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While quashing a criminal case against an Anti-CAA protestor, the Madras High Court proceeded to emphasize that the police can't without anyone else register a FIR for offenses falling under Section 188 of the Indian Penal Code (Shamsul Huda Bakavi v. State and Ors).
The case concerned an activist who was captured on claims that he had challenged the Citizenship (Amendment) Act, 2019 (CAA) on open road without authorization last January. A FIR was lodged against him, refering to charges under Sections 143 and 188 of the Indian Penal Code (IPC).
Section 188, IPC manages the offense of disobeying rules declared by a public servant, while Section 143, IPC manages punishment for the offense of taking part in an unlawful gathering.
Appropriately, Section 195(1)(a) of the Code of Criminal Procedure (CrPC) bars courts from taking discernment of an offense under Sections 172 to 188, IPC except if there is a written copy of a complaint from the public servant concerned or someone to who he is authoritatively subordinate to.
The Court additionally alluded to the instances of Mahaboob Basha v. Sambanda Reddiar and ors and Jeevanandham and others v. State rep. by the Inspector of Police, Karur District. All things considered, the Court had explained that "A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC."
Other guidelines given by the Court are:
A Police Officer under Section 41, CrPC may arrest when a cognizable crime under Section 188 IPC has been committed or where such activity is required, to keep such individual from committing an offense under Section 188 of IPC.
The job of the Police Officer will be limited uniquely to the preventive activity of arrest (under Section 41, CrPC) and he needs to inform the same to the public servant concerned as soon as possible.
Such public servant may then give a complaint in a written form before the jurisdictional Magistrate, who will take cognizance of the offence on being prima facie satisfied with the ingredients of Section 188 of IPC.
In the instant case, the Court saw that the police had enlisted the FIR referring to Section 188, IPC against the anti-CAA protestor without being competent to do so. Further, the Judge didn't observe anything on record to show that the petitioner had participated in an unlawful assembly.
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