The inability of police to register FIR under Section 188 IPC without a written complaint from an authorized public servant renders proceedings unsustainable.

ORDER :

The Criminal Original Petition has been filed invoking Section 528 Bharatiya Nagarik Suraksha Sanhita, 2023, seeking orders to quash the proceedings in S.T.C.No.314 of 2024, on the file of the Judicial Magistrate Court, Tirumangalam.

2. The case of the prosecution is that on 08.05.2016, the de-facto complainant, while conducting a patrol during election time along with his police officials, observed the first petitioner, Solairaja (the Deputy Chairman of the Tamil Nadu Olympic Association), and other petitioners, along with around 500 individuals (who can be identified upon seeing), conducting an election campaign on the Virudhunagar to Madurai Main Road without prior permission. When the de-facto complainant, along with other police personnel, attempted to intercept the procession, the petitioners continued their election campaign at the same location. Hence, the de-facto complainant has lodged a complaint. Based on the complaint, a case in Crime No.249 of 2016 was registered for the offences under Sections 143 and 188 of the I.P.C. and on completion of investigation, filed the final report, which was taken cognizance of in S.T.C.No.314 of 2024, by the learned Judicial Magistrate, Tirumangalam.

3. The learned counsel for the petitioners submitted that Sections 143 and 188 of the INDIAN PENAL CODE (I.P.C.) cannot be applied to the petitioners. The petitioners and the other persons involved in the case have not violated any law, and there are no specific allegations against them indicating that they formed an unlawful assembly or used criminal force with a common object to overawe the Central or State Government, resist the execution of any law or legal process, or committed any mischief or criminal trespass. In the absence of such specific allegations, it is clear that the assembly in question cannot be considered an unlawful assembly, and the members of that assembly cannot be prosecuted under Section 143 of the I.P.C.

4. The learned counsel further submitted that the charge under Section 188 of the I.P.C. against the petitioners should be set aside. The respondent police do not have the authority to register a case for an offence under Section 188 of I.P.C., as it is only the concerned public servant or an authorized officer who can file a written complaint before the Judicial Magistrate. In this case, no such written complaint was filed by any public servant, nor was there any violation of a promulgated order. Therefore, the charge under Section 188 of the I.P.C. in S.T.C.No. 314 of 2024, before the learned Judicial Magistrate, Tirumangalam, should be quashed.

5. The learned counsel for the petitioners further submitted that the petitioners have not violated any traffic regulations, as alleged in the impugned charge sheet. There are no specific allegations made against the petitioners. Further, the respondent police are infringing upon the petitioners' fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India. The petitioners, along with others, have not conducted any demonstration as alleged by the prosecution, and no untoward incidents occurred during the event. Hence, the final report filed against the petitioners in S.T.C.No.314 of 2024 before the Judicial Magistrate Court, Tirumangalam, should be set aside.

6. The learned Additional Public Prosecutor for the State submits that there are specific allegations as against the petitioners to proceed with the case. Further, he would submit that Section 188 of I.P.C. 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 1