Lockdown violation case: 'Cops cannot prosecute under Sec 188’

CHENNAI: The Madras High Court had quashed an FIR filed against a man for allegedly violating the Covid prohibitory orders under Section 144 of the CrPC in June 2020 on the ground that the police have no power to initiate prosecution under Section 188 of the IPC.

Justice N Sathish Kumar made this ruling on allowing a criminal original petition filed by R Nandakumar of Chengalpattu district.

The petitioner sought direction to quash the FIR filed against him under Section 188 of IPC - disobedience to order duly promulgated by a public servant.

Leonard Arul Joseph Selvam, government advocate said that during the pandemic, the accused had violated the prohibitory order under Section 144 of CrPC, thereby, the FIR has been registered against him for the offence under Section 188 of IPC.

However, Justice Kumar held that police have no power to initiate prosecution under Section 188 of IPC.

“The offence under section 188 of IPC can be taken cognizance only on the complaint in writing by a public servant and there is a clear bar under section 195 of CrPC for the Court to take cognizance of the offense. Under these circumstances, continuing the proceedings against the petitioners is a futile exercise, ” the judge added.

The court noted that the mere launching of an FIR by the prosecution itself is not sufficient to reach the conclusion that offences are made out. “The materials collected by the prosecution do not support proving the case and continuing the prosecution on shaky or without any materials is a clear abuse of process of law, ” the judge held and quashed the FIR.