K ADAIKKALAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The accused in c.c. No. 2726 of 1989 on the file of the Judicial Magistrate, Tambaram, has filed this petition under Sec. 482 Cr. P.C. for-quashing the said c.c. No. 2726/89.

(2.) The respondent has filed the charge sheet against the petitioners under Sections 143 and 188 I.P.C. on the allegation that on 31.5.1989 at about 11.00 hours the petitioners/accused unlawfully assembled, opposite to Devi Theatre, when a prohibitory order promulgated by D.S.P. was in force, and were discussing amongst themselves the ways and means to show Black FlagT to the Honble Chief Minister of Tamilnadu when his convey was to pass through the G.S.T. Road, Pallavaram and they defied the prohibitory order, law fully promulgated and thus they have committed the offence punishable under Sections 143 and 188 I.P.C.

(3.) Mr. R. Balasubramaniam, the learned counsel for the petitioners, would submit that by virtue of Sec. 195(1) Cr. P.C. no court shall take cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate and that in the instant case, it was Deputy Superintendent of Police who promulgated the prohibitory order and that either the D.S.P. or any superior officer shall give the complaint in writing for cognizance of offence under Sec. 188, I.P.C. and in the instant case, only Inspector of Police had given in writing a complaint and so for want of compliance of the proof has been adduced. No petition has been filed for sending for any such complaint from the police station, not even a copy of any such complaint has been filed. Therefore the case of the accused that he gave a complaint to the police cannot be believed. That being the case, the private complaint has been given only after along lapse of time, that is about 3 months after the occurrence. This circumstance itself would show that the case of the complainant is difficult to believe. The Court below has found lot of contradictions between what is stated in the complaint and the evidence of the complainant, and between the evidence of the complainant and the evidence of other witnesses in the case.