Madras High Court: G.K. Ilanthiraiyan, J., allowed a criminal petition and quashed proceedings in the criminal case filed against the petitioner protesting against Citizenship Amendment Act.
Case of the prosecution
Petitioner along with other accused persons protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the central government to withdraw the said Citizenship Amendment Act without getting prior permission from the authority concerned.
Police filed an FIR on the basis of the above-stated allegation under Sections 143 and 188 of Penal Code, 1860.
Petitioner’s counsel submitted that the Supreme Court of India has held that right to freely assemble and also right to freely express once view or constitutionally protected rights under Part III and their enjoyment can be only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of the Constitution of India.
Bench observed that the petitioner along with other persons protested against the implementation of Citizenship Amendment Act and demanded the Central Government to withdraw the same. The protest was conducted on a public road without getting prior permission from the authority concerned.
Thus, on the basis of the above-stated respondent police had levelled charges under Sections 143 and 188 IPC.
Further the Court also noted the fact that no one was examined to substantiate the charges against the petitioner except for the official witnesses.
Only question for consideration is that whether the registration of case under Sections 143, 188 IPC, registered by the respondent is permissible under law or not?
Court referred to Section 195(1)(a)of the Criminal Procedure Code, 1973 for the above stated question, which talks about:
Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
Referring to the above, Court stated that
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.
Thus, while quashing the proceedings against the petitioner, Court stated that, FIR had been registered by the respondent police for the offences under Sections 143 and 188 IPC. He 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. [Shamsul Huda Bakavi v. State, 2020 SCC OnLine Mad 1298 , decided on 26-06-2020]