The Hon’ble High Court of Madras vide order dated 26.06.2020 held that the police is not the competent authority to register an FIR for offences falling under Section 188 of the Indian Penal Code 1860.
The said order was passed in a petition filed by one Shamsul Huda Bakavi accused of protesting on a public road against the implementation of the Citizenship Amendment Act 2019 and demanding its withdrawal without receiving any prior permission from the concerned authorities. An FIR was thereby registered by the Vellore Police Authorities against the Petitioner/Accused under Sections 143 and 188 of the Indian Penal Code 1860.
Counsel for the Petitioner submitted that, being a social activist, the Petitioner had with several other members protested against the implementation of the Citizenship Amendment Act 2019, further demanding the Central Government to withdraw the said Citizenship Amendment Act 2019 and that the same was within his right to freedom of assembly and freedom of expression protected under Part III of the Indian Constitution.
It was further contended that no court could take cognizance of an offence under Section 188 of the Indian Penal Code 1860 unless the public servant furnishes a written order of the concerned authority. Also, there was no evidence to prove any unlawful assembly conducted by the Petitioner, and infact the Petitioner along with other members were assaulted by the Police authorities.
Counsel for the Respondent on the other hand called the Petitioner a habitual offender and submitted that since Section 188 of Indian Penal Code 1860 is a cognizable offence, it was the duty of the police officers to register an FIR. He further added that even though Section 195 (a) (i) has barred taking cognizance of offences falling under Section 188 of the Indian Penal Code, 1860, it did not mean that the police couldn’t register an FIR and investigate the case for the same.
Deciding upon whether the registration of case under Sections 143 and 188 of Indian Penal Code 1860 registered by the Respondent was permissible under law or not, Justice G.K Ilanthirayan held that as per Section 195 (a) (i) Indian Penal Code, no court could take cognizance of offences under Section 172 to Section 188 of Indian Penal Code 1860 unless the public servant has lodged a complaint in writing.
The Hon’ble High Court further took reliance of the judgement passed in the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, wherein the following observations were made:
- A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
- A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC
- The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
- In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely; (i)that there must be an order promulgated by the public servant; (ii)that such public servant is lawfully empowered to promulgate it; (iii)that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; (iv)that such disobedience causes or tends to cause; (a)obstruction, annoyance or risk of it to any person lawfully employed; or (b)danger to human life, health or safety; or (c) a riot or affray
- The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
- The promulgation through which, the order is made known must be by something done openly and in public and private information will not be promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
- No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.
It was therefore held that in the present case, the Respondent Police was not the competent authority to register an FIR under Section 188 of the Indian Penal Code 1860 and hence, the FIR or final report was liable to be quashed. Also, the Respondent had failed to prove that the assembly held by the Petitioner was unlawful in nature.
Taking note of the above, the Hon’ble High Court quashed the proceedings in Crime No.67 of 2020 on the file of the Respondent police against the Petitioner, thereby allowing the present Petition.