Key ingredients for indictment under Section 188 of the Indian Penal Code

While much has been opined about the procedural aspects of a complaint under Section 188 of the Indian Penal Code, 1860 in recent weeks, a key issue that has not been deliberated upon much is that of the basic ingredients required to invoke the provision.

With a plethora of complaints being lodged under Section 188 ever since the inception of the nationwide COVID-19 lockdown and the imposition of curfew in most parts of the country, the issue of satisfying and meeting the key ingredients of the provision assumes vital importance.

Section 188 occurs in Chapter X of the Indian Penal Code, and reads as under:

“188. Disobedience to order duly promulgated by public servant: 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 tends 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.”

From a bare reading of the aforesaid provision, the mere disobedience of an order made by a public servant is not punishable under Section 188. The disobedience must lead to the consequences stated in Para 2 and/or 3 of the said provision.

For the purpose of this article, we shall only be focusing on an indictment under Para 2 of the said provision.

Two of the primary ingredients mandatorily required to be met in order to invoke action and attract punishment under Para 2 of the said provision are:

(i) “Knowledge of the order” promulgated by a public servant directing the offender to abstain from certain act;

(ii) Disobedience by the offender, in such a manner where it causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person “lawfully employed”.

Knowledge of the order

To sustain an indictment for an offence under any penal provision in law, knowledge of the accused has always been considered pivotal. However, to invoke the rigors of Section 188 IPC, the accused's “knowledge” of the order promulgated by the public servant becomes rather mandatory and a pre-requisite, failing which any indictment under the same is bad in law and is liable to be quashed at its very inception.

A person booked under Section 188 IPC “must” have actual knowledge of the public servant’s order requiring him to do or abstain from doing some act. Actual proof of the same has to be produced on record and in the absence of the same, no presumption of having acquired or gained knowledge of the said order can be raised against the accused.

Although not many courts have had the occasion to deal with the aforesaid issue specifically in relation to Section 188, reference can be made to one such decision rendered by the Division Bench of the Delhi High Court in Bhoop Singh Tyagi v. State. In that case, the Court was dealing with an FIR u/s 188 against the petitioner for having allegedly disobeyed the Police Commissioner’s orders contained in a notification claimed to have been published in the newspaper. The Court, while quashing the proceedings against the petitioner, was pleased to hold as under:

“ The stand of the police is that the requisite knowledge must be attributed to the accused because the Police Commissioner’s order was published in some newspapers and handbills, etc. This in our view would not meet the requirement, because a number of events may be reported in newspapers but that would not attribute or convey knowledge of such events to all readers...

...We accordingly hold that the petitioner could not be attributed knowledge of the Commissioner’s order contained in the notification and therefore the impugned FIR could not be said to make out any offence against him under Sec. 188, IPC.”

Obstruction, annoyance or injury to any person "lawfully employed"

The words “lawfully employed” assume vital importance in this regard, and cannot be overlooked, as it is not mere disobedience amounting to obstruction, annoyance or injury, which is punishable under the said provision. 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.

It would be pertinent to state here that the words “lawfully employed” are conspicuously missing from Para 3 of the said provision, thereby making it further clear that in case of an act of disobedience of the order, causing danger to human life, health or safety, the affected person need not be “lawfully employed”.

This issue, probably for the first time in independent India, was raised before the High Court of Calcutta in The King v. Darbarilal Shaw. The Court, while setting aside a conviction under Section 188 for violation of an order passed by a Magistrate under Section 144 of the Code of Criminal Procedure (CrPC), was pleased to hold that mere disobedience of an order passed under Section 144 CrPC would not be punishable under Section 188. The disobedience of the order must cause or tend to cause restriction, injury or annoyance to a person “lawfully employed” and while emphasizing on the said words, the Court further observed –

“I stress the phrase “any persons lawfully employed”. No one has come forward to say that the disobedience has had the effect of causing or tending to cause obstruction, injury or annoyance to a person lawfully employed...Here the construction of the building would not cause any annoyance to the officers, as their rights were not infringed at all.”

It is pertinent to state here that the contention that the annoyance was caused to the “Magistrate” or to the “Government” was also rejected by the Court as “ridiculous”.

More than two decades later, the Karnataka High Court also had occasion to deal with a similar issue in DN Ramaiah v. DR Aswathanraryanshetty & Ors. In that case, the petitioner, claiming to have been evicted by the respondent in violation of an order passed by the Magistrate under Section 145 CrPC, had alleged violation of Section 188 IPC. While rejecting the said contention, the Court went on to hold that for any disobedience to attract penal action under Para 2 of Section 188, the obstruction, injury or annoyance to “any person” would not be sufficient and the same had to be proved to have been inflicted upon a person “lawfully employed".

In view of the aforesaid decisions and interpretations given to the provision by various courts in the country, it would be trite to state that mere disobedience of an order passed by a public servant would not attract the rigours of Section 188 IPC. The onus is upon the police/complainant to mandatorily establish that the accused had “knowledge” of the order promulgated by the public servant, while disobeying it and that such disobedience had caused/tended to cause obstruction, annoyance or an injury or risk of obstruction, annoyance or injury to a person “lawfully employed”, and not just to any person, party to a dispute, government official etc.

Consequently, failure to meet even one of the aforesaid two ingredients would go to the very root of the registration of an FIR/complaint u/s 188, IPC and render all consequential proceedings bad in law.

The author is a Delhi-based lawyer who specializes in Criminal Law.