This article is written by Vandana Kumari, a law graduate from Rizvi Law College, Mumbai University. This article contains a brief overview of Section 188 of the Indian Penal Code, 1860, and vastly concerns itself with the punishment covered by it along with the relevant case laws.
This article has been published by Sneha Mahawar.
Table of Contents
During the infamous COVID-19 lockdown, you must have heard numerous cases about people being arrested or fined for violating lockdown guidelines. Ever since the nationwide lockdown came into force on March 25, 2020, a staggering number of over 1.04 lakh cases have been registered in the state of Maharashtra for violation of COVID-19 guidelines, which led to 19,838 arrests and the collection of approximately Rs. 3.97 crores in fines. This was the data up until May 2020. If this was the story of one state in just two months of the lockdown, we can imagine what the figure must have been for the whole nation throughout the pandemic. Returning to the topic, the question here is under what law were these arrests made? What is the prescribed punishment under that law? This article will directly delve into the posed question.
Section 188 of the Indian Penal Code, 1860, finds its place in Chapter X of the Code, which deals with offences related to contempt of the lawful authority of public servants. The public servants are entrusted with the authority to maintain law and order within the society. Thus, it becomes crucial for the law of the land to provide the necessary reinforcement for their authority to stand firm. Section 188 of the Code serves this purpose. It provides punishment for displaying disobedience to an order duly promulgated by a public servant in the public interest. Here are a few examples of orders made under Section 188 of the IPC:
- An order commanding an assembly of five or more persons to disperse;
- An order directing a religious procession to not pass down a certain street; or
- An order to maintain the status quo of the disputed property
What crime is defined under Section 188 of the IPC
Section 188 of the IPC criminalises any deliberate disobedience of an order that is duly promulgated by a public servant empowered by law to do so. Such an order can either direct any individual or any group to abstain from a certain act or to take certain action with certain property in his possession or under his management. For instance, avoidance of service of summons, non-appearance or non-attendance in response to an order, non-compliance with orders made for maintaining public order and peace, etc.
According to this Section, the actus reus, or wrongful act, is the disobedience of an order. However, mere disobedience does not constitute an offence in itself. Such disobedience, in order to be punishable, should have caused or have the potential to cause obstruction, annoyance, or injury, or the risk of obstruction or annoyance, to any lawfully employed person. It will also be punishable if such disobedience causes or tends to cause danger to human life, health, or safety, or causes or tends to cause a riot or affray.
Furthermore, to constitute mens rea for this offence, mere knowledge of the order is sufficient. No person who does not know about the promulgation of the order can be punished for its disobedience. The explanation attached to the Section also describes the same. It clarifies that the offender need not have the intention to produce harm or contemplate his disobedience as likely to produce harm. It is sufficient that he knows about the order that he disobeys and that his action will produce, or is likely to produce, harm.
Nature of offence under section 188 IPC
According to the First Schedule of the Criminal Procedure Code (CrPC), 1973, offences under Section 188 are cognizable, bailable, and can be tried by any magistrate, which means a charge under Section 188 would necessitate arrest and a person charged under this Section can be released on bail.
Essentials of crime under Section 188 IPC
A thorough perusal of the Section leads to the following essentials of this offence
There must be an order promulgated by a public servant
The expression ‘promulgation’ has not been defined anywhere in the Code, and it does not prescribe any particular mode for promulgation. The literal meaning, however, is “to make known by public declaration, to publish, or to proclaim.” This has been a point of extensive discussion in several case laws, namely, State v. Sm. Tugla, (1955), Kothakota Papayya and Ors. v. State, (1975), Bhagirathi Srichandan and ANr. v. Dmaodar@ Dama Baral and Ors, (1986) and many more. In all these judgments, it was observed that promulgation of an order meant publication of that order publicly and openly. It can be by the beat of drums, notification in the Gazette, or by openly reading out the order in public. Pronouncement of an order in open court amounts to a valid and sufficient promulgation for the concerned parties in the proceedings. Similarly, the Bombay High Court in Emperor v. Raghunath Vinayak, (1925), dealt with a case wherein a sub-inspector of police orally ordered to stop music before a mosque and it was disobeyed. The accused, when arrested, contended that there must be a written or printed order before it could be held to have been promulgated. Their contention was rejected, and it was held that the word “promulgate” indicates that there must be some form of publication. But, it is not necessary that the publications should be through newspapers, posters or leaflets. When an order is pronounced in open court, it is made public and nothing more needs to be done to publish it.
In the case of a gathering, a prohibition order under Section 144 of the CrPC, must be communicated to the gathering. It is only after the gathering fails to comply then it can be termed unlawful. Since there was no substantial evidence to show that the order was communicated, the accused was acquitted of all charges under Section 188 read with 34 IPC. This was recently observed by the Delhi District Court in State v. Rajendra Pal Gautam and Ors. (2022), famously known as the AAP party fuel price-hike protest case.
The public servant must be lawfully empowered to promulgate such order
Generally, the orders contemplated under Section 188 of the IPC are those made by public functionaries for public purposes. The source of this power is mainly derived from Sections 144 and Section 145 of the CrPC.
Such an order directed the accused to abstain from a certain act, or to take certain order with certain property in his possession or management
The orders under Section 188 are made to maintain public tranquillity, public health, safety, or convenience. It can be either directed at the public at large or at any individual who poses threat to law and order.
The accused had knowledge of the order
The question of whether the accused had knowledge of the order is a question of fact. It is the duty of the prosecution to prove by positive evidence that the accused disobeyed the orders despite having knowledge of their existence. A mere proof of a general notification promulgating the order does not satisfy the requirement of Section 188 of the IPC. This was observed by the Calcutta High Court in the case of Ram Das Singh and Ors. v. Emperor (1926).
Recently, in Prasad Kori v. State of M.P. (2023), the Madhya Pradesh High Court observed the same. In this case, a bank (the applicant in this case), which was entitled to recover money from a chronic defaulter (the complainant), took possession of his vehicle with due compliance with the law. The complainant got an FIR registered under Section 188 and Section 379 of the IPC. He contended that the bank did not comply with the order passed by the collector regarding the takeover of respective vehicles. But he failed to put anything on record to suggest that the order was served on the applicant or that they were aware of the contents of the order. Thus, the Court opined that the charge under Section 188 is not sustainable. With respect to theft, as it is a compoundable offence, the parties agreed to settle the matter, and the proceedings were quashed.
He must have disobeyed the order
Though mere disobedience is not sufficient to convict a person under Section 188, it nonetheless initiates the action. For instance, in the aftermath of the Hathras Gang rape incident, Section 144 of the CrPC was implemented in the state of Uttar Pradesh. The Congress leaders, Rahul Gandhi and Priyanaka Gandhi Wadra, were detained by the UP police while they were on their way to visit the victim’s family. When asked, the police officials informed them that they were arrested under Section 188 for disobeying the orders under Section 144.
His disobedience caused or tended to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or
The words “lawfully employed” assume vital importance in this regard, and cannot be overlooked. The act of disobedience has to be such that it causes or tends to cause obstruction, annoyance, or injury to a person “lawfully employed” and not just to any person, be it a private party or the general public, in whose favour or for whose protection, an order is promulgated by the public servant.
Further, the annoyance has to be proven as a fact. The mere mental annoyance of the concerned authorities is not enough to constitute an offence under this Section.
Such disobedience caused or tended to cause danger to human life, health or safety, or a riot or affray
A mere act of disobedience is not the actus reus under this Section. It must be shown that disobedience has or tends to have the aforementioned consequences. To illustrate it, there is a judgment of the Calcutta High Court in the case of Mt. Lachmi Devi and Ors. v. Emperor (1930) on similar lines. The facts of the case were that a group of six women were booked under Section 188 for moving along the street singing a Bhajan song without taking prior permission from the Commissioner of Police to take out a procession. They took the position that they were not engaged in any political manifestation or anything harmful but were merely singing songs. There was no evidence on record to suggest that the singing or their arrest caused or tended to cause any riot or affray. They cannot be convicted based on the general assumption that any arrest in the situation prevalent in the area may lead to a riot or affray. Thus, the Calcutta High Court set aside the order of the Presidency Magistrate and acquitted all the accused.
Not having knowledge that disobedience may cause harm cannot be a defence
The Madras High Court in Jeevanandham v. State (2018), by way of illustration, explained that if in a town where no order was passed for chaining up dogs, A lets his dog run about loose, A will not be liable to punishment for any mischief which the animal may cause unless it can be shown that A knew the animal to be dangerous. However, if it is proved that A was aware of an order that talked about confining dogs and yet he did not do so, he cannot use this as a defence. Further, even if he had reasons to believe that his dog was harmless, that will not act as a defence in court. So, if the court thinks that A’s disobedience has caused harm or risk, A will be liable to receive punishment. On the other hand, if the court believes that there was no danger and that the local order was an inappropriate one, A will not be liable to punishment.
An order is promulgated by a public servant lawfully empowered to promulgate such an order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order and thereby causes the danger of rioting. It can be said that ‘A’ has committed the offence defined in this Section.
What are the procedures followed under Section 188 of the IPC
Section 188 IPC is a cognizable and bailable offence. This implies that the police have the power under Section 154 of the CrPC to register an FIR, investigate the matter, and file a final report under Section 173(2) of the CrPC before the concerned magistrate.
Ideally, in such situations, the magistrate is empowered under Section 190 of the CrPC to take cognizance of any offence upon receiving a complaint of facts that constitute such an offence, or upon a police report of such facts, or further, upon information received from any person other than the police officer.
However, Section 195 of the CrPC carves out an exception for cases falling under Section 188 of the IPC. It prohibits the magistrate from taking cognizance of the police reports. Section 195(a)(i) bars the court from taking cognizance of any offence punishable under Section 188 IPC or the abetment or attempt to commit the same, unless there is a written complaint by the public servant concerned for contempt of his lawful order.
The legislative intent behind Section 195 was discussed in the leading case of C. Muniappan & Ors v. State of Tamil Nadu (2010). In this case, the Supreme Court elucidated that this provision was made to protect an individual from facing any criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition. In addition, it was also to save the time of the criminal courts from being wasted by endless prosecutions.
The nature of the bar under Section 195 was clarified by the Supreme Court in the landmark case of State of Punjab v. Raj Singh and Anr. (1998). The Apex Court observed that a plain reading of Section 195 makes it clear that the bar comes into operation at the stage of taking cognizance, and it has nothing to do with the statutory power of the police to investigate an FIR that discloses a cognizable offence. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC.
How FIRs are registered for violating Section 188 of the IPC
As discussed above, it is settled that the restraint of Section 195 of the CrPC applies to the magistrate in taking cognizance and not to the police in recording the FIR and conducting an investigation. Therefore, there is no bar to the police registering an FIR for the offence committed under Section 188.
However, once the investigation is complete, the public servant whose order has been disobeyed has to make a written complaint, which becomes part of the final report. The filing of this complaint is a prerequisite for the magistrate to proceed. The magistrate, on being satisfied that it attracts the ingredients of Section 188, shall take cognizance and proceed further.
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 the CrPC to prosecute an accused of an offence under Section 188; otherwise, such action would be rendered 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 he has to immediately inform the concerned public servant to enable him to proceed with the complaint before the Court.
Punishment for crime under Section 188 IPC
The punishment under Section 188 varies with the severity of the consequences of the act:
- If the disobedience of the order causes or tends to cause obstruction or annoyance or injury, or risk of the same, to a person lawfully employed, the offender will be subjected to a simple imprisonment of up to one month or a fine up to Rs. 200, or both;
- If such disobedience is of a greater nature, so as to cause or tend to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, the offender shall be punished with imprisonment of either description for a term which may extend to six months, or with fine up to Rs. 1000, or both.
The punishment may seem insufficient, but it is interesting to note that when an accused is charged under this Section, he is often charged with the simultaneous offence he committed. In Ram Samujh and Anr. v. State (1966), the Allahabad High Court upheld the conviction given by the Session Judge under Sections 188 and 454 of the IPC (lurking house-trespass or house-breaking in order to commit an offence punishable with imprisonment). The facts of the case were that after the High Court passed a preliminary order for the attachment of the house under Section 145 of the CrPC, the police locked the house and handed over the key to the owner. The accused broke open the lock and took forcible possession of the house. It was shown that the promulgation of the order was known to the accused.
In Khoshi Mahton and Ors. v. The State (1964), there was a proceeding under Section 144 of the CrPC between two parties, and they were restrained from going on a particular piece of land where there were standing paddy crops. One of the parties cut and removed the crops. The magistrate held that the action amounted to disobedience and that it tended to cause a riot or affray, and he sentenced the accused to undergo rigorous imprisonment for 2 months and to pay Rs. 55 as a fine. In default of payment of the fine, they will have to undergo further rigorous imprisonment for 15 days. They filed an appeal before the session judge. He was of the opinion that the disobedience did not risk any riot or affray, and he reduced the sentence to simple imprisonment up to one month, maintaining the fine. When the case came before the Patna High Court, it observed that such acts of disobedience created an apprehension of a breach of peace, and it is sufficient to prove that the disobedience tended to cause a riot or affray. It held that the finding of the session judge was wrong and dismissed the application.
There have been many cases along similar lines. The key factor in deciding these cases rests upon three factors, namely-
- the promulgation of the order;
- the accused’s knowledge and disobedience; and lastly,
- the happening of the mentioned consequences under Section.
In addition to this, it is noteworthy to mention that the punishment under this Section finds its place in the Epidemic Diseases Act, 1897, as well. It is an Act to provide for better prevention of the spread of dangerous epidemic diseases. Section 3 of the Act states that any person who disobeys a regulation or order made under this Section will be deemed to have committed an offence punishable under Section 188 of the IPC. This Section was widely used throughout the nation during the period of COVID-19 lockdown.
Important case laws
Municipal Council, Ratlam v. Shri Vardhichand and Ors (1980)
Background of the case: The Municipal Council was ordered by a magistrate under Section 133 of the CrPC to provide the amenities to the people living in the locality and abate the nuisance, close certain pits, repair drains, remove dirt, and construct public bathrooms within 6 months. The case came before the Supreme Court through a Special Leave petition by the corporation.
Issue: Whether the court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis?
Arguments by the council: They pressed the issue of a lack of funds.
Judgment of the Court: The Supreme Court held that whenever there is a public nuisance, it is the duty of the magistrate to remove the nuisance within a time to be fixed in the order. This power is derived from Section 133 of the CrPC. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public proceeding. Failure to comply with the direction will be met with a punishment contemplated by Section 188 IPC. In this case, the consequence of the disobedience is closely related to public nuisance, as noncompliance with the magistrate’s order would lead to health and environmental issues.
The Court also observed that lack of funds would not stand as an excuse against the ineffable “human rights” of people. The municipality was expected to properly utilise the funds that they received from the state government for the maintenance of public areas.
The Supreme Court held the municipal council, through its officers, liable under Section 188 for disobedience and non-compliance with an order passed by a magistrate under Section 133 of the CrPC.
Om Prakash and Anr. v. State (Govt. of NCT of Delhi) (2019)
Background of the case: After the assassination of Prime Minister Indira Gandhi, violent anti-Sikh riots erupted in Delhi. In order to curb that, a prohibitory order was passed on October 31, 1984, in Delhi, banning the assembly of more than five people and the carrying of arms till further orders. On November 1, 1984, at 6 p.m., an order under Section 144 of the CrPC was issued by the Police Commissioner imposing a ban on anyone in Delhi coming outdoors without the permit granted by the Deputy Commissioner of Police of the concerned district, until further orders. On November 2, 1984, it was intimated to the police station on the telephone that a massacre was going on in the area. When the police reached the spot, they found a few houses on fire.
According to the statements of the eyewitness, Vidya Wati, a large crowd of non-Sikhs came to the area, and they stabbed her husband, Thakur Singh, three times and thereafter set him on fire. They also set their three-wheeled scooter on fire. She alleged that the appellants, Om Prakash and Vedi, the younger brother of Om Prakash, had murdered her husband.
Ratio decidendi: Despite the prohibitory orders in force, the accused flagrantly disobeyed the orders. They caused riots as well as a grave danger to the health and safety of people in the community. This fulfills all the ingredients of an offence punishable under Section 188.
Judgment of the Court: The Delhi High Court upheld the sentence awarded by the trial court to the appellants for an offence punishable under Section 302 (punishment for murder) read with Section 149 of the IPC (every member of unlawful assembly guilty of offence committed in prosecution of common object). And for the offence punishable under Section 147 of the IPC, the Court sentenced the appellants to undergo rigorous imprisonment for a period of two years, respectively. Further, for the offence punishable under Section 188 IPC, the appellants were sentenced to undergo rigorous imprisonment for a period of six months, respectively. The Court held that all the sentences would run concurrently.
Not long ago, the Delhi High Court, in the case of Decathlon Sports India Pvt. Ltd. v. State of NCT of Delhi (2022), flagged the necessity of quick disposal of cases under the Disaster Management Act, 2005, and Section 188 of the IPC as well. This case was related to the opening of the showroom past the deadline during the lockdown in 2021, thereby violating the existing orders. The point here is that the maximum period under Section 188 is up to six months, but the case in question was dragged out for over seven months without any closure.
It is unfathomable as to why the cases under Section 188 cannot be disposed of in a more purposeful manner. The intention of the legislature behind Section 188 is noteworthy, but the procedural mechanism under Section 195 of the CrPC makes it sluggish. According to Section 195(1)(a) of the CrPC, the court is barred from taking cognizance of offences under Section 188 except upon a written complaint by the public servant concerned. The conversion of the information received into a complaint by a competent public servant, the registration of the FIR, the issuance of notices under Section 41A of the CrPC, and the consequent necessity of filing a Section 173 of the CrPC report have only led to complications in matters and a colossal waste of time and human resources. The Delhi High Court in the aforementioned case suggested adopting a simpler approach in cases where ordinary citizens are involved and who have no criminal background. It also clarified that the existence of an FIR, despite a complaint being presented before the court, will not bar the court from taking cognizance of the matter.
Frequently asked questions (FAQs)
Is Section 188 a bailable offence?
According to the First Schedule of the CrPC, Section 188 is a cognizable and bailable offence.
In which court can Section 188 be tried?
It can be tried in the court of any magistrate.
Is Section 188 a compoundable offence?
As per Section 320 of the CrPC, Section 188 is a non-compoundable offence.
- Ratanlal and Dhirajlal, 2019, The Indian Penal Code, LexisNexis.
- RV Kelkar’s Criminal Procedure, Lucknow, Eastern Book Company.
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