Since the commencement of nation-wide lockdown on March 24, 2020, over 1 lakh FIRs have been filed across the nation under Section 188 of Indian Penal Code apart from invoking of Epidemic Diseases Act, 1897 by various states and Disaster Management Act, 2005 by Central Government. Let us understand what does Section 188 say and why it is in controversy?
Section 188 deals with disobedience to order duly promulgated by public servant. It says, “Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
“Intention” is not the necessary ingredient for the applicability of the section. It is required that the order shall be promulgated by a public servant who is duly authorized to promulgate such order. The offence is cognizable and bailable and triable by any magistrate. Although baliable offence but is non-compoundable under Section 320 CrPC.
Why it is in conflict with Section 195 CrPC?
Section 195 (1) (a) of CrPC deals with Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It specifically puts a restriction as to cognizance of offence by court related to Sections 172-188 except on the complaint in writing by the public servant or of some other Public Servant to whom he is subordinate. It means though the offence under Section 188 is cognizable but no court shall take cognizance of the offence as the provision requires sanction from authorized Public Servant.
On one hand, cognizance is taken by police by arresting the offender but on the other hand not triable by a magistrate without sanction by virtue of Section 195(1)(a) of CrPC. Under Section 188, the police can arrest the offender and can also file a Police report under Section 173(2) of CrPC and magistrate can take cognizance of the report. Now the question comes, even if police are empowered, does section 195(1)(a) of CrPC permits the police to file FIR and arrest the offender?
Police cannot file FIR
The issue came up for hearing before Madras High Court in the matter of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District. The Court said that it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has power to take cognizance. The court has issued a series of guidelines as to exercise of power under Section 188of IPC, which are as follows:
1. A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
2. A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.
3. The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
4. In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely; i) that there must be an order promulgated by the public servant; ii) that such public servant is lawfully empowered to promulgate it; iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and iv)that such disobedience causes or tends to cause; (a) obstruction, annoyance or risk of it to any person lawfully employed; or (b) danger to human life, health or safety; or (c) a riot or affray.
5. The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
6. The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.
7. No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence.
8. Under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.
9. The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.
The judgment did not say as to not to exercise the arrest of power. It only says that the FIR has to be registered upon a written complaint of Public Servant duly authorized in this regard. It also prevents the Judicial Magistrate to take cognizance of a police report which reflects offence under section 188.
What Supreme Court says
By an order dated 06 May 2020, Supreme Court dismissed a PIL by former Director-General of Police seeking quashing of FIRs for petty offences registered during lockdown. The bench observed if FIRs are not registered then how the lockdown shall be imposed.
So, this is very much understood that arrest and FIR both could be made under section 188. Even though section 195 makes the sanction mandatory, section 188 empowers the police to register FIR, arrest, and file police report before a magistrate to take cognizance.