COVID-19, Criminal Law, and the Section 188 IPC conundrum

The extensive measures taken by the central and state governments in an effort to contain the spread of the COVID-19 pandemic, including enforcement of an unprecedented nation-wide lockdown, have and will continue to have widespread impact on the lives and businesses of people.

All of a sudden, statutes new and old like the Disaster Management Act, 2005 (DMA), the Epidemic Diseases Act, 1897 (EDA), and certain provisions of the Indian Penal Code, 1860 (IPC) have entered into the regular vocabulary of lawyers.

The EDA has been invoked by various states while announcing their own measures, some even enforcing lockdowns on their own. The DMA, on the other hand, has been invoked by the central government by the notification dated March 23 calling for a nation-wide lockdown, and the notification dated April 15 extending the lockdown and issuing detailed guidelines with some relaxations from April 20 onwards.

Notably, Section 188 IPC has been a consistent feature in most of the orders/directives/notifications by the governments, whether state or central. It is the penal provision invoked in case of non-compliance of the guidelines or directives contained therein.

A right understanding of this provision thus becomes crucial, for laymen and lawyers alike, in order to mitigate the heightened legal risk faced by everyone in the these distressed times.

Section 188 is a part of Chapter X of the IPC, which covers offences related to ‘contempt of lawful authority of public servants’. It lays down penalties for such contempt of orders of public servants like avoiding service of summons, non-appearance or non-attendance in response to an order, etc.

The provision specifically deals with the offence of disobedience to an order duly passed by a public servant.

Simply put, it provides that any person who has the knowledge of an order passed by a competent public servant, by which he is directed to abstain from doing any act or a certain direction with respect to property possessed or held by him, disobeys such direction, he shall be liable to be punished under this section.

Notably, mens rea or a guilty mind is not an essential requirement for commission of an offence under this section. What is required is knowledge of the order so contravene, and that such contravention may result in or is likely to result in actual harm.

The gravity of punishment under this Section varies with the severity of the consequences of the act:

1. 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 might face a simple imprisonment of up to one month or fine up to Rs. 200, or both;

2. If such disobedience is of a greater nature, so as to cause or tend to cause danger to human life, health or safety, etc, the offender might face an imprisonment of up to six months and fine up to one thousand rupees or both.

Importantly, as per Section 320 of the Code of Criminal Procedure (CrPC), S. 188 is a non-compoundable offence.

Procedural Scheme around Section 188, IPC

By virtue of the First Schedule of the CrPC, S. 188 is made a cognizable and bailable offence. This, in the normal course of things, would mean that apart from powers of arrest without warrant which accrue to the police in such offences, the police can register a First Information Report (FIR) under Section 154, CrPC, and initiate investigation into such offence.

This would also then mean that on conclusion of investigation, the police can proceed to file a final report before the competent court under S. 173(2), CrPC, based on which the competent court can take cognizance and initiate trial.

However, here, Section 195 CrPC comes into the picture. This provision lays down a special procedural scheme related to taking cognizance by courts in relation to certain offences. S. 195(1)(a) provides that no court shall take cognizance of any offence punishable under S. 172 to S. 188 of the IPC except on a written complaint of the public servant concerned or of his superior.

As the other offences mentioned therein are non-cognizable, S. 195(1)(a) simply means that no private complaints can be entertained for these offences related to contempt of lawful authority of public servants.

However, this provision has distinctive consequences for the cognizable offence under S. 188, IPC. Along with barring private complaints, it also expressly bars a court from taking cognizance of this offence on the basis of a final report by the police.

This procedural twist in the enforcement of S. 188, IPC has been widely ignored, or say misunderstood, by police authorities, prosecuting agencies, and other state authorities. In their zeal to prosecute any offenders of public orders, the prosecution often straightway submits final reports, based on which the court takes cognizance of the offence. This is a travesty of the judicial process.

Unsurprisingly then, this issue has been a subject matter of much litigation, wherein the courts have had to repeatedly step in.

A case in point is C Muniappan and Ors v. State of Tamil Nadu, wherein the question of maintainability of prosecution under S. 188, IPC in the absence of a written complaint by a public servant came up for consideration before the Apex Court.

This was a case were multiple offences like murder, rioting, loss to public property etc. were also involved. The Court elucidated that in a case where the charge is under S. 188, IPC, cognizance by the Court, as provided for under S. 195, CrPC, can only be taken on the basis of a complaint in writing by the public servant whose lawful order had been contravened, and if not, the whole proceedings will stand vitiated and will be liable to be set aside.

The Apex Court also went into the object of S. 195, CrPC, observing,

“[t]he legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions."

The provision of S. 195, CrPC being mandatory, any non-compliance thereto, as has been held in a number of judgments over the years, would necessarily vitiate the entire prosecution.

The words “no court shall take cognizance” have been interpreted on more than one occasion and they show that there is an absolute bar against the court taking judicial notice of the case except in the manner provided by the section.

A Twist in the Tale – Arrest? FIR? Investigation?

One question, however, which has remained a subject matter of much debate is: how can the police register an FIR and investigate into the offence of S. 188, IPC as such investigation would naturally culminate into a final report under S. 173, CrPC which is rendered useless by the bar under S. 195, CrPC? And if not, can the police even arrest an offender under this section?

A recent judgment of the Madras High Court, Jeevanandham and Ors v. State and Ors, has further muddied the waters. In the said judgment, it has been held that the offence under S. 188 IPC being cognizable by itself does not enable the police officer to register an FIR, because such registration of an FIR has to necessarily end with a police report, the cognizance on which basis cannot be taken by the Magistrate due to the bar under S. 195, CrPC.

The Court thus held that in a case under S. 188, IPC the role of a police officer will be confined only to preventive action as stipulated under S. 41, CrPC and he cannot register an FIR, even though S. 188, IPC is a cognizable offence.

Subsequently, multiple other judgments of the Madras High Court have followed this reasoning and quashed not only the proceedings arising out of the final report, but also the FIR registered by the police.

Interestingly, as this article was being written, a Public Interest Litigation has been reportedly filed before the Supreme Court seeking quashing of all FIRs registered under S. 188, IPC for violation of the current lockdown on this very ground, that in view of S. 195, CrPC, an FIR cannot be registered under this offence.

This, in the authors’ view, is a misreading of the law on the subject. What S. 195, CrPC circumscribes is the power of the court to take cognizance without a written complaint by the concerned public servant and not the powers bestowed upon the police regarding arrest and investigation.

After all, the offence under S. 188, IPC does remain a cognizable one under the First Schedule of the CrPC. Thus, while the trial and even conviction can be set aside for contravention of S. 195, CrPC, the FIR and investigation by the police is not rendered illegal by any means.

The effect of S. 195, CrPC comes into operation only at the stage of taking of cognizance by the court under S. 190 CrPC; and there is no bar on the statutory power of the police to investigate into an FIR which discloses a cognizable offence.

The Supreme Court’s judgment in State of Punjab v. Raj Singh is the locus classicus here, wherein the Court held that

“…From a plain reading of Section 195 Cr.P.C. it is manifest that the bar under S. 195, CrPC comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) Cr.P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable 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 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1) (b) Cr.P.C…”.

This position of law remains coherent and has been followed by the Supreme Court and various High Courts in several judgments over the years.

Conclusion

Therefore, the correct law on the procedural scheme around the offence of S. 188, IPC, to which the judgments of the Madras High Court (supra) and the recently filed petition appear to be oblivious, can be summed up as follows:

• S. 188 IPC does remain a cognizable offence, as clearly provided for in First Schedule, CrPC. The police in that case has the power to take action to prevent such an offence from being committed, and may arrest a person without warrant, as provided for in S. 41, CrPC.

• The police has the power, and in fact, the obligation to register an FIR and proceed to investigate into such an offence, and may proceed to prepare a report consequent to such investigation.

• However, a court can only take cognizance of an offence under S. 188, IPC on a written complaint filed before it by the public servant whose order has been contravened by the accused.

• The police shall, thus, inform the concerned public officer regarding such offence, for him to be able to file a complaint before the court. The said complaint may be based on or can be filed with the report prepared by the police post investigation.

• The court, on examination of complainant and witnesses under S. 200, CrPC, may conduct an inquiry or direct investigation under S. 202, CrPC, and then may either issue process under S. 204 CrPC, or dismiss the complaint under S. 203, CrPC.

• Thus, a prosecution under an offence under S. 188, IPC cannot be initiated based on a final report (or a charge-sheet/challan, as known colloquially) filed by the police.

In these unprecedented times, while courts across the country are adapting and putting in their best efforts to ensure that some mechanism of justice delivery is still in place, it falls upon the state and its authorities too to be awake to this scheme of law regarding the procedural law around S. 188, IPC, and to not subject the citizenry to any wrongful prosecution.

Abhishek Ghai is a Managing Associate and Ishan Dewan and Taahaa Khan are Associates at L&L Partners.