Police cannot register FIR under Section 188 IPC without a written complaint from a public servant; assembly did not constitute an unlawful assembly.

ORDER :

This Criminal Original Petition has been filed to quash the FIR in Crime No. 18 of 2024 on the file of the first respondent.

2. The case of the prosecution is that on 11.01.2024, the petitioner along with others from the Hindu Makkal Katchi gathered to condemn the actions of the Tamil Nadu Government without obtaining prior permission. Hence, the first respondent police registered a FIR in Crime No.169 of 2019 for the offences punishable under Section 188, 143 of IPC.

3. Mr.Senjeraja, party-in-person submitted that the he is an innocent person and he has been falsely implicated in this case. 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 first respondent police had registered this case, under Sections 143 and 188 of IPC as against the petitioner and others. Therefore, he sought for quashing the proceeding.

4. Per contra, the learned Government Advocate (Crl.Side) submitted that the petitioner along with others raised agitation against the Government and the officials of the Government and thereby restrained the public and caused traffic and there are specific allegations as against the petitioner. 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 the learned counsel for the petitioner and the learned Government Advocate (Crl.side) for the respondent and perused the materials available on record.

6. On perusal of the charge, it is seen that the petitioner along with other accused persons gathered to condemn the actions of the Tamil Nadu Government. Therefore, the respondent police levelled the charges under Sections 143 and 188 of I.P.C as against the petitioner and others. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioner. It is also seen from the charge itself that the charges are very simple in nature and trivial. Section 188 reads as follows:

“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 to tender 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