An FIR registered by police for offences under S.172 to 188 IPC is void ab initio if the mandatory procedure under S.195 CrPC requiring a written complaint by the concerned public servant is not followed, constituting an abuse of process justifying quashment despite the commencement of trial.

ORDER :

L.VICTORIA GOWRI, J.

The present Criminal Original Petition raises a recurring and significant question touching upon the interplay between the statutory restrictions imposed during public religious festivals, the procedural safeguards governing prosecution for offences under Sections 172 to 188 IPC, 1860, and the scope of inherent jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 corresponding to Section 482 Cr.P.C., 1973.

2. The case arises out of allegations relating to installation of a Vinayagar idol during Vinayagar Chathurthi celebrations allegedly in violation of Government guidelines and District Administration regulations. Though at first blush the matter may appear to involve a simple factual controversy concerning the height and composition of an idol, the petitioner seeks to attack the very legality of the registration of the FIR, the investigation conducted by the police, the filing of the final report, and the cognisance taken by the learned Magistrate.

3. In the said backdrop, this Court is called upon to determine whether the prosecution deserves to be interdicted at the threshold or whether the petitioner must necessarily face the rigours of trial.

Case of the prosecution:

4. The prosecution case, in brief, is that on 19.09.2023 at about 10.00 a.m., in connection with Vinayagar Chathurthi celebrations conducted near Kaliamman Temple, the petitioner herein allegedly installed a Vinayagar idol measuring approximately 13 feet in height in violation of the restrictions imposed by the District Administration.

5. According to the prosecution, the District Collector had prescribed specific regulatory conditions governing installation of Vinayagar idols during the festival season, including restrictions relating to the permissible height of idols, prohibition against use of Plaster of Paris idols, mandatory installation of CCTV cameras, provision for first-aid facilities, and obtaining prior permissions from the Revenue Department, Police Department, and Fire and Rescue Services Department.

6. The allegation against the petitioner is that he installed a Vinayagar idol of about 13 feet in height made of Plaster of Paris instead of a clay idol within the prescribed dimensions and further failed to comply with the other mandatory safety and regulatory requirements imposed by the authorities. It is further alleged that no CCTV cameras were installed at the venue and no first-aid medical facilities were arranged, thereby causing inconvenience and obstruction to the public.

7. Based on the complaint given by the second respondent, the first respondent police registered FIR in Crime No.20 of 2024 for offences under Sections 188 and 268 IPC, 1860 and upon completion of investigation laid a final report before the learned District Munsif-cum-Judicial Magistrate, Peraiyur, which was taken on file as S.T.C.No.20 of 2024.

Grounds for quash:

8. The petitioner seeks quashment of the proceedings principally on the following grounds:

(i) The offences under Sections 188 and 268 IPC are non-cognisable offences and therefore the police could not have registered an FIR or investigated the matter without obtaining permission from the jurisdictional Magistrate;

(ii) The prosecution is hit by Section 174(2) BNSS, 2023 corresponding to Section 155(2) Cr.P.C., 1973;

(iii) The procedure contemplated under Section 195 Cr.P.C., 1973 for offences under Section 188 IPC, 1860 has not been followed;

(iv) No scientific or chemical analysis was conducted to establish that the idol was made of Plaster of Paris;

(v) No measurement was taken to establish that the idol exceeded the prescribed height;

(vi) No idol was seized and therefore the prosecution lacks foundational material evidence;

(vii) The ingredients of public nuisance under Section 268 IPC are wholly absent;

(viii) The proceedings are vitiated by mala fides and abuse of process of law;

(ix) The learned Magistrate mechanically took cognisance without examining t