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Tuesday, September 22, 2020

Special to Express: Legality of FIR under Section 188 IPC

Section 188 IPC covers offences related to ‘contempt of lawful authority of public servants’. The provision specifically deals with the offence of disobedience to an order duly passed by a public servant.

July 19, 2020 10:54:20 am
The statutory power of the Police to investigate under the Code is not in any way controlled by Section 195 CrPC. 

Written by Dr Sarika Garg

In order to prevent violation of promulgation/notification issued by Distt Magistrate regarding the implementation of complete lockdown due to spread of the COVID-19 pandemic, Section 188 of the Indian Penal Code (IPC) has come into light. It is the penal provision which is invoked in case of non-compliance of the guidelines or directives contained in the notifications issued by the competent authority. In the present circumstances, it is necessary to understand this provision and its implication.

Section 188 IPC covers offences related to ‘contempt of lawful authority of public servants’. The provision specifically deals with the offence of disobedience to an order duly passed by a public servant. As per this provision, 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. Section 188 is a cognizable offence and thus, apart from powers of arrest without warrant which accrue to the police in such offences, the police can register a FIR and initiate investigation into such offence.

However, Section 195(1)(a) CrPC provides that no court shall take cognizance of any offence punishable under Section172 to S. 188 of the IPC except on a written complaint of the public servant concerned or of his superior. 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.

The police authorities and prosecuting agencies have been widely ignoring the procedure prescribed under section 195 CrPC and directly submit final reports, based on which the court takes cognizance of the offence. Even in C Muniappan and Others v. State of Tamil Nadu, the Court elucidated that in a case where the charge is under S. 188 IPC, cognizance by the Court under Section 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 provision of Section 195, CrPC being mandatory, any non-compliance thereto would necessarily vitiate the entire prosecution. While the trial and even conviction can be set aside for contravention of Section 195, CrPC, the FIR and investigation by the police is not rendered illegal by any means. The bar under Section 195, CrPC 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 other words, the statutory power of the Police to investigate under the Code is not in any way controlled by Section 195 CrPC.

Therefore, the police has the power to take action to prevent an offence committed u/s 188 IPC from being committed and has the power 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 competent court of law can only take cognizance of an offence under Section 188 IPC on a written complaint filed by the competent public servant whose order has been contravened by the accused. The police should inform the competent public authority regarding such offence, for him to be able to file a complaint before the court along with the police report. Thus, a prosecution under an offence under Section 188, IPC cannot be initiated based on a final report filed by the police without the written complaint of the competent public authority.

In view of this, police officers, as well as prosecution agencies and public authorities, are bound to observe the correct procedural law around Section 195 CrPC and Section 188, IPC, and written complaint of the DM or its superior officer annexed with police report should be submitted for taking cognizance of the offence by the court.

(Dr Garg is an advocate in the Punjab and Haryana High Court)

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