S. Chellappan and Others Vs State

@JUDGMENTTAG-ORDER

G. Rajasuria, J.@mdashThis petition has been filed to quash the F.I.R in Cr. No. 107 of 2010 on the file of the Inspector of Police, Pallathoor Police Station, Pallathoor, Karaikudi Taluk, Sivagangai District.

2. Heard both sides.

3. The nut-shell facts would run thus:

The police registered a case in Cr. No. 107 of 2010 for the offences punishable under Sections 147, 188 and 353 I.P.C on the ground that in violation of the order promulgated by the Deputy Superintendent of Police u/s 30(2) of the Indian Police Act, 1861, the accused persons conducted a meeting in a private Kalyana Mandapam namely Kottaiyur Meenakshi Sundareswarar Kalyana Mandapam and that they raised slogans.

4. The learned Counsel for the petitioners placing reliance on the averments made in this Criminal Original Petition would develop his argument thus:

Absolutely there is nothing to indicate that any offence was committed by the petitioners consequent upon such alleged assembly of persons in the said Kalyana Mandapam. It is trite proposition of law that mere violation of any order promulgated u/s 30(2) of the Act would not constitute an offence u/s 188 I.P.C unless any untoward incident happened, but in this case, even as per the version in the F.I.R, no untoward incident happened and as such, he prays for quashment of the F.I.R and the connected proceedings.

5. The learned Government Advocate (Criminal Side) in all fairness, would submit that to attract Section 353 I.P.C, there are no version found set out in the F.I.R, however, he would stress upon the fact that the mere conducting of such a meeting is quite antithetical to the mandates as contained in Section 30(2) of the Act.

6. Whereas the learned Counsel for the petitioners, in support of his contention, would rely on the decision in Habibar Rahaman Vs. Jagannath Mondal and Others, . An excerpt from it, would run thus:

3. The first contention of Mr. Dutt does not weigh with us. The Executive Magistrate, we have noted, came to know of the violation of the order from the report of the Circle Inspector dated 12.12.77 and he made the complaint on 27.10.78. Section 468(2)(b) Code of Criminal Procedure prescribes one year as the period of limitation for an offence like the one u/s 188 punishable with imprisonment for a term not exceeding one year. The period of limitation as prescribed is required to be computed, u/s 469(1)(b) Code of Criminal Procedure where the commission of the offence was not known to the person aggrieved by the offence, from the first day on which the offence comes to the knowledge of such person. In the instant case the C.I. reported about commission of the offence on 12.12.77 and coming to know that the Executive Magistrate made the complaint on 27.10.78, i.e. within one year. It is not therefore, possible to hold that the complaint was taken cognizance of after the prescribed period. In this connection we would also note that some of the persons other than the present petitioner against whom allegation of the violation of the order was made raised this point of limitation in Criminal Motion No. 79 of 1979 in the Court of Additional Sessions Judge, 3rd Court, Burdwan and the said Court by its order dated 18.1.80 rightly overruled such a contention and upheld the order of the S.D.J.M. Dt.4.4.78.

4. We next proceed to probe the second contention of Mr. Dutt. Section 188 I.P.C., it should be noted, occurs in Chapter fX of the I.P.C. under the heading "Of Contempts of the Lawful Authority of Contempts of Public Servants". The offences mentioned in the Chapter are undoubtedly meant to enforce obedience and respect to the lawful authority of the public servant belonging to the Judicial, Revenue and Police Departments. Nonetheless, it should not be overlooked that mere disobedience of an order promulgated by a public servant does not give rise to an offence contemplated u/s 188 I.P.C. From an analysis of Section 188 I.P.C. one of the most important ingredients of the offence appears to be that the alleged offender has violated an order duly promulgated by a lawfully empowered officer and such disobedience has caused or tended to cause obstruction, annoyance or injury to any person lawfully employed or caused or tended to cause danger to human life health, safety or caused or tended to cause riot or affray. Second part of Section 188 I.P.C while spelling out expressly the consequence of disobedience of an order making such disobedience culpable as an offence expressly provides "if such disobedience causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any persons lawfully employed". The words ''lawfully employed'' occurring in the section should not be overlooked or ignored. Violation of an order promulgated by a public servant lawfully empowered to promulgate such order is not by itself an offence. Such disobedience to amount to an offence u/s 188 I.P.C. should amongst others cause or tend to cause obstruction, annoyance or injury to any person "lawfully employed". u/s 144(3) Code of Criminal Procedure, an order may be directed to persons residing in a particular place or area or to the public generally when frequenting or visiting a particular place or area; and it is common knowledge that for enforcement of such orders persons such as Police and other officials are lawfully employed. An offence would be committed only if disobedience of the order causes or tends to cause obstruction, annoyance or injury only to persons so employed. For constituting the violation of an order u/s 188 I.P.C. mere disobedience of the order is not enough; it must in addition be attended with evil consequences of disobedience as spell out in Section 188 I.P.C. noted earlier. It has been held in Bachuram Kar and Others Vs. The State, that "mere disobedience of an order promulgated by a public servant is not in itself an offence unless it entails one or other of the consequences which the section itself mentions". Similar view has been expressed in the case reported in Pradip Chowdhury Vs. The State, and in Dalganjan Koeri and Others Vs. State, and In Re: V. Subramaniam, . In the complaint made by the Executive Magistrate and taken cognizance of by the learned Sub-divisional Judicial Magistrate there is no indication that besides disobedience of the order of the Executive Magistrate any consequence mentioned in Section 188 I.P.C. resulted or was apprehended. From the materials on record it was prima facie evident that cultivation of the disputed land by the Mondal opposite parties and their labourers was only interfered with in violation of the order of the Executive Magistrate. The complaint did not disclose the most important ingredient of an offence u/s 188 I.P.C as discussed above. In the circumstances we are of opinion that the learned Sub-Divisional Judicial Magistrate was wrong in taking cognizance of the offence complained of by the Executive Magistrate. The proceedings in the case were therefore wholly illegal and are liable to be quashed.

7. A mere perusal of the aforesaid decision would clearly show that the mere assembly of persons without anything more, even as against the mandates as found set out u/s 30(2) of the Act, would not constitute the offence unless some untoward incident is shown to have occurred. But, in this case, no such incident is shown to have occurred. Over and above that, the learned Counsel for the petitioners would submit that in a public road or in a public place, such meeting was not conducted.

8. Whereas a mere perusal of the order promulgated by the Deputy Superintendent of Police would reveal that the prohibitory order promulgated u/s 30(2) of the Act would show that the prior permission should be obtained from the police concerned only for conducting processions and public meetings. But, here, the public meeting was not conducted and of course, some group of people, assembled in a private Kalyana Mandapam.

9. Accordingly, I am of the view that the prosecution as against the petitioners is a misconceived one.

10. In the result, this Criminal Original Petition is allowed and the F.I.R. in Cr. No. 107 of 2010 on the file of the Inspector of Police, Pallathoor Police Station, Pallathoor, Karaikudi Taluk, Sivagangai District and the connected proceedings are quashed. Consequently, the connected Miscellaneous Petition is closed.