Requirement for a written complaint by a public servant for offences under Section 188 of IPC.

JUDGMENT

(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C, to call for the records relating to the proceedings of First Information Report in Crime No.845 of 2016 pending on the file of the 1st respondent police and quash the same in respect of petitioners/Accused Nos.1 to 4 herein.)

1. This Criminal Original Petition has been filed to quash the proceedings in Crime No.845 of 2016 on the file of the first respondent, thereby having been taken cognizance for the offences under Sections 143 and 188 of I.P.C. as against the petitioners.

2. The case of the prosecution is that on 24.11.2016, around 4.35, the petitioner along with other accused involved protest to oppose the Demonetizations' of Rs.1000/- and Rs.500/- notes, without getting prior permission from the authority concerned. On the basis of the above said allegation, the respondent police registered the complaint and filed a charge sheet against the petitioners and others for the offences under Sections 143 and 188 of IPC in Crime No.845 of 2016, on the file of the first respondent.

3. The learned counsel appearing for the petitioners submitted that the petitioners are 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 petitioner along with several members had involved protest to oppose the Demonetizations of Rs.1000/- and Rs.500/- notes. 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 and 188 of IPC as against the petitioner and others. Therefore, he sought for quashing the proceeding.

4. Per contra, the learned Additional Public Prosecutor submitted that the petitioner along with others involved protest to appose the Demonetizations of Rs.1000/- and Rs.500/- notes. and there are specific allegations as against the petitioner 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 petitioner is an 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.Agilesh Kumar, learned counsel for the petitioners and Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for the first respondent.

6. On perusal of the charge, it is seen that the petitioners and others staged protest to oppose the Demonetizations of Rs.1000/- and Rs.500/- notes, without getting prior permission from the concerned authority. Therefore the respondent police levelled the charges under Sections 143 and 188 of I.P.C. as against the petitioners and others. Except the official witnesses, no one