the
Police while dealing with an offence under Section 188 of
IPC.
2.The provision under Section 188 of IPC is extracted
hereunder:
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188. Disobedience to order duly promulgated by
public servant.? Whoever, knowing that, by an
order promulgated by a public servant lawfully
empowered to promulgate such order, he is
directed to abstain from a certain act, or to take
certain order with certain property in his
possession or under his management, disobeys
such direction, shall, if such disobedience causes
or tends to cause obstruction, annoyance or
injury, or risk of obstruction, annoyance or injury,
to any person lawfully employed, be punished with
simple imprisonment for a term which may extend
to one month or with fine which may extend to
two hundred rupees, or with both; and if such
disobedience causes or trends to cause danger to
human life, health or safety, or causes or tends to
cause a riot or affray, shall be punished with
imprisonment of either description for a term
which may extend to six months, or with fine
which may extend to one thousand rupees, or with
both?.
Explanation: It is not necessary that the offender
should intend to produce harm, or contemplate his
disobedience as likely to produce harm. It is
sufficient that he knows of the order which he
disobeys, and that his disobedience produces, or is
likely to produce, harm.
3. Lord Macaulay’s Report on this provision will be of
some interest before proceeding to deal with the
provision. The same is extracted hereunder.
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Thus it may happen that a religious procession
which is in itself perfectly legal, and which, while it
passes through many quarters of a town is
perfectly harmless, cannot, without great risk of
tumult and outrage, be suffered to turn down a
particular street inhabited by persons, who hold
the ceremony in abhorrence, and whose passions
are excited by being forced to witness it. Again,
there are many Hindu rites which in Hindu temples
and religious assemblies, the law tolerates, but
which could not with propriety be exhibited in a
place which English gentlemen and ladies were in
the habit of frequenting, for purpose of exercise.
Again, at a particular season, hydrophobia may be
common among the dogs at a particular place, and
it may be highly advisable that all the people at
that place should keep their dogs strictly confined.
Again, there may be a particular place in a town in
which the people are in the habit of using as a
receptacle for filth. In general, this practice may
do no harm, but an unhealthy season may arrive
when it may be dangerous to the health of the
population, and under such circumstances it is
evidently desirable that no person should be
allowed to add to the nuisance. It is evident, that
it is utterly impossible for the legislature to mark
out the route of all the religious processions in
India, to specify all the public walks frequented by
English ladies and gentlemen, to foresee in what
months and in what places hydrophobia will be
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common among dogs,, or when a particular
dunghill may become dangerous to the health of a
town. It is equally evident that it would be unjust
to punish a person who cannot be proved to have
acted with bad intentions for doing today what
yesterday was a perfectly innocent act, or for
doing in one street what it would be perfectly
innocent to do in another street, without giving
him some notice.
What we propose, therefore, is to empower
the local authorities to forbid acts which these
authorities consider dangerous to the public
tranquillity, health, safety, or convenience, and to
make it an offence for a person to do anything
which that person knows to be forbidden, and
which may endanger the public tranquillity, health,
safety, or convenience. It will be observed that we
do not given the local authorities, the power of
arbitrarily making any thing an offence. For
unless, the Court before which the person who
disobeys the order is tried shall be of opinion that
he has done something tending to endanger the
public tranquillity, health, safety, or convenience,
he will not be liable to punishment. The effect of
the order of the local authority will be merely to
deprive the person who knowingly disobeys the
order of the plea that he had no bad intentions. He
will not be permitted to allege that if he has
caused harm, or risk of harm, it was without his
knowledge.
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Thus, if in a town where no order for the
chaining up of dogs has been made, A suffers his
dog to run about loose, A will be liable to no
punishment for any mischief which the animal may
do, unless it can be shown that A knew the animal
to be dangerous. But if an order for confining dogs
has been issued, and if A knew of that order, it will
be no defense for him to allege, and even to
prove, that be believed his dog to be perfectly
harmless. If the Court think that A’s disobedience
has caused harm, or risk of harm, A will be liable
to punishment. On the other hand if the Court
think that there was no danger, and that the local
order was a foolish one, A will not be liable to
punishment.?
4.When a public servant who is lawfully empowered,
promulgates by an order to abstain from a certain act, or
to take certain order with certain property in his
possession or under his management, who ever disobeys
such an order, the public servant can enforce his
mandate or he can make over the person who disobeyed
the order, to a Criminal Court to be dealt with under the
Section.
5. To constitute an offence under Section 188 of IPC,
mere disobedience of an order is not sufficient. The
disobedience should also lead to enumerated
consequences, in the second or third limb of the Section
to constitute it as an offence.
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6. The words ?public servant lawfully empowered to
promulgate” in Section 188 IPC are significant. A person
may be legally justified, though not lawfully empowered.
For instance, a Police Inspector may stop the playing of
music or speech made by some one, if he apprehends
breach of peace, but he is not ?lawfully empowered? to
do so within the meaning of the Section, which is limited
to specifically authorised acts. To put it simply the
essential ingredients of this offence are ;
i)Promulgation of a legal order,
ii)its communication to the accused,
iii)its disobedience by him, and
iv)the injurious consequence as described in the section.
7. Promulgation of an order would mean ?to make known
by public declaration, to publish; to disseminate or to
proclaim”. The normal practice that is followed in our
State is, by way of a publication in Gazette and by
announcing the same in newspapers with wide
circulation.
8. The next question that arises for consideration is, the
manner in which the complaint can be registered in a
case involving in Section 188 of IPC and when
cognizance could be taken by a Magistrate for an offence
under Section 188 of IPC. For this purpose, it will be
beneficial to extract Section 195(1)(a)(i) of Criminal
Procedure Code, 1973.
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195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to
documents given in evidence. (1) No Court shall
take cognizance-
(a) (i) of any offence punishable under
sections 172 to 188 (both inclusive) of the
Indian Penal Code (45 of 1860 ), or
(ii) ……..
(iii) of any criminal conspiracy to commit
such offence, except on the complaint in
writing of the public servant concerned or of
some other public servant to whom he is
administratively subordinate;
9. A plain reading of the provision clearly brings out
the procedure. A complaint in writing from the public
servant is essential for a Magistrate to take cognizance
of an offence under Section 188 of IPC.
10. Mr.M.Karunanithi, learned counsel for the petitioners
in some of the petitions, wherein, the Final Report has
been challenged on the ground that the Magistrate
cannot take cognizance, based on an FIR registered by
the Police, and a Final Report filed after investigation
under Section 173(2) of Cr.P.C., made the following
submissions.
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Section 195(1)(a)(i) mandates the filing of a
complaint in writing by a public servant and the
Police cannot register an FIR and investigate the
case and thereafter file a Final Report, in cases
where the alleged offence is under Section of 188
IPC.
Section 2(d) of Cr.P.C defines a complaint
as follows:
(d) Complaint? means any allegation made orally
or in writing to a Magistrate, with a view to his
taking action under this Code, that some person,
whether known or unknown, has committed an
offence, but does not include a police report.
Section 2(r) defines a Police Report as follows:
(r) “police report” means a report forwarded
by a police officer to a Magistrate under
sub-section (2) of section 173;
11. By referring to the above two definitions, the
learned counsel would submit that Cr.P.C has consciously
differentiated between a Complaint and a Police Report
and he also emphasized that a complaint does not
include a Police Report, even under the very definition
itself. Therefore, the learned counsel would submit that
the Final Report submitted by the Police and taken
cognizance by the concerned Magistrate, is illegal and
void ab initio. The learned counsel also brought to the
notice of this Court Section 190 of Cr.P.C which is
extracted here under.
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190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate of
the second class specially empowered in this
behalf under sub- section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been committed.
12. By pointing out to the above provision, the learned
counsel would submit that Section 195 of Cr.P.C is an
exception to Section 190 of Cr.P.C. Section 190 of Cr.P.C
provides for the various modes in which a Magistrate can
take cognizance of an offence. Section 195 of Cr.P.C
carves out an exception and states that no Court shall
take cognizance of certain offences, unless the
stipulation under Section 195 of Cr.P.C is satisfied.
Therefore, the learned counsel would submit that the
present case is governed by Section 195 and not Section
190 of Cr.P.C.
13. .Mr.Rajesh Saravanan, learned counsel, appearing
for some of the petitioners, apart from adopting the
submissions made by Mr.M.Karunanithi, also added one
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more important submission for consideration. In cases in
which he is appearing, the cognizance taken by the
learned Magistrate on a Final Report filed by the Police,
apart from being challenged for violation of Section
195(1)(a), is also challenged on the ground that the
complainant, the Investigating Officer and also the
person who filed the Final Report, were all the same and
therefore, the very Final Report itself, according to the
learned counsel is vitiated and is liable to be set aside.
The learned counsel brought to the notice of this
Court the following judgments, to substantiate his
arguments.
a) Daulat Ram .Vs. State of Punjab reported in AIR
1962 SC 1206.
b) Saloni Arora .Vs. State (NCT of Delhi)
reported in AIR 2017 SCC 391
c) Mohan Lal .Vs. The State of Punjab in
Crl.A.No.1880 of 2011 by the Hon’ble Supreme
Court.
14. Mr.Pandithurai, learned counsel appearing for some
of the petitioners, apart from adopting the arguments
made by the other counsel, also brought to the notice of
this Court the following judgments.
a) C.Muniappan and Others .Vs. State of Tamil
Nadu reported in (2010) 9 SCC 567.
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b) V.Palaniswamy .Vs. The Inspector of Police in
Crl.OP.No.13251 of 2009 dt.4.02.2015 (Madras
High Court).
c) M.Balaji .Vs. The Principal Home Secretary,
Government of Tamil Nadu, Secretariat, Chennai
and Others in W.P.No.17768 of 2017 dt. 9.4.2018
(Madras High Court).
15. Mr.M.Jothi Basu, learned counsel appearing for
some of the petitioners, apart from adopting the
submissions made by other counsel also brought to the
notice of this Court, the scope of Section 30(2) of the
Police Act. The learned counsel would submit that the
promulgation that is referred to under Section 188 IPC,
is normally passed in all these cases, under Section
30(2) of the Police Act. The learned counsel after
referring to the said provision would submit that the said
power is only regulatory in nature and it is not a blanket
power to trifle any democratic dissent of the citizens by
the Police. Therefore, the learned counsel would submit
that the power under Section 30(2) of the Police Act can
be exercised only within the ambit of the provisions of
the Constitution, which gives a citizen, freedom of
speech and expression with reasonable restrictions and
the restrictions imposed under the promulgation must
satisfy the test of reasonableness. The learned counsel
brought to the notice of this Court the judgment in
S.Veerakumar .Vs. Deputy Superintendent of Police, Gobi
Sub Division, Gobichettipalayam, Erode District and
Another reported in (2012) 5 MLJ 1039.
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16. Per contra, the learned Additional Public
Prosecutor Mr.M.Chandrasekaran made the following
submissions.
Section 188 of IPC is a cognizable offence
and therefore the Police is duty bound to register
an FIR under Section 154 of Cr.P.C immediately on
an information and proceed to investigate the case
as provided under Section 156 and 157 of Cr.P.C
and thereafter file a Final Report under Section
173(2) of Cr.P.C.
The learned counsel would submit that such
a Police Officer is also a public servant under
Section 21 of IPC and therefore he is entitled to
register an FIR, investigate the case and file a
Final Report and such Final Report can be taken
cognizance by the Judicial Magistrate under
Section 190 of Cr.P.C.
The learned counsel made further
submission that Section 41 of Cr.P.C gives
sufficient powers to a Police Officer to even arrest
a person who commits, in the presence of a Police
Officer, a congnizable offence. The learned counsel
would further submit that the Police Officer, if he
is satisfied, can cause such arrest if necessary in
order to prevent such a person from committing
any further offence. Therefore, the learned counsel
would submit that the Police Officer cannot remain
a mute spectator, when an offence under Section
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188 IPC is committed, in his presence and he has
to necessarily take action, since Section of 188 of
IPC is a cognizable offence.
The learned counsel would further submit
that only taking cognizance of an offence under
Section 188 of IPC is a bar without a complaint as
contemplated under Section 195(1)(a)(i) and that
does not mean that the Police cannot register an
FIR and investigate the case. The bar imposed
under Section 195(1)(a)(i) cannot be expanded to
such an extent.
The learned Additional Public Prosecutor
further contended that, even assuming Section
195(1)(a)(i) to be a bar for taking cognizance of
an offence under Section 188 of IPC, when the
case involves other offences, the proceedings
cannot be quashed insofar as the other offences
are concerned.
The learned Additional Public Prosecutor
relied upon the following judgments.
a) S.K.Sinha, Chief Enforcement .Vs.
Videocon International Ltd ., & Ors in
Crl.A.No.175 of 2007 dated 25.1.2008,
[Hon’ble Supreme Court of India].
b) Bechar Vala .Vs. State of Gujarat on
27.12.2002,[Gujarat High Court].
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c) G.S.R.Krishnamurthi .Vs.
M.Govindaswamy, Income-Tax , on
13.6.1991 [Madras High Court]
d) K.Muhammed Aslam .Vs. State rep.by
Public on 24.3.2010, [Kerala High Court].
e) V.Gowthaman & Others .Vs. State, rep.by
its Inspector of Police, St.Thomas Mount
Police Station, Chennai reported in 2018 4
CTC 252.
f) Mithun Mohan and Others .Vs. State &
Others in Crl.M.C.No.5291 of 2014 on
6.6.2014, [Kerala High Court].
g) E.K.Palanisamy .Vs. The Deputy
Superintendent of Police, Erode Town Sub-
Division, Erode District in Crl.O.P.No.7699 of
2009 dt.18.08.2009, [Madras High Court].
17. This Court has carefully considered the
submissions made by the learned counsel appearing for
the respective parties.
18. This Court will deal with the various judgments
cited by the Bar with respect to the scope of Section
195(1)(a)(i) of Cr.P.C qua Section 188 of IPC. Some of
the judgments are cited, and the relevant paragraphs
are extracted here under:
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a) In Daulat Ram .Vs. State of Punjab
reported in AIR 1962 SCC 1206, the relevant
paragraphs are extracted hereunder:
3……..The words of the section, namely, that the
complaint has to be in writing by the public
servant concerned and that no court shall take
cognizance except on such a complaint clearly
show that in every instance the court must be
moved by the appropriate public servant. We have
to decide therefore whether the Tehsildar can be
said to be the public servant concerned and if he
had not filed the complaint in writing, whether the
police officers in filing the charge sheet had
satisfied the requirements of s. 195. The words
“no court shall take cognizance” have been
interpreted on more than one occasion and they
show that there is an absolute bar against the
court taking seisin of the case except in the
manner provided by the section.
4.Now the offence under s. 182 of the Penal
Code, if any, was undoubtedly complete when the
appellant had moved the Tehsildar for action.
Section 182 does not require that action
must always be taken if the person who moves the
public servant knows or believes that action would
be taken. In making his report to the Tehsildar
therefore, if the appellant believed that some
action would be taken (and he had no reason to
doubt that it would not) the offence under that
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section was complete. It was therefore incumbent,
if the prosecution was to be launched, that the
complaint in writing should be made by the
Tehsildar as the public servant concerned in this
case. On the other hand what we find is that a
complaint by the Tehsildar was not filed at all, but
a charge sheet was put in by the Station House
Officer. The learned counsel for the State
Government tries to support the action by
submitting that s. 195 had been complied with
inasmuch as when the allegations had been
disproved, the letter of the Superintendent of
Police was forwarded to the Tehsildar and he
asked for “a calendar”. This paper was flied along
with the charge sheet and it is stated that this
satisfies the requirements of s. 195. In our
opinion, this is not a due compliance with the
provisions of that section. What the section
comtemplates is that the complaint must be in
writing by the public servant concerned and there
is no such compliance in the present case. The
cognizance of the case was therefore wrongly
assumed by the court without the complaint in
writing of the public servant namely the Tehsildar
in this case. The trial was thus without jurisdiction
ab inito and the conviction cannot be maintained?.
b) C.Muniappan and Others .Vs. State of
Tamil Nadu reported in (2010) 9 SCC 567.
Charges under Section 188 IPC:
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27. Section 195 Cr.PC reads as under :
“195. Prosecution for contempt of lawful
authority of public servants, for offences against
public justice and for offences relating to
documents given in evidence – (1) No Court shall
take cognizance –
(a)(i) of any offence punishable under Sections
172 to 188 (both inclusive) of the Indian Penal
Code (45 of 1860), or ……..
except on the complaint in writing of the public
servant concerned or of some other public servant
to whom he is administratively subordinate;”
28. 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
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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).
29. The test of whether there is evasion or non-
compliance of Section 195 Cr.PC or not, is whether the
facts disclose primarily and essentially an offence for
which a complaint of the court or of a public servant is
required. In Basir-ul-Haq & Ors. v. The State of West
Bengal, AIR 1953 SC 293; andDurgacharan Naik & Ors v.
State of Orissa, AIR 1966 SC 1775, this Court held that
the provisions of this Section cannot be evaded by
describing the offence as one being punishable under
some other sections of IPC, though in truth and
substance, the offence falls in a category mentioned in
Section 195Cr.PC. Thus, cognizance of such an offence
cannot be taken by mis- describing it or by putting a
wrong label on it.
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30. In M.S. Ahlawat v. State of Haryana & Anr., AIR
2000 SC 168, this Court considered the matter at length
and held as under :
“….Provisions of Section 195 CrPC are mandatory and no
court has jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a complaint in
writing as required under that section.”
(Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar &
Anr., (1998) 2 SCC 493, this Court while dealing with
this issue observed as under :
“7. ..Section 190 of the Code empowers
“any magistrate of the first class” to take
cognizance of “any offence” upon receiving a
complaint, or police report or information or upon
his own knowledge. Section 195 restricts such
general powers of the magistrate, and the general
right of a person to move the court with a
complaint to that extent curtailed. It is a well-
recognised canon of interpretation that provision
curbing the general jurisdiction of the court must
normally receive strict interpretation unless the
statute or the context requires otherwise.”
(Emphasis supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962 SC
1206, this Court considered the nature of the provisions
of Section 195 Cr.PC. In the said case, cognizance had
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been taken on the police report by the Magistrate and
the appellant therein had been tried and convicted,
though the concerned public servant, the Tahsildar had
not filed any complaint. This Court held as under
:
“4…The cognizance of the case was
therefore wrongly assumed by the court without
the complaint in writing of the public servant,
namely, the Tahsildar in this case. The trial was
thus without jurisdiction ab initio and the
conviction cannot be maintained. 5.The appeal is,
therefore, allowed and the conviction of the
appellant and the sentence passed on him are set
aside.”
(Emphasis added)
33. Thus, in view of the above, the law can be
summarized to the effect that there must be a complaint
by the pubic servant whose lawful order has not been
complied with. The complaint must be in writing. The
provisions of Section 195Cr.PC are mandatory. Non-
compliance of it would vitiate the prosecution and all
other consequential orders. The Court cannot assume the
cognizance of the case without such complaint. In the
absence of such a complaint, the trial and conviction will
be void ab initio being without jurisdiction?.
c)Saloni Arora .Vs. State of NCT of Delhi
reported in AIR 2017 SCC 391.
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6) In the aforementioned proceedings, the
State Prosecuting Agency sought to prosecute the
appellant for commission of an offence punishable
under Section 182 IPC. The appellant, felt
aggrieved of this action of the prosecuting agency,
filed an application for her discharge on the
ground that since no procedure as contemplated
under Section 195 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ?the
Code?) was followed by the prosecution, the
appellant cannot be prosecuted for such offence.
10) As rightly pointed out by the learned
counsel for the parties on the strength of law laid
down by this Court in the case of Daulat Ram vs.
State of Punjab, (AIR 1962 SC 1206) that in order
to prosecute an accused for an offence punishable
under Section 182 IPC, it is mandatory to follow
the procedure prescribed under Section 195 of the
Code else such action is rendered void ab initio.
11) It is apposite to reproduce the law laid
down by this Court in the case of Daulat Ram
(supra) which reads as under:
There is an absolute bar against the Court
taking seisin of the case under S.182 I.P.C. except
in the manner provided by S.195 Crl.P.C. Section
182 does not require that action must always be
taken if the person who moves the public servant
knows or believes that action would be taken. The
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offence under S.182 is complete when a person
moves the public servant for action. Where a
person reports to a Tehsildar to take action on
averment of certain facts, believing that the
Tehsildar would take some action upon it, and the
facts alleged in the report are found to be false, it
is incumbent, if the prosecution is to be launched,
that the complaint in writing should be made by
the Tehsildar, as the public servant concerned
under S.182, and not leave it to the police to put a
charge-sheet. The complaint must be in writing by
the public servant concerned. The trial under
S.182 without the Tehsildar?s complaint in writing
is, therefore, without jurisdiction ab initio.?
(Emphasis supplied)
12) It is not in dispute that in this case, the
prosecution while initiating the action against the
appellant did not take recourse to the procedure
prescribed under Section 195 of the Code. It is for
this reason, in our considered opinion, the action
taken by the prosecution against the appellant
insofar as it relates to the offence under Section
182 IPC is concerned, is rendered void ab initio
being against the law laid down in the case of
Daulat Ram (supra) quoted above?.
d. Palaniswamy and Others .Vs. The Inspector of Police
in Crl.O.P.No.13251 of 2009 dt.04.02.2015.
4.Heard the learned Additional Public
Prosecutor appearing for the respondent and he
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also submitted that as per Section 195 of Cr.P.C.,
a complaint can be filed only by a public servant
and police cannot file a charge sheet for the
offence punishable under Section 188 of I.P.C. and
read with Section 195 of Cr.P.C. He further
submitted that no Court shall take cognizance as
stated therein except on a complaint given by a
public servant concerned.
5.Admittedly, in this case, on the basis of
the complaint given police enquired, investigated
and filed charge sheet and therefore, the Court
should not have taken cognizance of the charge
sheet filed by the respondent police. In the
decision reported in (2004) M.L.J. (Crl) 633
(K.C.Palanisamy and others Vs. State represented
by Inspector of Police, City Crime Branch,
(Coimbatore), the said law has been discussed and
held that the final report filed by the police in
respect of Section 188 of I.P.C. Is not
maintainable. Hence, the lower court ought not to
have taken cognizance of the charge sheet filed by
the respondent police.?
e. M.Balaji .Vs. The Pricnipal Home Secretary,
Government of Tamil Nadu, Secretariat, Chennai &
Others in W.P.No.17768 of 2017, dated 09.04.2018
[Madras High Court] ?This writ petition, by way of public
interest litigation, has been filed by a practising advocate
of this Court seeking a writ of mandamus or an
analogous order directing the respondents to ensure that
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no first information report or charge sheet or final report
is registered under Sections 172 to 188 of the Indian
Penal Code.
3. Under Section 195 of the Criminal
Procedure Code, no Court is to take cognizance of
an offence punishable under Section 172 to 188 of
the Indian Penal Code or of any abetment of, or
attempt to commit such offences punishable under
those sections, or of any criminal conspiracy to
commit such offence, except on the complaint in
writing of the public servant concerned or of some
other public servant to whom he is
administratively subordinate.
4. If any Court takes cognizance of an
offence in breach of Section 195 of the Criminal
Procedure Code, the accused has an efficacious
alternative remedy of filing a criminal revisional
application for quashing of proceedings.
12. We would request the Tamil Nadu State
Judicial Academy to initiate appropriate training
programmes for the Magistrates in relation to
offences under Sections 172 to 188 of the Indian
Penal Code.
f) V.Gowthaman & Others .Vs. State, rep.by its Inspector
of Police, St.Thomas Mount Police Station Chennai
reported in [2018 (4) CTC 252].
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14. Though the learned counsel for the
accused had failed to argue a particular legal
aspect which is favourable to him, this Court does
not want to take advantage of his ignorance. A
Court cannot take cognizance of an offence under
Section 188 IPC on a police report filed under
Section 173(2) Cr.P.C., but only on the complaint
by a concerned public servant in the light of
Section 195 Cr.P.C. (See: C.Muniappan and others
vs. State of Tamil Nadu [(2010) 9 SCC 567]. Thus,
the prosecution of the accused under Section 188
IPC stands quashed?.
19. From the above judgments, it is clear that in order
to prosecute an accused for an offence punishable under
Section 188 of IPC, it is mandatory to follow the
procedure prescribed under Section 195 of the Code,
else, such action is rendered void ab initio. The object of
the provision is to provide for a particular procedure,
which gives authority only to the public servant. The
legislative intent is to prevent an individual or a group of
persons from facing criminal prosecution instituted upon
insufficient grounds by persons actuated by malice, ill
will, or frivolity of disposition and to save the time of
Criminal Courts from being vexed by endless
prosecution. Section 195 of Cr.P.C is an expansion to the
general rule contained under Section 190 of Cr.P.C,
wherein, any person can set the law in motion by making
a complaint.
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20. Therefore, it is very clear from the above
judgments that there must be a complaint by a public
servant, who is lawfully empowered, whose lawful order
has not been complied with. The provisions of Section
195 of Cr.P.C are mandatory and non-compliance, with
it, will make the entire process void ab initio, being
without jurisdiction.
21.The submission of the learned Additional Public
Prosecutor to the effect that Section 188 of IPC is a
cognizable offence, and therefore, the Police Officer is
entitled to proceed under Section 154, 156 and 157 of
Cr.P.C, is not sustainable. The offence being cognizable
by itself, does not enable the Police Officer to register an
FIR for an offence under Section 188 of IPC. The reason
being, such registration of an FIR has to necessarily end
with a Police Report under Section 173(2) of Cr.P.C,
which is specifically barred under Section 195 of Cr.P.C.
The definition of a complaint under Section 2(d) of Cr.P.C
itself makes it clear that a complaint does not include a
Police Report. The Hon’ble Supreme Court has gone to
the extent of saying that such a Final Report, which is
taken cognizance will make the entire proceedings void
ab initio which would necessarily mean that the
registration of the FIR for an offence under Section 188
of IPC will also become void.
22.There is one more analogy, which can be used here.
Section 195(1)(b) of Cr.P.C prohibits any complaint for
an offence that is committed during Court proceedings.
Such offence committed during Court proceedings like
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forgery, impersonation, perjury etc., by itself may be
cognizable in nature, but that does not empower the
Police Officer to register an FIR and complaint in such
cases can be given only by the Court concerned.
Therefore, the nature of the offence does not give a right
to the Police Officer to register an FIR and investigate
and file a Final Report, when those offences fall within
the category enumerated under Section 195 of Cr.P.C.
Therefore, the arguments of the learned Additional Public
Prosecutor in this regard is not sustainable.
23.The next argument of the learned Additional Public
Prosecutor to the effect that since a Police Officer is also
a public servant under Section 21 of IPC, his Final Report
filed before the Court under Section 173(2) of Cr.P.C
must be construed as a complaint under Section
195(1)(a)(i), is also not sustainable. The word used
under Section 188 of IPC is “public servant lawfully
empowered” and the word used in Section 195(1)(a)(i) is
“public servant concerned”. The very terminology that
has been used in the provision makes it clear that not all
public servants falling under Section 21 of IPC can give a
complaint in writing, it is only the public servant who has
been specifically authorised, by a specific order in this
regard, who can file a written complaint before the
concerned Judicial Magistrate Court.
24.It is true that a Police Officer by virtue of the power
given under Section 41 of Cr.P.C., will have the authority
to arrest a person, without any warrant or order from a
Magistrate, when a cognizable offence is committed in
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his presence or in order to prevent the committing of a
cognizable offence. This power by itself will not vest the
Police Officer to register an FIR for an offence under
Section 188 of IPC. After the arrest, the concerned Police
Officer is duty bound to inform the public servant
authorised about the offence committed under Section
188 of IPC and the public servant thereafter, has to
proceed in accordance with the procedure under Section
195(1)(a)(i) of Cr.P.C. In other words, the power of the
Police Officer to arrest a person committing a cognizable
offence, is only a preventive action and thereafter the
procedure to be followed is guided by Section
195(1)(a)(i) of Cr.P.C.
25.The last submission made by the learned Additional
Public Prosecutor to the effect that, where other offences
are also committed along with the offence under Section
188 of IPC, the authority of the Police Officer to register
an FIR and to investigate and file a Final Report for the
other offences, is in no way affected, is perfectly correct.
The judgments cited by the learned Additional Public
Prosecutor in this regard, supports the submission made
by the learned Additional Public Prosecutor and this
Court is in agreement with the said submission.
26.In some of the cases, it is also seen that the same
Officer has registered the FIR, conducted the
investigation and also filed the Final Report. Such a
procedure goes against the very fundamental principle of
fair investigation, wherein, the informant and the
investigator must not be the same person. Such a
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procedure, in fact is violative of Article 21 of the
Constitution.
27.It will be useful to refer to the latest judgment of
Hon’ble Supreme Court in this regard in Mohan Lal .Vs.
The State of Punjab, in Crl.A.No.1880 of 2011
dt.16.08.2018, Hon’ble Supreme Court of India.
5. We have considered the submissions on
behalf of the parties. The primary question for our
consideration in the present appeal is, whether in
a criminal prosecution, it will be in consonance
with the principles of justice, fair play and a fair
investigation, if the informant and the
investigating officer were to be the same person.
In such a case, is it necessary for the accused to
demonstrate prejudice, especially under laws such
as NDPS Act, carrying a reverse burden of proof.
11. A fair trial to an accused, a
constitutional guarantee under Article 21 of the
Constitution, would be a hollow promise if the
investigation in a NDPS case were not to be fair or
raises serious questions about its fairness
apparent on the face of the investigation. In the
nature of the reverse burden of proof, the onus
will lie on the prosecution to demonstrate on the
face of it that the investigation was fair, judicious
with no circumstances that may raise doubts about
its veracity. The obligation of proof beyond
reasonable doubt will take within its ambit a fair
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investigation, in absence of which there can be no
fair trial. If the investigation itself is unfair, to
require the accused to demonstrate prejudice will
be fraught with danger vesting arbitrary powers in
the police which may well lead to false implication
also. Investigation in such a case would then
become an empty formality and a farce. Such an
interpretation therefore naturally has to be
avoided.
12. That investigation in a criminal offence
must be free from objectionable features or
infirmities which may legitimately lead to a
grievance on part of the accused was noticed in
Babubhai vs. State of Gujarat, (2010) 12 SCC 254
as follows:
32. The investigation into a criminal offence
must be free from objectionable features or
infirmities which may legitimately lead to a
grievance on the part of the accused that
investigation was unfair and carried out with an
ulterior motive. It is also the duty of the
investigating officer to conduct the investigation
avoiding any kind of mischief and harassment to
any of the accused. The investigating officer
should be fair and conscious so as to rule out any
possibility of fabrication of evidence and his
impartial conduct must dispel any suspicion as to
its genuineness. The investigating officer ?is not
merely to bolster up a prosecution case with such
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evidence as may enable the court to record a
conviction but to bring out the real unvarnished
truth?.
33. In State of Bihar v. P.P. Sharma this Court has held
as under:
57. Investigation is a delicate painstaking
and dextrous process. Ethical conduct is absolutely
essential for investigative professionalism. ?
Therefore, before countenancing such allegations
of mala fides or bias it is salutary and an onerous
duty and responsibility of the court, not only to
insist upon making specific and definite allegations
of personal animosity against the investigating
officer at the start of the investigation but also
must insist to establish and prove them from the
facts and circumstances to the satisfaction of the
court.
59. Malice in law could be inferred from
doing of wrongful act intentionally without any
just cause or excuse or without there being
reasonable relation to the purpose of the exercise
of statutory power. ?
61. An investigating officer who is not
sensitive to the constitutional mandates, may be
prone to trample upon the personal liberty of a
person when he is actuated by mala fides.?
14. In a criminal prosecution, there is an
obligation cast on the investigator not only to be
fair, judicious and just during investigation, but
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also that the investigation on the very face of it
must appear to be so, eschewing any conduct or
impression which may give rise to a real and
genuine apprehension in the mind of an accused
and not mere fanciful, that the investigation was
not fair. In the circumstances, if an informant
police official in a criminal prosecution, especially
when carrying a reverse burden of proof, makes
the allegations, is himself asked to investigate,
serious doubts will naturally arise with regard to
his fairness and impartiality. It is not necessary
that bias must actually be proved. It would be
illogical to presume and contrary to normal
human conduct, that he would himself at the end
of the investigation submit a closure report to
conclude false implication with all its attendant
consequences for the complainant himself. The
result of the investigation would therefore be a
foregone conclusion.
25. In view of the conflicting opinions
expressed by different two Judge Benches of this
Court, the importance of a fair investigation from
the point of view of an accused as a guaranteed
constitutional right under Article 21 of the
Constitution of India, it is considered necessary
that the law in this regard be laid down with
certainty. To leave the matter for being
determined on the individual facts of a case, may
not only lead to a possible abuse of powers, but
more importantly will leave the police, the
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accused, the lawyer and the courts in a state of
uncertainty and confusion which has to be
avoided. It is therefore held that a fair
investigation, which is but the very foundation of
fair trial, necessarily postulates that the informant
and the investigator must not be the same
person.
Justice must not only be done, but must
appear to be done also. Any possibility of bias or
a predetermined conclusion has to be excluded.
This requirement is all the more imperative in
laws carrying a reverse burden of proof.
26.Resultantly, the appeal succeeds and is
allowed. The prosecution is held to be vitiated
because of the infraction of the constitutional
guarantee of a fair investigation. The appellant is
directed to be set at liberty forthwith unless
wanted in any other case?.
28.There are certain cases covered in this batch, which
apart from the infraction of the procedural mandate
under Section 195(1)(a)(i) of Cr.P.C is also vitiated by
the fact that the informant and the investigator are the
same persons and hence, hit by the latest judgment of
the Hon’ble Supreme Court referred supra.
29.In view of the discussions, the following guidelines
are issued insofar as an offence under Section 188 of
IPC, is concerned:
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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;
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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
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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.
30. This Court will now proceed to deal with the
independent cases
Crl.O.P.(MD).Nos. 11834, 15529, 15644, 15621,
16244, 16208, 16075 of 2018
31. In all these cases, it is seen that a Final Report has
been filed for an Offence under Section 188 and 143 of
IPC and cognizance has also been taken by the
concerned Judicial Magistrates. In view of the above
discussion, the cognizance of the Final Report under
Section 188 of IPC is liable to be quashed. Insofar as
the offence under Section 143 of IPC is concerned, in all
the cases, the concerned Police Officer has quoted
Section 30(2) of the Police Act, and therefore, has
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straight away proceeded to register an FIR under
Section 143 of IPC. As stated above, a mere violation of
the so-called promulgation under Section 30(2) of the
Police Act will not make out an offence under Section
143 of IPC by straight away declaring an assembly of
persons to be an unlawful assembly. The power under
Section 30(2) of the Police Act is merely regulatory in
nature. In fact, Section 32 of the Police Act itself
provides for a penalty for disobeying an order issued
under Section 30(2) of the Police Act with a punishment
of a fine not exceeding 200 rupees. Where as an offence
under Section 143 of IPC is punishable with
imprisonment for a term which may extend to 6
months. Therefore, a violation of the so-called
promulgation under Section 30(2) of the Police Act will
not by itself constitute an offence under Section 143 of
IPC. In all the cases, the assembly of persons were
made to express dissatisfaction of the governance and
claiming for minimum rights that are guaranteed to a
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.
32.Therefore, the Final Report for an offence under
Section 143 of IPC is hereby quashed. Accordingly, all
the Criminal Original petitions are allowed, and the Final
Report filed in each of the case is hereby quashed.
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Crl.O.P.(MD)Nos.1356,14873,14785 and 15866 of
2018
33. In all these cases, it is seen that a Final Report
has been filed for an Offence under Section 188 and 143
of IPC and cognizance has also been taken by the
concerned Judicial Magistrates. In view of the above
discussion, the cognizance of the Final Report under
Section 188 of IPC is liable to be quashed. Insofar as
the offence under Section 143 of IPC is concerned, in all
the cases, the concerned Police Officer has quoted
Section 30(2) of the Police Act, and therefore, has
straight away proceeded to register an FIR under
Section 143 of IPC. As stated above, a mere violation of
the so called promulgation under Section 30(2) of the
Police Act will not make out an offence under Section
143 of IPC by straight away declaring an assembly of
persons to be an unlawful assembly. The power under
Section 30(2) of the Police Act is merely regulatory in
nature. In fact, Section 32 of the Police Act itself
provides for a penalty for disobeying an order issued
under Section 30(2) of the Police Act with a punishment
of a fine not exceeding 200 rupees. Where as an offence
under Section 143 of IPC is punishable with
imprisonment for a term which may extend to 6
months. Therefore, a violation of the so called
promulgation under Section 30(2) of the Police Act will
not by itself constitute an offence under Section 143 of
IPC. In all the cases, the assembly of persons were
made to express dissatisfaction of the governance and
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claiming for minimum rights that are guaranteed to a
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.
34.In these cases, the informant and the investigator
are one and the same person. Therefore, there was no
fair investigation in these cases. This issue is covered by
the judgment of the Hon’ble Supreme Court in Mohanlal
.Vs. The State of Punjab in Crl.A.No.1880 of 2011
referred supra. Therefore, the Final Report for an
offence under Section 143 of IPC is hereby quashed.
Accordingly, the Criminal Original petitions are allowed,
and the Final Report filed in each of the case is hereby
quashed.
Crl.O.P.(MD)No.11836 of 2018:-
35.In this case, the Final Report has been filed only for
an offence under Section 143 of Cr.P.C and the Court
below has taken cognizance of the Final Report. A
reading of the allegations made in the Final Report
would show that a group of persons were agitating for
non supply of the essential commodities in a ration
shop. In this case, the FIR was registered under Section
143 and 188 of IPC. The Final Report was filed for an
offence under Section 143 of IPC. Insofar as the offence
under Section 143 of IPC is concerned, the concerned
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Police Officer has quoted Section 30(2) of the Police Act,
and therefore, has straight away proceeded to register
an FIR under Section 143 of IPC. As stated above, a
mere violation of the so-called promulgation under
Section 30(2) of the Police Act will not make out an
offence under Section 143 of IPC by straight away
declaring an assembly of persons to be an unlawful
assembly. The power under Section 30(2) of the Police
Act is merely regulatory in nature. In fact, Section 32 of
the Police Act itself provides for a penalty for disobeying
an order issued under Section 30(2) of the Police Act
with a punishment of a fine not exceeding 200 rupees,
where as an offence under Section 143 of IPC is
punishable with imprisonment for a term which may
extend to 6 months. Therefore, a violation of the so-
called promulgation under Section 30(2) of the Police
Act will not by itself constitute an offence under Section
143 of IPC. In this case, the assembly of persons were
made to express dissatisfaction of 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.
36.In this case, the informant and the investigator are
one and the same person. Therefore, there was no fair
investigation in this case. This is covered by the
judgment of the Hon’ble Supreme Court in Mohanlal .Vs.
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The State of Punjab in Crl.A.No.1880 of 2011 referred
supra. Therefore, the Final Report for an offence under
Section 143 of IPC is hereby quashed. Accordingly, the
Criminal Original petition is allowed, and the Final
Report filed is hereby quashed.
Crl.O.P.(MD)No.14846 of 2018
37.In this case, an FIR has been registered by the
respondent Police for an offence under Section 188 of
IPC and Section 4(1) of the Tamil Nadu Open Places
[Prevention of Disfigurement] Act, 1959. The
respondent Police do not have the authority to register
an FIR for an offence under Section 188 of IPC.
Therefore, the FIR has to be necessarily quashed insofar
as offence under Section 188 of IPC is concerned.
Insofar as 4(1) of the Tamil Nadu Open Places
[Prevention of Disfigurement] Act, 1959 is concerned,
the FIR is registered on the ground that the portrait of
Swami Vivekananda was placed without permission.
This offence is punishable with 3 months imprisonment
and therefore, is a non cognizable offence. The
respondent Police cannot register an FIR, without
getting a specific order from the Magistrate under
Section 155 of Cr.P.C. Therefore, the FIR is not
sustainable. Accordingly, the FIR in Cr.No.4 of 2018 is
hereby quashed and Crl.O.P.No.14846 of 2018 is
allowed.
Crl.OP(MD)No.15645 of 2018
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38.In this case, the FIR has been registered for an
offence under Section 143, 188 and Section 336 of IPC.
An FIR cannot be registered for an offence under
Section 188 of IPC. The complaint does not even state
as to how the assembly formed by the persons is a
unlawful assembly and does not satisfy the
requirements of Section 143 of IPC. There is also no
mention about any promulgation order passed under
Section 30(2) of the Police Act, 1861. There are
absolutely no averments in order to attract the offence
under Section 336 of IPC.
39. There is no allegation that the accused persons
engaged in an act so as to endanger human life or the
personal safety of others. The complaint only says that
the accused persons endangered their own lives by
trying to get into the sea. Therefore, the FIR insofar as
the offence under Section 336 is concerned is also
hereby quashed. Accordingly, the FIR in Crime
No.112/18 is hereby quashed and Criminal Original
Petition is allowed.
Crl.O.P.(MD)No.15655 of 2018
40.In this case, an FIR has been registered as against
102 persons for an offence under Section 341,143 and
188 of IPC. A reading of the FIR does not make out an
offence under Section 341 and 143 of IPC. No FIR can
be registered by the respondent Police for an offence
under Section 188 of IPC. Accordingly, the FIR in Crime
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No.99 of 2018 is hereby quashed and
Crl.O.P.No.15655/2018 stands allowed.
Crl.O.P.(MD)Nos. 12684, 15710 and 15709 of
2018
41.In all these cases, a Final Report has been filed for
an offence under Section 143, 341 and 188 of IPC. A
Final Report cannot be filed for an offence under Section
188 of IPC, and the Court below ought not to have been
taken cognizance. In view of the above discussion, the
Final Report insofar as an offence under Section 188 IPC
is concerned is hereby quashed. Insofar as the offence
under Section 143 IPC is concerned, the allegation is
that the assembly had raised slogans demanding for the
rights of the farmers, and expressed opposition not to
establish a godown and this according to the Police was
done, when there was a prohibitory order under Section
30(2) of the Police Act, 1861. In the considered view of
this Court, this will not constitute an offence under
Section 143 of IPC.
42.In 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.
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A reading of the Final Report also does not make out an
offence under Section 341 of Cr.P.C since any form of
an agitation, will necessarily cause some hindrance to
the movement of the general public for sometime. That
by itself, does not constitute an offence of a wrongful
restraint.
43.In the considered view of this Court, the Final Report
does not make out an offence of unlawful assembly or
wrongful restraint. Accordingly, all the Criminal Original
petitions are allowed, and the Final Report filed in each
of the case is hereby quashed.
44.Consequently, connected Miscellaneous Petitions are
closed.
45. This Court records its appreciation for the effective
assistance given by the learned counsel appearing on
behalf of the petitioners and also the learned Additional
Public Prosecutor appearing for the State, to enable this
Court to deal with an offence under Section 188 of IPC
and give necessary guidelines with regard to the
procedure to be followed.
9. In SRI.UMANATH A KOTIAN supra, this court
held as under:
Heard Sri.M.R. Balakrishna, learned counsel
appearing for the petitioner, Sri. Jagadeesha B.N., the
learned Additional State Public Prosecutor, appearing for
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respondent No.1 and Sri.Shreeraj S., appearing for
respondent No.2.
2. The petitioner is before this Court calling in
question the proceedings in C.C.No.528/2023,
registered for offence punishable under Section 188 of
the IPC.
3. The learned counsel for the petitioner
would submit that the issue in the case at hand stands
covered by the judgment rendered by this Court in
Crl.P.No.10044/2022, disposed of on 11.08.2023,
wherein this Court has held as follows:
” 3. The facts, in brief, are as follows:-
The petitioners 1 to 7 are accused Nos.3 to 9
respectively. A complaint comes to be registered on
05-12-2019, alleging that at about 11.30 a.m., when
the complainant was on election duty, accused No.2 and
his associates formed an unlawful assembly and when
he tried to disperse them, altercations broke out
between accused No.2 and the Police. At that point in
time, accused No.1 is alleged to have raised his voice
and questioned the complainant as to how he can arrest
him, thereby, obstructing the complainant in the
discharge of his duties. This is the crux of the complaint
that is made against all the accused. Based upon the
said complaint, a crime comes to be registered in Crime
No.271 of 2019 before Bilikere Police Station against
accused Nos.1 and 2 primarily and 15 to 20 others
named as accused for the offences punishable under
Sections 143, 147, 353 and 149 of the IPC. The police
conduct investigation and lay a charge sheet against 9
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persons on 05-10-2021 for the offences under Sections
143, 147, 188, 353 and 149 of the IPC. The petitioners
are accused Nos.3 to 9. The learned Magistrate takes
cognizance of the offences on 16.06.2022. It is taking
of cognizance that has driven the petitioners to this
Court in the subject petition.
4. The learned counsel appearing for the
petitioners Ms. Keerthana Nagaraj would
vehemently contend that the very registration of the
crime or taking of cognizance by the learned Magistrate
for offence under Section 188 of the IPC is contrary to
law. It is her submission that in order to prosecute an
accused for an offence under Section 188 of the IPC,
the procedure prescribed under Section 195 of the
Cr.P.C. is to be followed mandatorily. That having not
been done, the very act of taking cognizance would get
vitiated. She would further contend that Section 188 of
the IPC mandates that the complaint should be
registered by the public servant lawfully empowered. It
is an admitted fact that the complainant is not the
authorized officer to register the complaint. She would
contend that there is no specific overt act against the
petitioners, in particular, to drive them into the web of
crime.
5. Per contra, the learned Additional State Public
Prosecutor would refute the submissions to contend that
the Police have filed the charge sheet and the matter is
set for further proceedings. The petitioners can as well
seek discharge before the concerned Court and
therefore, interference under Section 482 of the Cr.P.C.
is unwarranted. He would seek dismissal of the
petition.
6. I have given my anxious consideration to the
submissions made by the respective learned counsel
and have perused the material on record.
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7. The afore-narrated facts are not in dispute.
The Police Officer i.e., the 2nd respondent is the
complainant. The allegation against the petitioners on
the incident, is as narrated hereinabove, which does not
require reiteration. The crime is registered in Crime
No.271 of 2019 for offences punishable under Sections
143, 147, 353 and 149 of the IPC. There was no
offence registered under Section 188 of the IPC laid at
the time of registration of crime. The Police file a
charge sheet after investigation, after 22 months i.e.,
on 05.10.2021. Here the offence under Section 188 of
the IPC is added. Whether Section 188 of the IPC can
become an offence without it being registered by an
authorized officer as that creates a bar under Section
195 of the Cr.P.C. is what is required to be considered.
The consideration of which, need not detain this Court
for long or delve deep into the matter. This Court in
SHASHIKALA K.S. V. STATE OF KARNATAKA in
Criminal Petition No.6812 of 2023 decided on
08.09.2023, has held as follows:
“…. …. ….
2. The petitioner is before this Court calling in
question the proceedings in C.C. No.7453/2013
registered by Subramanyanagar Police Station,
Bengaluru City in Crime No.100/2013, dated
22.04.2013 for the offences punishable under Sections
171B, 171E & 188 read with Section 34 of the IPC.
3. Learned counsel appearing for the petitioner
would submit that qua the other accused, this Court
has already quashed the proceedings arising out of the
very same crime. This Court in the case of Dr. C.N.
Ashwathnarayan S/o. T.K. Narayanappa Vs. the State
of Karnataka and another in Crl.P. No.9407/2017,
disposed off on 24th April 2018, wherein it is held as
under:
“Petitioner is seeking for quashing of the
proceedings in C.C.No.7453/2013 pending on
the file of VII Addl. Chief Metropolitan
Magistrate, Bangalore, registered for the
offence punishable under Sections 171(B),
171(E) and 188 r/w Section 34 of IPC on the
basis of complaint lodged by second respondent
herein. 2. The gist of prosecution case is;
second respondent was on election duty in
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Malleshwaram Constituency No.157 as MCC
Flying Squad-Executive Magistrate and while
discharging his duties on 21.04.2014, he
received information that accused No.1, who is
a yoga guru, had arranged a meeting at
Kranthiveera Sangollirayann Park falling within
the jurisdiction of Subramanya Nagar Police
Station and a meeting was being held under the
leadership of said yoga guru and in that
meeting, petitioner, who was a candidate at
Malleshwaram Vidhana Sabha Constituency
along with local CorporatorSmt.Shashikala
Krishnegowda was participating in the said
meeting held by yoga guru Sri.Subhash and
after the meeting, breakfast had been arranged
without obtaining permission from the Election
Officer and on reaching the venue, he found
such meeting being held. Hence, alleging that
accused had violated election rules, a complaint
came to be lodged, which was registered in
Cr.No.100/2013 and after completion of
investigation, charge sheet came to be filed
against petitioner for the offences punishable
under Sections 171(B), 171(E) and 188 r/w
Section 34 of IPC. Hence, petitioner is before
this Court calling in question the registration of
same and praying for quashing of said
proceedings. 3. Heard Sri.Shanthi Bhushan.H,
learned counsel appearing for petitioner and
Sri.Rachaiah, learned HCGP appearing for first
respondent – State. Perused the records. 4. As
could be seen from the case records, offences
alleged against petitioner are punishable under
Sections 171(B) and 171(E), which are
cognizable offences and as such, prior to
registration of FIR, jurisdictional police ought to
have obtained permission from the jurisdictional
magistrate, which is conspicuously absent in the
instant case. Insofar as, offences punishable
under Section 188 of IPC, the bar contained in
Section 195 of Cr.P.C. would come into play
namely, prosecution can be initiated for said
offence only by a competent officer by filing a
complaint before the Court as otherwise the
Court before whom proceedings is continued on
the basis of police report, would not be
empowered to take cognizance of said offence.
5. In the instant case, prosecution has been
initiated for the offence committed under
Section 188 of IPC on the basis of a police
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report and not on the basis of complaint lodged
in writing by the competent officer, who is
empowered to do so. In that view of the matter,
proceedings initiated against petitioner if
allowed to be continued and is directed to
undergo the ordeal of trial, it would be an abuse
of process of law.”
4. Insofar as the other accused is concerned,
the Co-ordinate Bench of this Court has quashed the
proceedings in the case of Subhash Vs. the State of
Karanataka and another in Crl.P. No.9234/2017,
disposed off on 22nd June 2018, wherein it is held as
under:
“2. Petitioner is arrayed as accused no.2 in
C.C.No.7453/2013 pending on the file of VII
Addl. CMM Court, Bangalore registered for the
offences punishable under Sections 171(B),
171(E), 188 read with Section 34 IPC on the
basis of the final report submitted by the 2nd
respondent under Section 173 Cr.P.C. 3. This
Court had an occasion to deal with the same
matter so far as accused no.1 is concerned.
Ultimately, after a reasoned order, this Court
has quashed the proceedings against accused
no.1. The same has to be made applicable so
far as this petitioner is concerned. 4. This Court
has categorically observed that under Sections
171B and 171E they are non-cognizable
offences and so far as offence under Section
188 IPC the Police have no jurisdiction to
investigate in view of the bar contained in
Section 195 Cr.P.C. Therefore, considering the
said legal lacunae in the case, the Court has
quashed the proceedings against accused no.1.
Under the above said circumstances, the same
order holds good so far as the petitioner is
concerned.”
5. In the light of the aforesaid orders answering
the issue that is called in question in the case at hand,
the further consideration or deeper dwelling in the
matter would become unnecessary.”
It is also germane to notice the judgment of the High
Court of Madras in the case of JEEVANANDHAM v.
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STATE reported in 2018 SCC OnLine Mad 13698,
wherein it is held as follows:-
“19. From the above judgments, it is clear that
in order to prosecute an accused for an offence
punishable under Section 188 of IPC, it is mandatory
to follow the procedure prescribed under Section 195
of the Code, else, such action is rendered void ab
initio. The object of the provision is to provide for a
particular procedure, which gives authority only to the
public servant. The legislative intent is to prevent an
individual or a group of persons from facing criminal
prosecution instituted upon insufficient grounds by
persons actuated by malice, ill will, or frivolity of
disposition and to save the time of Criminal Courts
from being vexed by endless prosecution. Section 195
of Cr.P.C. is an expansion to the general rule
contained under Section 190 of Cr.P.C, wherein, any
person can set the law in motion by making a
complaint.
20. Therefore, it is very clear from the above
judgments that there must be a complaint by a public
servant, who is lawfully empowered, whose lawful
order has not been complied with. The provisions of
Section 195 of Cr.P.C. are mandatory and non-
compliance, with it, will make the entire process
void ab initio, being without jurisdiction.
21. The submission of the learned Additional
Public Prosecutor to the effect that Section 188 of IPC
is a cognizable offence, and therefore, the Police
Officer is entitled to proceed under Section 154, 156
and 157 of Cr.P.C, is not sustainable. The offence
being cognizable by itself, does not enable the Police
Officer to register an FIR for an offence under Section
188 of IPC. The reason being, such registration of an
FIR has to necessarily end with a Police Report under
Section 173(2) of Cr.P.C, which is specifically barred
under Section 195 of Cr.P.C. The definition of a
complaint under Section 2(d) of Cr.P.C. itself makes it
clear that a complaint does not include a Police Report.
The Hon’ble Supreme Court has gone to the extent of
saying that such a Final Report, which is taken
cognizance will make the entire proceedings void ab
initio which would necessarily mean that the
registration of the FIR for an offence under Section
188 of IPC will also become void.
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22. There is one more analogy, which can be
used here. Section 195(1)(b) of Cr.P.C. prohibits any
complaint for an offence that is committed during
Court proceedings. Such offence committed during
Court proceedings like forgery, impersonation, perjury
etc., by itself may be cognizable in nature, but that
does not empower the Police Officer to register an FIR
and complaint in such cases can be given only by the
Court concerned. Therefore, the nature of the offence
does not give a right to the Police Officer to register an
FIR and investigate and file a Final Report, when those
offences fall within the category enumerated under
Section 195 of Cr.P.C. Therefore, the arguments of the
learned Additional Public Prosecutor in this regard is
not sustainable.
23. The next argument of the learned
Additional Public Prosecutor to the effect that since a
Police Officer is also a public servant under Section 21
of IPC, his Final Report filed before the Court under
Section 173(2) of Cr.P.C. must be construed as a
complaint under Section 195(1)(a)(i), is also not
sustainable. The word used under Section 188 of IPC
is “public servant lawfully empowered” and the word
used in Section 195(l)(a)(i) is “public servant
concerned”. The very terminology that has been used
in the provision makes it clear that not all public
servants falling under Section 21 of IPC can give a
complaint in writing, it is only the public servant who
has been specifically authorised, by a specific order in
this regard, who can file a written complaint before the
concerned Judicial Magistrate Court.
24. It is true that a Police Officer by virtue of
the power given under Section 41 of Cr.P.C, will have
the authority to arrest a person, without any warrant
or order from a Magistrate, when a cognizable offence
is committed in his presence or in order to prevent the
committing of a cognizable offence. This power by
itself will not vest the Police Officer to register an FIR
for an offence under Section 188 of IPC. After the
arrest, the concerned Police Officer is duty bound to
inform the public servant authorised about the offence
committed under Section 188 of IPC and the public
servant thereafter, has to proceed in accordance with
the procedure under Section 195(l)(a)(i) of Cr.P.C. In
other words, the power of the Police Officer to arrest a
person committing a cognizable offence, is only a
preventive action and thereafter the procedure to be
followed is guided by Section 195(l)(a)(i) of Cr.P.C.
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... ... ...
29. 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; and
iv) that such disobedience causes or tends
to cause;
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(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(l)(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.”
The High Court of Madras has clearly laid down the
guidelines when offence under Section 188 of the IPC is
to be alleged. Therefore, the very act of bringing the act
as an offence punishable under Section 188 of the IPC
in the teeth of the bar under Section 195 of the Cr.P.C.
would vitiate the entire proceedings. If further
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proceedings are permitted to continue in the teeth of
the aforesaid facts, where no overt act is even alleged
against the petitioners, even in the charge sheet, it
would run foul of the judgment of the Apex Court in the
case of STATE OF HARYANA v. BHAJAN LAL reported
in 1992 Supp (1) SCC 335, wherein it is held as
follows:
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated by
this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226
or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we
give the following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information
report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected
in support of the same do not disclose the
commission of any offence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
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of a Magistrate as contemplated under Section
155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no
prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted
in any of the provisions of the Code or the
concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”
(Emphasis supplied)
8. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal petition is allowed.
(ii) Proceedings in C.C.No.3441 of 2022
pending before the XLII Additional Chief
Metropolitan Magistrate (Special Court for
MP/MLAs’), Bengaluru concerning Crime
No.271 of 2019 of Bilikere Police Station
stands quashed, only against accused
Nos.3 to 9.
(iii) It is made clear that the observations
made in the course of the order are only
for the purpose of consideration of the
case of the petitioners under Section 482
of Cr.P.C. and the same shall not bind or
influence the proceedings against other
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accused pending before the concerned
Court.”
4. In the light of the order passed by this
Court (supra) and for the reasons aforementioned, the
following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The proceedings in C.C.No.528/2023
pending on the file of the Hon’ble Civil Judge and
J.M.F.C., Moodabidri, qua the petitioner, stand quashed.
10. As stated supra, in the absence of any private
complaint by the competent authority as envisaged under
Section 188 read with Section 195 of the Code of Criminal
Procedure, 1973, the impugned FIR qua the petitioner in
relation to the offences punishable under Section 188 deserves
to be quashed.
11. It is also pertinent to note that though Section 188
is a cognizable offence, in view of the finding recorded herein
before, the other offences referred to supra are not attracted to
the facts of the instant case, the question of continuing the
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impugned proceedings qua Section 188 also would not arise in
the facts and circumstances of the instant case.
7. In the result, I pass the following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned FIR is hereby quashed. Liberty
is reserved in favour of the respondents to
initiate appropriate action against the
petitioner for offences punishable under
Section 188 of IPC as well as the provisions of
Licensing And Regulation Of Protest
Demonstration And Protest Marches,
(Bengaluru City) Order, 2021 subject to all
that exceptions and in accordance with law.
(iii) Liberty is reserved in favour of the respondent
-prosecution to take appropriate action in
accordance with law for offences punishable
under Section 188 of IPC read with Section
195 of Cr.P.C subject to all just exceptions
and in accordance with law.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
SS
List No.: 1 Sl No.: 7