Murugesan and Others vs State of Tamil Nadu

This is a petition under S. 482 Cr.P.C. to quash the proceedings in C.C. 258 of 1984, in which the petitioners herein are the accused, pending

on the file of the Judicial Second Class Magistrate, Virudhachalam.

The short facts of the case are as follows : The petitioners herein are the members of the Communist Party of India. There had been

dissatisfaction among the general public with regard to the conduct of the Sub-Inspector of Police, Sri Mushnam Police station. To protest against

the high handed actions and attitude of the Sub-Inspector of Police, the petitioners assembled and demonstrated before the Sri Mushnam Police

station on 8-5-1984 at 9 a.m. It appears that there had been an order of promulgation under S. 30(2) of the Police Act by the Deputy

Superintendent of Police, Chidambaram, which was in force then. The Inspector of Police. Sethiathope directed the petitioners to disperse from

the place and as the petitioners refused to do so, the Inspector of Police, Sethaiathope registered a case in Sri Mushnam Police station Cr. No.

103/84 against the petitioners. Subsequently, the Inspector of Police, Kattumannargudi took up further investigation and after completing

investigation, he filed a report under S. 173 Cr.P.C. for offences under sections 147, 341, 188 and 309, I.P.C. before the Judicial Second Class

Magistrate, Vridhachalam. Hence the present petition.

Learned counsel for the petitioners would contend with all vehemence and force that even assuming for argument-sake that all the materials

available on record in the shape of FIR, 161 statements of witnesses and the allegations in the charge-sheet are taken to be true, even then, the

petitioners can by no stretch of imagination he mulcted with criminal liability for offences under sections 147, 341, 188 and 309 IPC. He would

further contend that there is no complaint in writing by the Deputy Superintendent of Police, Chidambaram, who promulgated and order under S.

30(2) of the Police Act and S. 195 Cr.P.C. would operate as a bar in launching prosecution against the petitioners unless there is a written

complaint by the Officer, who issued the promulgation order. The learned counsel for the petitioners took me through the materials available on

record and the scanning of the same would point out that the petitioners on the relevant date and time in question had in fact assembled and

demonstrated before the Sri Mushnam Police station so as to condemn the high handed activities of the Sub-Inspector of Police and observed a

token fast from 9 a.m. till the evening of the same day. As rightly contended by the learned Public Prosecutor, observance of a token strike from

morning till the evening cannot at all be construed to he an office punishable under S. 309, I.P.C.

Further, the materials on record also do not point out any violence or criminal force used by the petitioners on the relevant date and time.

Therefore, mere presence of the petitioners in front of the Sri Mushnam Police station without resorting to any violence or criminal force, would not

constitute an offence under S. 147. I.P.C.

So far as the offence under S. 341, I.P.C. is concerned, the materials do not at all disclose that there was any complaint from any body saying

that any body was restrained from moving towards a particular direction on the relevant date and time. Therefore, it cannot be said that an offence

under S. 341, I.P.C. has been made out. At this juncture, the learned Public Prosecutor would point out that though the materials on record do not

establish an offence punishable under Ss. 309, 341, and 147, I.P.C., yet the offence under sections 143, I.P.C. and S. 71(ii) of the City Police

Act, could be held to be made out. The learned Public Prosecutor further submits that the offence under S. 143, I.P.C. is a cognizable one though

the offence under S. 71(ii) of the City Police Act is non-cognizable, and, therefore, the registration of the case against the petitioners inclusive of

the offence under S. 188, I.P.C. without resorting to the filing of the complaint in writing by the officer who promulgated an order under S. 30(2)

of the Police Act is definitely permissible. On the other hand, the learned counsel for the petitioners would contend that the offences under S. 143

I.P.C. and Section 71(ii) of the City Police Act would very well fall within the ambit of the provisions of S. 188, I.P.C. in the sense that S. 71(ii) of

the City Police Act referring to obstruction to the free flow of traffic and S. 143 I.P.C. referring to a member of an unlawful assembly to commit an

offence are covered under S. 188 I.P.C. Further, S. 195 Cr.P.C. according to the learned counsel for the petitioners, specifically provides that a

complaint for an offence under S. 188 I.P.C. has to be given in writing by a public servant concerned. So far as the case on hand is concerned,

what has been done is that the prosecuting agency has clubbed the offence under S. 188 I.P.C. along with other cognizanle offences and registered

a case against the petitioners, so as to avoid embargo of S. 195 Cr.P.C. As already pointed out, the offences under S. 147, 341 and 309 I.P.C.,

have not been made out on the materials available on record. But as rightly pointed out by the learned Public Prosecutor an offence under S. 143.

I.P.C. and S. 71(ii) City Police Act appears to have been made out. I have already stated that the offence under S. 143, I.P.C. and the offence

under S. 71(ii) of the City Police Act would fall within the ambit of S. 188, I.P.C.

In this connection a useful reference could be made to the observations of the Supreme court in Durgacharan Naik and Others Vs. State of

Orissa, , which run as follows (para 8) :

We have expressed the view that S. 195. Cr.P.C. does not bar the trial of an accused person for a distinct offence disclosed by the same or

slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of S. 195 cannot be

evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with

an offence to which that section does not apply and then convicting him of an offence to which it does. On the ground that the latter offence is a

minor one of the same character, or by describing the offence as one punishable under some other section of the I.P.C. though in truth and

substance the offence falls in the category of sections mentioned in S. 195 Cr.P.C. Merely by changing the garb or label of an offence which is

essentially an offence covered by the provisions of S. 195 prosecution for such an offence cannot be taken cognisance of by misdescribing it or by

putting a wrong label on it ....

In view of the above observations of the Supreme Court it is crystal clear that the provision of S. 195 Cr.P.C., cannot be evaded by resorting to

devices or camouflage. The case on hand is one resorting to device or camouflage of clubbing other cognisable offences, actually not made out,

along with the offence under S. 188, I.P.C. so as to evade the mandatory provisions of S. 195 Cr.P.C. requiring a specific complaint to be given

by a public servant concerned. In the instant case, admittedly no written complaint had been given by the Deputy Superintendent of Police,

Chidambaram, who is stated to have issued the order of promulgation under S. 30(2) of the Police Act.

In view of what has been stated above, this petition deserves to be allowed and is ordered accordingly.

In the result, this petition is allowed and the proceedings in C.C. 258 of 1984, pending on the file of the Judicial Second Class Magistrate,

Virudhachalam are quashed.

Petition allowed.