The police must have the authority to register an FIR for the offence under Section 188 of IPC, and the complaint must satisfy the requirements of Section 143 of IPC.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the entire proceedings pending on the file of the Judicial Magistrate No.II at Poonamallee in C.C.No.16 of 2022 pending disposal of this petition.)

1. This Criminal Original Petition has been filed to call for the entire proceedings pending on the file of the Judicial Magistrate No.II at Poonamallee in C.C.No.16 of 2022 pending disposal of this petition.

2. The case of the prosecution is that on 16.08.2020 at about 11.30 p.m., the petitioners had assembled in front of the 1st petitioner's then residence at No.26, Ashtalakshmi Nagar, raised slogans condemning against the implementation of National Education Police 2020 by the Union Government, without getting prior permission from the concerned authority. On the basis of the above said allegation, the respondent police registered the complaint and filed a charge sheet against the petitioners for the offences under Sections 143, 188 and 117 of IPC in C.C.No.16 of 2022, on the file the learned Judicial Magistrate No.II, Poonamallee.

3. The learned counsel appearing for the petitioner submitted that the petitioner is a social activist and has been raising voice for the public cause and public welfare, whenever injustice and inaction of the government machineries. In order to draw the attention of the Central and State Governments, the petitioners raised slogans condemning against the implementation of National Education Police 2020 by the Union Government. The learned counsel further submitted that the Hon'ble Supreme Court of India has held that the right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the rights of freedom of speech and assemble that is so essential to a democracy. According to Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority. Further he submitted that the petitioner or any other members had never involved in any unlawful assembly and there is no evidence that the petitioner or others restrained anybody. However, the officials of the respondent police had beaten the petitioner and others. When there was lot of members involved in the protest, the respondent police had registered this case, under Section 143, 188 and 117 of IPC as against the petitioner and others. Therefore, he sought for quashing the proceeding.

4. Per contra, the learned Government Advocate (Criminal Side) submitted that the petitioners raised slogans condemning against the implementation of National Education Police 2020 by the Union Government and there are specific allegations as against the petitioners to proceed with the trial. Further, he would submit that Section 188 of IPC is a cognizable offence and therefore it is the duty of the police to register a case. Though there is a bar under Section 195(a)(i) of Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not mean that the police cannot register FIR and investigate the case. More over, the petitioners are habitual offender by committing this kind of crimes. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.

5. Heard Mr.S.Xavier Felix, learned counsel for the petitioners and Mr.S.Santhosh, learned Government Advocate (Criminal Side) appearing for the first respondent.

6. On perusal of the charge, it is seen that the petitioners raised slogans condemning against the implementation of National Education Police 2020 by the Union Government, without getting prior permission from the concerned authority. Therefore the respondent police levelled the charges under Sections 143, 188 and 117 of I.P.C. as agai