FIR under Section 188 of the Indian Penal Code

In order to contain the spread of COVID-19 and to ensure that the lockdown is a success, the Central and state governments have issued a number of directions/notifications.

These directions, if violated, would attract the provisions of the Epidemic Diseases Act, 1897, the Disaster Management Act, 2005 and Sections 188, 269, 270 and 271 of the Indian Penal Code, 1860 (IPC).

Ever since the government announced the lockdown, there have been numerous violations, most of which have attracted Section 188 IPC. This provision falls under Chapter X of the Code, which deals with contempt of the lawful authority of public servants.

The ingredients of Section 188 IPC are:

(1) existence of an order promulgated by a public servant.

(2) public servant must be lawfully empowered to promulgate such order.

(3) the accused must have knowledge of the order promulgated by the public servant.

(4) the accused must disobey the order promulgated by the public servant.

(5) Such obedience must cause or tend to cause (a) obstruction, annoyance or injury or risk of it to any person lawfully employ or (b) danger to human life, health and safety

Where the defiance causes obstruction, annoyance, injury or risk to any person lawfully employed, the offender shall 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.

Where it endangers human life, health and safety, the offender shall be punished with imprisonment of either description for a term which may extent to six months, or with fine which may extend to one thousand rupees, or with both.

Section 188 IPC is a cognizable and bailable offence, whereas other offences under Chapter X - except Section 174A - are non-cognizable and bailable IPC. Ergo, as per Section 154 of the Code of Criminal Procedure (CrPC), the police can register an FIR, investigate the matter and file a final report under Section 173(2) CrPC before the concerned Magistrate.

Under Section 190 CrPC, the Magistrate is empowered to take cognizance of any offence upon receiving a complaint of facts, which constitute such offence, or upon a police report of such facts, or further, upon information received from any person other than the police officer.

However, the CrPC carves out can exception and inhibits the Magistrate to take cognizance by virtue of Section 195 CrPC. Section 195(1)(a) (i) CrPC states that no court shall take cognizance of any offence punishable under Sections 172 to 188 IPC, except on a complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate.

It has been held in Daulat Ram v. State of Punjab that Section 195 is mandatory and contravention of the same vitiates the trial being without jurisdiction and void ab intio. Further, the Apex Court in C Muniappan v. State of Tamil Nadu held that Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or 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 object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision was 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 prevent the wastage of time of criminal courts.

This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person.

Other provisions in the Cr.PC like Sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections.

Further the Supreme Court in M Narayandas v. State of Karnataka held,

“We are unable to accept the submissions made on behalf of the Respondents, Firstly it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment, Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh...

In Raj Singh, the Court had held,

"...From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed to, or in relation to, any proceedings in court.

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. It is or 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) CrPC, but nothing therein deters the court from filling a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC..."

On reading of these judgments, in our view, the bar is on taking cognizance by the Magistrate and not on police recording the FIR and the completing the investigation. Once the investigation is complete, the public servant whose order has been disobeyed can give a complaint in writing which becomes a part of the final report. The filing of the complaint is a prerequisite for the magistrate to proceed.

The Magistrate, on being satisfied that it attracts the ingredients of Section 188 IPC, shall take cognizance and direct the appearance of the accused. In light of the aforementioned punishments prescribed for offences under the provision, the case will be tried as a summary case or summons case.

Any violation of the COVID-19 lockdown shall fall under the second part of Section 188, and in that case, under Section 259 CrPC, the court has the power to convert summons cases into warrant cases. The Magistrate will have to pass a speaking order for doing so.

Therefore, in our view, an FIR under section 188 IPC can be registered and investigated by the police. The prosecution will be rendered void ab intio if there is no complaint under Section 195 CrPC, and the same cannot be cured subsequently.

The authors are practising advocates and Partners at MS Law Chambers.