IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Crl.MC.No. 641 of 2010() ----------------------------------- C.C.623/2009 JUDICIAL FIRST CLASS MAGISTRTE COURT-I, HOSDURG. CRIME NO.66/2006 OF HOSDURG POLICE STATION. PETITIONERS/ACCUSED NOS.2 & 7 -------------------------------------------------- 1. K. MUHAMMED ASLAM, AGED 22 YEARS S/O.ABDUL KHADER, HASEENA MANZIL KUSHAL NAGAR, PO KANHANGAD KANHANGAD VILLAGE, KASARAGOD DISTRICT. 2. NOUFAL T ,AGED 22 YEARS S/O. MUHAMMED, RASHID MANZIL HOSDURG KADAPPURAM, PO KANHANGAD KANHANGAD VILLAGE,HOSDURG TALUK KASARAGOD DISTRICT. BY ADV. MR.K.P.HARISH RESPONDENT/STATE: --------------------------------- STATE, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.K.S. SIVAKUMAR. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.641 OF 2010 ------------------------------------------ Dated 24th March 2010 O R D E R Petitioners are the accused in C.C.623/2009 on the file of Judicial First Class Magistrate-I, Hosdurg taken cognizance for the offences under Sections 143, 147 and 188 read with Section 149 of Indian Penal Code on Annexure-A2 final report. Prosecution case is that on 4/2/2006 at about 6.30 p.m, 39 accused formed themselves into an unlawful assembly in front of Kanhangad bus stand at S.H.Road, without permission of police authorities conducted a procession in protest against publication of cartoon denigrating the Prophet and thereby committed the offences. Petition is filed Crmc 641/10 2 by accused 2 and 7, to quash the cognizance taken contending that cognizance taken for the offence under Section 188 of Indian Penal Code is in violation of the mandatory provisions under Section 195(1) of Code of Criminal Procedure and ingredients of offences under Sections 143 and 147 are not attracted and therefore, the cognizance taken is to be quashed. 2. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 3. Section 195(1)(a)(i) of Code of Criminal Procedure provides that no court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of Indian Penal Code except on a complaint in writing of the public servant concerned or of Crmc 641/10 3 some other public servant to whom he is administratively subordinate. Section 188 of Indian Penal Code provides the punishment for disobedience to an order duly promulgated by a public servant. Under this Section whoever, knowing that by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from certain act, or to take certain order with certain property in his possession or under his management disobeys such direction, shall if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with the sentence provided therein. Therefore, to attract an offence under Section 188, there should be an order promulgated by a public Crmc 641/10 4 servant lawfully empowered to promulgate such order and by that order accused is to abstain from certain act or to take certain order with certain property in his possession or under his management, and the accused should disobey such direction. There is no case for the prosecution that there was any order promulgated with regard to the conduct of procession. Even if, there was a disobedience of such an order and an offence under Section 188 attracted in the absence of a complaint in writing, as provided under Sub Section 1 of Section 195, learned Magistrate could not have taken cognizance of the offence. In such circumstances, the cognizance taken for the offence under Section 188 of Indian Penal Code is bad. But I cannot agree with the submission of the learned counsel appearing for the Crmc 641/10 5 petitioners that cognizance taken for the offence under Sections 143 and 147 with the aid of 149 are also to be quashed. Question whether there is sufficient evidence to convict the petitioners is a matter to be decided by the learned Magistrate. Petition is allowed in part. Cognizance taken for the offence under Section 188 of Indian Penal Code in C.C.623/2009 on the file of Judicial First Class Magistrate-I, Hosdurg is quashed. Petitioners are at liberty to raise all the contentions before the learned Magistrate. They are also at liberty to seek an order of discharge under Section 239 of Code of Criminal Procedure. Learned counsel then submitted that personal presence of the petitioners may be dispensed with at the time of trial. It is upto the petitioners to file an Crmc 641/10 6 application under Section 205 of Code of Criminal Procedure before the learned Magistrate and it is for the learned Magistrate to decide whether exemption is to be granted or not, on the facts and circumstances of the case. M.SASIDHARAN NAMBIAR, JUDGE. uj.