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SECTION 188 IPC AND SECTION 195 CRPC: A RIDDLE

Authored by: Hitesh Vachhani

INTRODUCTION

At present, the entire world is fighting against an appalling virus namely COVID-19. Where there is no clue as to its cure, various countries have called for lockdowns in affected areas ensuring minimal transmission of the virus. There are various government guidelines which the states are required to follow during this COVID-19 pandemic. Our Hon’ble PM had on 24th of March had announced nation-wide lockdown for 21 days and which now has been extended with certain restrictions being lifted. During the lockdown provisions of the unheard acts like the Epidemic Diseases Act, 1879 and the Disaster Management Act, 2005 have been invoked to maintain order. The abovementioned act provides for penalties for disobeying any regulation or order made under the Acts which is in accordance to Section 188 Indian Penal Code (IPC).

UNDERSTANDING OF SECTION 188

Section 188 refers to disobedience of the public order as an offence. Interestingly, mens rea/ guilty mind is not an essential requirement for a person to commit such offence. 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 certain directions, disobeys such directions, he shall be liable to be punished under this Section.

Schedule 1 of IPC makes Section 188 a bailable and a cognizable offence (Police can arrest without a warrant). Thus, if a person abstains from doing an act or disobeys any public order, the Police can arrest that person without any warrant, register an FIR, investigate into the offence and prepare a report which is to be submitted to the magistrate under Section 173 (2) CrPC based on which the court initiates to take cognizance of such offence. This seems easy but this Section has a lot more when it comes to its procedural aspect.

PROCEDURAL TWIST BEHIND SECTION 188

Section 195 of the CrPC deals with prosecution for contempt of lawful authority of public servants. Thus, if a person disobeys any public order he would be charged with Section 188 IPC and the procedure should in the normal course initiate in accordance with Section 195 CrPC. However, Section 195 (1) (a) (i) specifies that a no court shall take cognizance of any offence punishable under 172 to 188 IPC (inclusive of both), except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. Thus, this Section expressly bars initiation of proceedings based on the private complaints.[i] This in fact is a limitation on the unfettered powers of a magistrate to take cognizance under Section 190 of the Code.

PROCEEDINGS BASED ON PRIVATE COMPLAINTS

Section 195 expressly bars cognizance of the offence based on private complaints. The provision is an exception to general rule contained in Section 190 CrPC that any person can set a criminal law into motion, based on a complaint. The legislative intent behind Section 195 CrPC has been explained by the Hon’ble Supreme Court in C. Muniappan & Ors vs state Of Tamil Nadu[ii] in the following words:

“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 has been that an individual should not face criminal prosecution instituted upon insufficient grounds by person actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions.”

Therefore, it is needless to state that provisions of Section 195 are mandatory[iii] and if there is a non-compliance with the provisions of Section 195, the Magistrate will have no jurisdiction to take cognizance of any of the offences enumerated therein.[iv]

CAN A POLICE ARREST /REGISTER AN FIR /INVESTIGATE?

The moot question here is that whether the Police arrest a person for such violation and can register an FIR and subsequently proceed with the investigation because all of this would be a futile exercise if the courts are barred from taking cognizance of such offence based on the report submitted u/s 173 (2) CrPC.

 In K.C.Palanisamy and others Vs. state[v]  the SC had held that the final report filed by the Police in respect of Section 188 of IPC is not maintainable. In V.Gowthaman & Others .Vs. state[vi] the SC had held that Though the learned counsel for the accused had failed to argue a particular legal aspect which is favorable to him, this Court does not want to take advantage of his ignorance. A Court cannot take cognizance of an offence under Section 188 IPC on a Police report filed under Section 173(2) CrPC but only on the complaint by a concerned public servant in the light of Section195 CrPC. Thus, the prosecution of the accused under Section 188 IPC stands quashed.”

Thus, it is true that a Police Officer, by virtue of the power given under Section 41 of CrPC, will have the authority to arrest a person, without any warrant or order from a Magistrate, when a cognizable offence is committed in his presence or in order to prevent the committing of a cognizable offence. This power by itself will not vest the Police Officer to register an FIR for an offence under Section 188 of IPC. After the arrest, the concerned Police Officer is duty bound to inform the public servant authorized about the offence committed under Section 188 of IPC and the public servant thereafter has to proceed in accordance with the procedure under Section 195(1)(a)(i) of CrPC. In other words, the power of the Police Officer to arrest a person committing a cognizable offence, is only a preventive action and thereafter the procedure to be followed is guided by Section 195(1)(a)(i) of CrPC.

SECTION 195 CRPC AND ITS INTERPRETATION- THE REALITY

The Hon’ble SC in Sachida nand Singh & Anr. v. state of Bihar & Anr.[vii]  had held that

Section 195 CrPC restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well-recognized canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise”.

Thus going by the law laid down in the abovementioned case, Section 195 CrPC should receive a strict interpretation. The words “no court shall take cognizance of” used in Section 195 CrPC are very important. This would mean that only when the courts intend to take cognizance of offence mentioned in Section 195 CrPC, this Section would come into play and not before. This Section may bar the court from taking cognizance of the matter based on the report submitted u/s 173 (2) but this in no manner bars the Police officers from exercising their statutory powers of investigating into an FIR which discloses a cognizable offence.

The Hon’ble SC has settled this confusion in state of Punjab and Raj Singh & Anr.[viii] in the following words-

“From a plain reading of Section 195 Cr.P.C. 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) 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 accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding 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 Cr.P.C.” 

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

CONCLUSION

The courts as said are barred from taking cognizance of the matter based on the final report submitted to it u/s 173 (2) CrPC. And this does not bar the Police from registering the FIRs and investigate into the same. Interestingly, a PIL has been filed in the Hon’ble SC seeking directions to quash frivolous and untenable FIRs. But the PIL is based on the wrong premise and puts forward a wrong solution to a very genuine problem. Thus, the requirement put forward by Section 195 is that the Police shall inform the concerned public officer regarding such offence and he then would 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.

This disclaimer informs readers that the views, thoughts, and opinions expressed in the text belong solely to the author, and not necessarily to the author’s employer, organization, committee or other group or individual.


[i] Daulat Ram .Vs. State of Punjab reported in AIR 1962 SC 1206; Saloni Arora .Vs. State (NCT of Delhi) reported in AIR 2017 SCC 391

[ii] 2010 (9) SCC 567

[iii]M.S Ahlawat v. State of Haryana & Anr. AIR 2000 SC 168

[iv] Govind Mehta v. The State of Bihar AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh (1996) 3 SCC 533

[v] (2004) M.L.J. (Crl) 633

[vi] 2018 (4) CTC 252

[vii] (1998) 2 SCC 493

[viii] (1998) 2 SCC 391

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