K. Adaikkalam and 5 others vs State

Pratap Singh, J.—The accused in C.C. No. 2726 of 1989 on the file of the Judicial Magistrate, Tambaram, has filed this petition u/s 482,

Code of Criminal Procedure for quashing the said C.C. No. 2726/89.

The Respondent has filed the charge sheet against the Petitioners under Ss. 143 and 188 I.P.C. on the allegation that on 31.5.1989 at about

11.00 hours the Petitioner/accused unlawfully assembled, opposite to Devi Theatre, when a prohibitory order promulgated by D.S.P. was in force,

and were discussing amongst themselves the ways and means to show ''Black Flag'' to the Hon''ble Chief Minister of Tamil Nadu when his convey

was to pass through the G.S.T. Road, Pallavaram and they defied the prohibitory order, lawfully promulgated and thus they have committed the

offence punishable under Ss. 143 and 188 of I.P.C.

Mr. R. Balasubramaniam, the learned Counsel for the Petitioners, would submit that by virtue of Section 195(1) Code of Criminal Procedure no

court shall take cognizance of any offence punishable under Ss. 172 to 188 of the Indian Penal Code, except on the complaint in writing of the

public servant concerned or of some other public servant to whom he is administratively subordinate and that in the instant case, it was the Deputy

Superintendent of Police who promulgated the prohibitory order and that either the D.S.P. or any superior officer shall give the Complaint in

writing for cognisance of offence u/s 188, I.P.C. and in the instant case, only Inspector of Police had given in writing a complaint and so far want of

compliance of the recruitment u/s 195(1), Code of Criminal Procedure the offence u/s 188, I.P.C. shall be quashed. He would further submit that

the offence u/s 143, I.P.C. was for the purpose of committing the offence u/s 188, I.P.C. and when once the offence u/s 188 I.P.C is quashed, the

offence u/s 143, I.P.C. also is liable to be quashed, I have heard Mr. Shanmughavclayutham learned Additional Public Prosecutor on the above

aspects.

I have carefully considered the submissions made by the rival counsel. The Petitioners were charged for the offence u/s 188 I.P.C. for the

reason they have defied the order promulgated by the D.S.P. The D.S.P. or his superior officer could have given the complaint in writing, but in

this case, Inspector of Police had given the complaint in writing and that is in violation of S. 195(1) Code of Criminal Procedure Hence, on this

ground the offence u/s 188, I.P.C. is liable to be quashed. Offence u/s 143, I.P.C. is for committing the offence u/s 188,I.P.C. is being quashed,

the charge for the offence u/s 143, I.P.C. is also liable to be quashed. Hence the Crl.M.P. is allowed and all further proceedings in C.C. No. 2726

of 1989 on the file of the Judicial Magistrate, Tambaram shall stand quashed.