This article is written by Adv. Prashant Dhadve, practicing advocate at High Court as well District and Session Court, Nagpur.
It is responsibility of every public servant to maintain peace and order in the society. In order to do that public servants can promulgate orders. If someone disobey such order, than he would be liable for prosecution in accordance with provision of Section 188 of Indian Penal Code. In the recent scenario, due to COVID-19 pandemic, government had promulgated order of LOCKDOWN and whoever disobeyed order, consequently faced legal action. Now question arises, whether police has authority to file FIR under Section 188 of Indian Penal Code and arrest such person when provision of Section 195(1)(a) of Criminal Procedure Code makes it clear that a Court is incompetent to take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code without a written complaint of the concerned public servant.
Interpretation of Section 188 of Indian Penal Code (IPC) and Section 195(1)(a) of Criminal Procedure Code (CrPC)
Section 188 of Indian Penal Code provides for punishment for disobeying order promulgated by Public Servant. According to Schedule 1st of CrPC, offence under section 188 of Indian Penal Code is cognizable. Definition for Cognizable offence is given under Section 2(c) of Criminal Procedure Code Cognizable offence means offences in which police officer may arrest a person without warrant, following procedure given, for arrest.
In landmark cases of Lalita Kumari V. State of Uttar Pradesh and Sandeep Shukla V. State, Hon’ble Courts held that, police is duty bound to register FIR and investigate matter if the information received by them discloses commission of cognizable offence. As the classification of offence under Section 188 of Indian Penal Code is Cognizable and bailable, it is mandatory on Police to file FIR and investigate the case accordingly.
Section 195(1)(a) of Criminal Procedure Code provides procedure for prosecution of contempt of lawful authority of public servant. According to this section, court shall not take cognizance of any offence punishable under Sections 172 to 188 of Indian Penal Code without a written complaint of the concerned public servant. The term Complaint is defined under Section 2(d) of Criminal Procedure Code as any allegation made orally or in writing to magistrate to take action against person who has committed offence and it does not include police report.
The regular procedure for criminal cases is to register an FIR under Section 154 of Criminal Procedure Code, arrest the accused without a warrant and investigation by the police. Eventually, Police need to submit the Final Report (Charge-sheet) on completion of investigation under Section 173 of Criminal Procedure Code On the basis of such report, the Court takes cognizance and trial begins.
Now, the conflict is that if the offence has been committed punishable under section 188 of Indian Penal Code, then police shall register FIR accordingly, as it is cognizable offence and follow regular procedure afterwards. However, in accordance with Section 195(1)(a), court is incompetent to take cognizance of offence committed under Section 188 of Indian Penal Code unless a written complaint of the concerned public servant has been given to the court. It means usual procedure of filing FIR, investigation and final report becomes useless.
Also, conflict arose in between Section 154 of Criminal Procedure Code and Section 195 of Criminal Procedure Code As per Section 154, it is mandatory for police to reduce any information as to commission of cognizable offence in writing i.e. to register FIR. Also it is clearly guided by Hon’ble Supreme Court in Lalita Kumari case. However, Section 195 of Criminal Procedure Code states that no court shall take cognizance of case under Section 188 of Indian Penal Code even though it is classified as cognizable offence. Section 154 and 195 of Criminal Procedure Code are apposite to each other and rather contrary.
Whether Section 195 Criminal Procedure Code Bar Registration of FIR and Investigation of offences under Section 188 of Indian Penal code?
Criminal Procedure Code is procedural law whereas Indian Penal Code is substantive law which provides for offence and punishment. Primarily, if we read Section 195 of Criminal Procedure Code, then we will find nothing which will deter police from filing an FIR for offence punishable under Section 188 of IPC. It just making courts incompetent to take cognizance of the case. Filing of FIR and cognizance of the case are two different things. When Criminal Procedure Code itself provides that offence is cognizable, then it would become mandate to register FIR and do further investigation in the matter. Now, question of cognizance come in picture, when police will submit final report or upon receiving a complaint of facts which constitutes offence, in the court in accordance with Section 190 of Criminal Procedure Code. So in my opinion, if court cannot take cognizance of offence under Section 188 of Indian penal code in accordance with Section 195 of Criminal Procedure Code, then it does not mean police cannot file FIR and investigate matter.
There are several judgments giving different views on this issue:
In State of Punjab V. Raj Singh, the Hon’ble Supreme Court held that, Statutory power of the police to investigate case punishable under Section 188 of Indian Penal Code cannot be controlled by Section 195 of Criminal Procedure Code Court further stated that after completion of investigation police can file charge-sheet in the court. Even though Court is incompetent to take cognizance of the case according to Section 195 of CrPC, it can file complaint on the basis of FIR filed by the aggrieved private party.
In M. Narayandas V. State of Karnataka, Hon’ble Supreme Court observed that Sections 195 and 340 of Criminal Procedure Code do not control the power of the police to investigate under Code.
From abovementioned judgments it is clear that, it is mandatory for police to register FIR for offence under Section 188 of Indian Penal Code and nothing in the Section 195 of Criminal Procedure Code prevents or takes away power of police to investigate in offences as contemplated under Section 195 of Criminal Procedure Code.
Perhaps, recently Madras and Bombay High court put different views regarding this issue.
Recently, the Madras High Court had quashed an FIR registered against an Anti CAA protestor for offence punishable under Section 188 Indian Penal Code and relied upon judgment in Jeevandham case.
In Jeevandham v. State, Hon’ble High Court has given following guidelines.
- A police officer cannot register an FIR for any of the offences punishable under Section 172 to 188 of Indian Penal Code.
- A police officer can arrest a person when a cognizable offence under Section 188 of Indian Penal Code is committed in his presence or where arrest is required, to prevent such person from committing an offence under Section 188 of Indian Penal Code.
- The role of the police officer will be limited only to the preventive action and immediately thereafter, he has to inform about the same to the concerned public servant, to enable him to give a complaint in writing to court for taking further action.
- No judicial court would take cognizance of Final report in respect of such offence.
- Further, court directed Director General of Police of Chennai and Inspector General of various zones to immediately formulate process which would empower concerned public servants to deal with offence under Section 188 of Indian Penal Code to ensure no delay in filling written complaint by such public servant in according to Section 195(1)(a) of Criminal Procedure Code.
Bombay High Court in Shrinath Giram v. State of Maharashtra, had taken similar view. The Court held that no Police officer can file FIR for offence punishable under Section 188 of Indian Penal Code and it is barred under Section 195 of Criminal Procedure Code
Also in the case Apurva Ghiya v. State of Chattisgarh, the Hon’ble High Court has held that the police cannot register an FIR for the offence under Section 188 of Indian Penal Code and entire prosecution would be rendered Void-ab-initio if the procedure given under Section 195 of Criminal Procedure Code is not complied with. The Court further observed that, merely because the offence under Section 188 of the Indian Penal Code is cognizable, does not authorise the police officer to register FIR because the registration of FIR would necessarily result in submission of police report under Section 173(8) of the Code which is specifically barred by Section 195(1)(a) read with Section 2(d) of the Code. The definition of “complaint” contained in Section 2(d) of the Code makes it clear that complaint does not include a police report.
These are the different views of courts on this issue. Perhaps judgement given by Hon’ble Madras High court in Jeevandham case, is clearly per-incuriam to the decisions in Raj Singh and M. Narayandas case. Doctrine of per incuriam means judgement given in ignorance of earlier binding precedents. It is bad in eye of law.
The conflict will arise if we follow default or usual procedure of cognizable offence, while dealing with an offence punishable under Section 188 of Indian Penal Code, due to bar created by Section 195(1)(a) of Criminal Procedure Code To deal with this conflict we could stray a little bit in usual procedure.
When offence punishable under Section 188 is committed and police received information regarding such offence, then police will register FIR, investigate into the matter and prepare final report (Charge-sheet) in usual manner. But, along with final report, public servant shall give a complaint in writing to the court. So, court can take cognizance of the offence and requisite of Section 195 of CrPC would get complied. Perhaps Madras High court was not accepting this contention in Jeevandham Case.
In the recent situation, when the courts are not fully functional, it is not possible for the concerned Public Servant to approach the court. At this situation, Public servant may give informal complaint to police who shall register FIR, investigate matter and prepare informal report of the matter. And, when courts will be fully functional and it will be possible to approach the court, the Public Servant can give formal complaint in writing in accordance to Section 195 of Criminal Procedure Code along with informal investigation report. If there is any irregularity in report, than court is empowered to reject findings and may order fresh investigation.
In 1949, while advocating a new approach towards Interpretation of Statues, Lord Denning MR in Seaford Court Estates Ltd. V. Asher said, “A judge should ask himself the question: if the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must alter the material of which it is woven, but he can and should iron out the creases”.
Under Section 154 of Criminal Procedure Code, it is mandatory for Police to file FIR if they received information which discloses commission of cognizable offence and on other side, Section 195 of Code, deters police from filing FIR for offence punishable under Section 188 of Indian Penal Code even though offence is classified as cognizable. Therefore, there should always be harmonious interpretation of statue if provisions of law are in conflict with each other. If we follow above mentioned solution then both conflicting provisions under Section 188 of Indian Penal Code and Section 195 of Criminal Procedure Code can operate together. Whenever such conflict arises in between two different provisions of law then it becomes fundamentally important to ding the intention of the legislature, especially while interpreting the procedural laws.
In the end, it is open to Courts in the words of Lord Denning to decide which approach is better towards interpretation, whether The Old Grammatical Approach or The Modern Purposive Approach.
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