BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on : 12.09.2024 Pronounced on : 04.10.2024 CORAM:

THE HON'BLE MR.JUSTICE K.MURALI SHANKAR Crl.O.P.(MD)No.13453 of 2024 and Crl.M.P.(MD)No.8338 of 2024 Mariappan ... Petitioner Vs.

1.The Inspector of Police, Puliampatti Police Station, Thoothukudi District.

(In Crime No.36 of 2022)

2.Kannan, working as Sub-Inspector of Police, Puliampatti Police Station, Thoothukudi District ... Respondents Prayer : This Criminal Original Petition filed under Section 528 BNSS, to call for the records relating to the case in STC.No.13 of 2022 on the file of the learned Judicial Magistrate, Ottapidaram and quash the same as illegal, insofar as this petitioners are concerned.

For Petitioner : Mr.M.Prabu For R1 : Mr.E.Antony Sahaya Prabahar, Additional Public Prosecutor.

ORDER

This criminal original petition has been filed seeking orders to quash the charge sheet in STC.No.13 of 2022 pending on the file of the learned Judicial Magistrate, Ottapidaram.

2.The case of the prosecution is that on 15.05.2022 at about 01.00 pm., the defacto complainant, Sub-Inspector of Police, along with his team were on patrol duty and they have found that the petitioner and other accused were uttering filthy words in public place, that the Police directed them to disperse and they defied the direction and continue to commit public nuisance and hence, the second respondent lodged a complaint.

3.On the basis of the complaint given by the second respondent, the first respondent registered a case in Cr.No.36 of 2022 for the offence under Section 291 IPC as against three persons including the petitioner herein. After completing investigation, the first respondent has filed the final report and the same was taken on file in STC.No.13 of 2022 and the same is pending on the file of the learned Judicial Magistrate, Ottapidaram.

4.When the matter is taken up earlier, the learned counsel appearing for the petitioner submitted that FIR came to be registered for the offence under Section 291 IPC, without getting permission from the Jurisdictional Magistrate as the offence is non-cognizable in nature. But, it is pertinent to note that the offence under Section 290 IPC alone is non-cognizable whereas the offence under Section 291 IPC is cognizable in nature.

5.The learned counsel appearing for the petitioner would then contend that the acts / commissions attributed to the petitioner cannot be said to attract the offence under Section 291 IPC.

6.At this juncture, it is necessary to refer the decision of this Court in Crl.O.P.(MD)No.16135 of 2021 dated 09.11.2021 and the relevant passages are extracted hereunder:-

5.The question that arises for consideration is whether the acts attributed to the petitioners can be said to attract the offence under Section 291 of IPC. One of the very few cases on the subject is the one reported in ILR (1886) 8 ALL 99 (Queen- Empress vs. Jokhu). It was held by His Lordship Mr.Justice Oldfield that to support a conviction under Section 291 of the Penal Code, there must be proof of an injunction to the accused individually against repeating or continuing the same particular public nuisance. It must be shown that the person convicted had on some previous occasion committed the particular nuisance, had been enjoined not to repeat or continue it, and had repeated or continued it. The authority under which a Magistrate can order or enjoin a person against repeating or continuing a public nuisance is Section 143 of the Criminal Procedure Code; and it is the infringement of this order or injunction that is punishable under Section 291 of the Indian Penal Code; and it is clear that what is contemplated is an order addressed to a particular person (see Schedule V, Form 20). Of course, Justice Oldfield was referring to what is now the old 1898 Code.

6.Section 143 of the old Code was as follows :

“A District Magistrate or Sub-divisional Magistrate, or any other Magistrate empowered by the Local Government or the District Mag