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This article is written by Aastha Verma, pursuing B.A.LL.B from Kalinga University, Raipur, Chhattisgarh. This article is concerned with Section 188 of IPC and discusses whether police can lodge FIR under Section 188 or not. 

Introduction

The Central and the State Government has taken various measures to stop the spreading of novel coronavirus which includes the enforcement of an unprecedented nationwide lockdown that has affected the lives and business of the people.  Because lockdowns came into force the statutes like the Disaster Management Act, 2005 (DMA),  Epidemic Diseases Act, 1897 (EDA), and certain provisions of the Indian Penal Code, 1860 (IPC) have become a part of lawyer’s everyday language.

However, most orders/directives/notifications issued by governments, whether state or federal, have included Section 188 of the Indian Penal Code. This section is invoked when there is non-compliance with the guidelines which have been mentioned in the orders. Therefore, it becomes important to understand this provision.  

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Government imposed restrictions in the country

The coronavirus was the first to emerge in China’s Wuhan in 2019, and slowly it affected various countries and their territory. To stop the virus from spreading the government imposes measures to reduce the public gathering. Offices, schools, conferences, sports, marriages, etc were stopped. The World Health Organization (WHO) asked the government to take action to prevent the transmission of the disease. In India, on 22nd March 2020 the center announced the Janta curfew for the first time from 7 am to 9 pm and the condition is that everybody has to stay at their home only. Even after that, the number of cases increased rapidly, so the center announced the nationwide lockdown from 25th March 2020, and wearing masks and maintaining social distance is the most important step while going out of home for basic necessities. Whoever is disobeying the order shall be punished under Section 188 of IPC. The police have the power to register a First Information Report (FIR) if he knows that someone has violated the order promulgated by the public servant and police can investigate the offence but the court cannot take cognizance of the case unless there is a written complaint filed by the concerned public servant. Further magistrate court cannot direct the police to initiate the investigation as it has no negative power to direct stoppage of investigation of cognizable offence.

The question arises of the FIRs that have been registered all over the country under Section 188, IPC. The cases are broadly divided into two categories –

  1. Cases in which FIR is registered under Section 188 and also under Section 269 and 270 of IPC. 
  2. Cases that are registered only under Section 188 of IPC. 

In the first category, the police can omit the investigation under Section 188 of IPC before filing the charge sheet incompetent court but the charge sheet can be filed for the other offences. In the second category, where FIR has been registered only under Section 188 of IPC the police have to drop the case and file a complaint in the competent court. But a practical difficulty the administrative authority is facing now is that most of the courts have been shut down during the lockdown and it is getting difficult to take a written complaint from the concerned public servant if there is a violation of Section 188 of IPC.     

In May 2020, the Supreme Court refused to entertain a plea seeking for quashing of various FIRs registered under Section 154 of CrPC, 1973 and of other petty offences related to not following norms of the COVID-19 pandemic.   

When the court is not functioning properly the public servant can’t submit the complaint in writing. The public servant gives an informal complaint. When it becomes practically possible the Section 195 of CrPC will be applicable along with the findings of the informal investigation.         

Section 188 of the Indian Penal Code

Section 188 of IPC comes under Chapter X “of Contempts of the Lawful Authority of Public Servants” which reads disobedience to order duly promulgated by a public servant. The existence of the order promulgated by the public servant who is lawfully empowered to promulgate and the accused know about the same and disobeys the order which has caused obstruction, annoyance, or injury to any person lawfully employed or danger to human life, health, and safety. Whoever knows that order given by the public servant lawfully directs to abstain from doing disobey such direction and causes obstruction, annoyance, injury, or risk to any person lawfully employed shall be punished with simple imprisonment which may extend to one month or fine up to Rs. 200/- or both. 

If such disobedience causes danger to human life, health, or safety or causes riot or affray shall be punished with imprisonment of either description for a term which may extend to six months or fine up to Rs. 1000/- or both. According to the first schedule of the Criminal Procedure Code (CrPC), 1973 the offences are cognizable, bailable, and can be tried by any magistrate. Also, as per Section 320 of the Code of Criminal procedure, 1973 Section 188 is a non-compoundable offence. 

To be punishable under Section 188, the order should be given by a public servant for the public purpose. There must be evidence that the accused knows the order with the disobedience of which he is charged.  An order made in a civil suit between two parties does not fall under this section. Mens Rea or a guilty mind is not an essential requirement for the commission of the offence.   

The procedural scheme under Section 188 of the Indian Penal Code

  • The police have the power to arrest the person without a warrant also police can register an FIR under Section 154 of the CrPC, 1973, and can initiate the investigation into the offence.  
  • After the completion of the investigation police can proceed to file a police report under Section 173 of the CrPC, 1973 based on which the court initiates the trial and takes cognizance of the offence.  
  • By applying Section 195(1)(a) of the CrPC, 1973 which provides that the court can take cognizance of the offence punishable under Section 172 to 188 of the IPC only when there is a written complaint of the public servant concerned or his superior.
  • It also bars the court from taking cognizance of the case on the basis of the final report by the police which creates a twist in the enforcement of Section 188 of IPC. This is the travesty of the judicial process. 

In the case of Jeevanandham v. State, 2018  the Madras High Court held that it is mandatory to follow the procedure of Section 195 of CrPC, 1973 to prosecute an accused of an offence under Section 188 of IPC otherwise such action would be rendered as void ab initio. There must be a complaint by the public servant whose lawful order has not been complied with. The power of police officers is limited to preventive action and immediately he has to inform the concerned public servant to enable him to proceed with the complaint before the Court.    

In the case of Jagdish and others v, the State of Haryana, 2015 the Punjab and Haryana High Court held that as per Section 195(1) of the CrPC, 1973 no FIR can be registered by the police unless there is a written complaint made by the public servant concerned and if made then the police report will be quashed for the offence under Section 188 of IPC. 

Measures which police can take-   

  1. Police have to prevent such disobedience of the order promulgated by the public servant.
  2. As per Section 41 of the CrPC, 1973 an accused person can be taken to the custody of the police. 
  3. The procedure has to be followed to prosecute the accused.     

In the case of State of Punjab v. Raj Singh, 1998  the Supreme Court held that we are unable to sustain the impugned order of the High Court for quashing the FIR lodged against the respondent for the commission of an offence under Section 467 and 468 of the IPC on the ground that Section 195(1)(b) of CrPC, 1973 prohibits the investigation of the offence by the police. Section 185 manifests that it comes into operation when the court takes cognizance of the case under Section 190 of the CrPC, 1973. The statutory power of police to investigate under the code is not controlled by Section 195 of CrPC. The court may file a complaint about the offence on the basis of FIR and the material collected during the investigation but should follow the procedure laid down in Section 340 of CrPC, 1973.     

Circumstances under which Section 188 can be invoked

To be punishable under Section 188, the order has to be for a public purpose by public functionaries. An order made under a civil suit between two people does not cover under this Section. For example – an order commanding an assembly of five or more members to disperse will fall under Section 188 of IPC. There must be evidence that the accused has knowledge about the order in which he has disobedience. Mere proof of general notification and promulgating the order does not constitute offence but it must show the offence that disobedience has or tends to various circumstances.  

COVID -19, Criminal law and Section 188 of IPC 

The government for saving the lives of people has taken various measures during the pandemic coronavirus and these cumulative measures are known as lockdown. However, some people are not following the rules and regulations made by the government which prompts the police to take action against the various provisions of law. Section 188 of IPC is one of them. Police are regularly registering FIRs and investigating upon the same as the offence under Section 188 is cognizable where police can arrest a person without any warrant. Section 154 of CrPC obligates the officer in charge of the police station to reduce the information into writing and make the sign of the informant. Section 195 of CrPC says that the court can take cognizance only after the complaint is in writing by the public servant which creates confusion between the two. 

Section 195 creates a barrier to the court for taking cognizance of the case. It does not talk about the power of the police officer. The applicability of Section 195 of CrPC, 1973 can be invoked before the stage of cognizance but it cannot infringe the power of police during the investigation. This section bars the Magistrate’s power to take cognizance of the case under Section 190 of CrPC, 1973. Also, when the magistrate is taking cognizance of the case under Section 190 of CrPC he must examine the facts of the complaint and should determine his power before taking cognizance. The police have to inform the accused about the offence to the competent public servant whose order has been contravened by the accused and give a police report for filing the complaint before the court. 

Thus the police officer, as well as the prosecution agency, are bound to observe the correct procedure under Section 195 of CrPC and Section 188 of IPC. Also, the written complaint of the District Magistrate (DM) or its superior officer annexed with a police report should be submitted for taking cognizance of the offence before the court.                   

Conclusion

It is the responsibility of every citizen to maintain peace and follow the rules and regulations of society. The public servant promulgates orders and whoever disobeys such orders shall be punished according to Section 188 of IPC. Coronavirus was increasing rapidly so to stop spreading it the government promulgated the order of lockdown and whoever disobeyed the order had to face legal consequences. The offence under Section 188 is cognizable where the officer in charge of the police station has to file an FIR under Section 154 of CrPC and on the other hand Section 195 of CrPC prohibits the police from filing FIR for an offence punishable under Section 188 of IPC. Whenever such conflict arises between two provisions of law then it’s important to take notice of the intention of the legislature while interpreting the procedural law. The intention of the legislature in Section 195 of CrPC, 1973 is to bar the court from taking cognizance and not bar registration of an FIR. Cognizance of the case can be taken at the time of filing of the charge sheet the statutory procedure specified under the provision compiled with it. The court has to decide which approach towards interpretation is better, the old grammatical approach or the modern purposive approach.             

Reference 

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