ORDER :

1. The petitioner/A7, who is facing trial before the learned V Metropolitan Magistrate, Egmore, Chennai in C.C. No. 8299 of 2017, for offence under Sections 143, 353, 188 and 75 CP Act r/w 7(1)(a) CLA Act @ 143, 145, 147 and 353 IPC, has filed the above Quash Petition.

2. On information, the 2nd respondent/defacto complainant the Inspector of Police, Sembium Police Station, Chennai registered a case in Crime No. 1277 of 2017 on 09.09.2017 against the petitioner. On completion of investigation, charge sheet filed against them, listing five witnesses as LW-1 to LW-5 and documents.

3. The gist of the case is that on 09.09.2017, at about 17.00 hrs. the 2nd respondent/LW-1 along with the Police party was on duty, at that time, near Murasolimaran Park, the petitioner and others without any prior permission from the authorities concerned had unlawfully assembled and obstructed the free movement of traffic and general public, raised slogans and conducted a dharna. When the 2nd respondent intervened and insisted them to disburse, the petitioner/protesters failed to do so. Hence, a complaint was lodged and on completion of investigation charge sheet came to be filed before the learned V Metropolitan Magistrate, Egmore, Chennai and the same was taken on file as C.C. No. 8299 of 2017.

4. The contention of the petitioner is that in this case, LW-1 to LW-5 are all public personnel and no private person examined and cited as witness in this case. The case of the prosecution is that the petitioners are said to have indulged in a protest against the NEET examination. It is highly improbable that no public witness was present in the place of occurrence and no reason given for non examination of public witnesses. In this case, the FIR in Crime No. 1277 of 2017 was registered for offence under Section 188 IPC. As per Section 188 IPC, only the public servant is authorized to lodge a complaint and Section 195 Cr.P.C. is clear embargo as to how a complaint to be registered and investigated by the Police for offence under Section 188 IPC. In this case, there is no complaint from the public servant. Hence, the registration of the FIR its void ab initio and continuing the investigation for other offences is also not permitted.

5. The learned counsel for the petitioner submitted that this Court in catena of judgments have clearly held that the police personnel are not empowered to register an FIR under Section 188 IPC. There is nothing to show that on the date of occurrence, there was any prohibitory order in force and whether that order was communicated in the prescribed manner is also not known. The learned counsel further submitted that this Court in the cases of Madhan Mohan vs. State and Another in Crl. O.P. Nos. 23129 and 23127 of 2019 on the similar grounds, quashed the proceedings against the accused. Further, in the case of Jeevanandham and Others vs. State Rep. by Inspector of Police and Another, (2018) 2 LW Crl. 606, had given an authoritative pronouncement regarding the cases to be registered and investigated under Section 188 IPC and also issued certain guidelines, which is violated in this case.

6. The learned counsel for the petitioner further submitted that the petitioner raised slogans and held demonstration against the Government regarding NEET exam, which cannot be construed as unlawful act. Right to Dissent is the Hallmark of Democracy, the petitioner only expressed his displeasure which is his fundamental right. Hence, he prayed for quashing of the proceedings against the petitioner.

7. The learned Government Advocate (Criminal Side) appearing for the respondents submitted that in this case, a complaint was lodged by the 2nd respondent/the Inspector of Police, Sembium Police Station, Chennai/LW-1. When he was on patrol duty along with LW-2 to LW-4 near Murasolimaran Park, found the petitioner had assembled and raised slogans against the Government and also caused disturbance to the public. Timely intervention of the respondents, fu