The competence of the public servant to lodge a written complaint for offences under Section 188 of IPC is essential for the court to take cognizance of the case.

G.K. ILANTHIRAIYAN, J.

1. The Criminal Original Petition is filed to quash the charge sheet in S.T.C.No.494 of 2018, pending before the learned Judicial Magistrate No.I, Kuzhithurai, Kanyakumari District, on the file of the respondent police as against the petitioners herein, for the offences punishable under Sections 341, 143 and 188 of IPC.

2. The case of the prosecution is that on 07.12.2017 at around 13.00 hours, the petitioner along with other accused gathered unlawfully and raised slogans against the State and Central Government and also made a protest claiming relief and thereby, caused hindrance to the traffic. Hence, a case has been registered against the petitioner.

3. The learned counsel for the petitioner would submit that the petitioner and other accused said to have unlawfully assembled and agitated against the order of the Commissioner of Police, Madurai, and therefore by virtue of Section 195(1) of the Criminal Procedure Code, no Court can take cognizance of the offence punishable under Sections 172 to 178 of IPC, except on the complaint given by the public servant concerned. In the case on hand, the second respondent, who is a Inspector of Police, at the time of alleged occurrence had lodged a written complaint. Therefore, he has no locus or competence to lodge a complaint under Section 188 of IPC. Further, he would submit that the case of the prosecution is that the petitioner and other accused unlawfully assembled and agitated against the order promulgated by the Commissioner of Police, Kanyakumari. But, the Commissioner of Police, Kanyakumari District, did not lodged any complaint and as such the complaint as in the entire proceedings as against the petitioner are liable to be quashed.

4. The learned Government Advocate (criminal side) appearing for the first respondent would submit that the petitioner and other accused, even after the knowledge of Promulgation Order, unlawfully assembled and involved in a road roko and protested against the promulgation order. Therefore, they committed the offences under Sections 341, 143 and 188 of IPC. Therefore, he sought for dismissal of the quash petition.

5. Heard the respective counsels.

6. This Court has carefully considered the rival submissions made on either side.

7. Admittedly, the second respondent is the Inspector of Police, Kaliyakavilai Police Station, Kanyakumari District, whereas the Promulgation Order was passed by the Commissioner of Police, Kanyakumari. He is not the complainant.

8. The only question for consideration is that whether the registration of case under Sections 341, 143 and 188 of IPC, on the complaint lodged by the second respondent is permissible under law or not. In this regard it is relevant to extract Section 195(1)(a) of the Criminal Procedure Code, 1973 :-

"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)of any abetment of, attempt to commit, such offence, or

(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. In view of the above, it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance.

10. The learned counsel for the petitioner relied upon the judgment in Mahaboob Basha Vs. Sambanda Reddiar and Others reported in,1994 1 Crimes 477. In the above judgment cited by the learned counsel for the petitioner in a batch of quash petitions, this Court has held in Paragraph- 25, as follows:-

...25.In view of the discussions, the following guidelines are issued insofar as an offence under