The case concerned an activist who was arrested on allegations that he had protested against the Citizenship (Amendment) Act, 2019 (CAA) on a public road without permission last January.
While quashing a criminal case filed against an Anti-CAA protestor, the Madras High Court was recently prompted to reiterate that the police cannot by itself register an FIR for offences falling under Section 188 of the Indian Penal Code (Shamsul Huda Bakavi v. State and ors).
The case concerned an activist who was arrested on allegations that he had protested against the Citizenship (Amendment) Act, 2019 (CAA) on a public road without permission last January. An FIR was filed thereafter against him, citing charges under Sections 143 and 188 of the Indian Penal Code (IPC).
Section 188, IPC deals with the offence of disobeying orders promulgated by a public servant, whereas Section 143, IPC deals with punishment for the offence of participating in an unlawful assembly.
Pertinently, Section 195(1)(a) of the Code of Criminal Procedure (CrPC) bars courts from taking cognizance of an offence under Sections 172 to 188, IPC unless there is a complaint in writing from the public servant concerned or of some other public servant to whom he is administratively subordinate.
“Therefore, it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance”, Justice GK Ilanthiraiyan observed in his June 26 order.
Notably, the Court also referred to the cases of Mahaboob Basha v. Sambanda Reddiar and others and Jeevanandham and others v. State rep. by the Inspector of Police, Karur District. In the latter case, the Madras High Court had already issued guidelines with respect to when cases under Sections 172 to 188 of the IPC can be registered.
In that case, the Court had clarified that “A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.”
Other guidelines issued by the Court in that case included that:
A Police Officer by virtue of the powers conferred under Section 41, CrPC may carry out arrest 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 of arrest (as stipulated under Section 41, CrPC) and immediately thereafter, he has to inform about the same to the public servant concerned/ authorised.
Such public servant may then 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 the instant case, however, the Court observed that the police had registered the FIR citing Section 188, IPC against the anti-CAA protestor without being competent to do so. Further, the Judge did not find anything on record to indicate that the petitioner had participated in an unlawful assembly.
The Court, therefore, quashed the case, observing that,
“He (the police officer) is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC. Therefore, the final report cannot be sustained and it is liable to be quashed.”