By – Chongtham victor
Advocate
There are certain FIR being registered in our State of Manipur on the grounds of breaching the order passed under Section 188 of IPC i.e. Disobedience to order duly promulgated by public servant. The same is intended to pass to control the public movement, prevent from causing any untoward incident within the state of Manipur during the so called lockdown. However, it is significant to discuss as to whether the present section is sufficient enough to invoke in order to control the pandemic corona . A such in this regards the section 188 of the IPC is reproduced herein:-
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 Rs. 200/- 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 6 months, or with fine which may extend to Rs. 1000/ – or with both.
Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration
An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence stated above.
Lord Macaulay’s Report on this provision will be of some interest before proceeding to deal with the provision. The same is reproduced hereunder:
Thus it may happen that a religious procession which is in itself perfectly legal, and which, while it passes through many quarters of a town is perfectly harmless, cannot, without great risk of tumult and outrage, be suffered to turn down a particular street inhabited by persons, who hold the ceremony in abhorrence, and whose passions are excited by being forced to witness it. Again, there are many Hindu rites which in Hindu temples and religious assemblies, the law tolerates, but which could not with propriety be exhibited in a place which English gentlemen and ladies were in the habit of frequenting, for purpose of exercise. Again, at a particular season, hydrophobia may be common among the dogs at a particular place, and it may be highly advisable that all the people at that place should keep their dogs strictly confined. Again, there may be a particular place in a town in which the people are in the habit of using as a receptacle for filth. In general, this practice may do no harm, but an unhealthy season may arrive when it may be dangerous to the health of the population, and under such circumstances it is evidently desirable that no person should be allowed to add to the nuisance. It is evident, that it is utterly impossible for the legislature to mark out the route of all the religious processions in India, to specify all the public walks frequented by English ladies and gentlemen, to foresee in what months and in what places hydrophobia will be common among dogs,, or when a particular dunghill may become dangerous to the health of a town. It is equally evident that it would be unjust to punish a person who cannot be proved to have acted with bad intentions for doing today what yesterday was a perfectly innocent act, or for doing in one street what it would be perfectly innocent to do in another street, without giving him some notice.
What we propose, therefore, is to empower the local authorities to forbid acts which these authorities consider dangerous to the public tranquillity, health, safety, or convenience, and to make it an offence for a person to do anything which that person knows to be forbidden, and which may endanger the public tranquillity, health, safety, or convenience. It will be observed that we do not give the local authorities, the power of arbitrarily making anything an offence.
For unless, the Court before which the person who disobeys the order is tried shall be of opinion that he has done something tending to endanger the public tranquillity, health, safety, or convenience, he will not be liable to punishment. The effect of the order of the local authority will be merely to deprive the person who knowingly disobeys the order of the plea that he had no bad intentions. He will not be permitted to allege that if he has caused harm or risk of harm, it was without his knowledge.
Thus, if in a town where no order for the chaining up of dogs has been made, A suffers his dog to run about loose, A will be liable to no punishment for any mischief which the animal may do, unless it can be shown that A knew the animal to be dangerous. But if an order for confining dogs has been issued, and if A knew of that order, it will be no defense for him to allege, and even to prove, that be believed his dog to be perfectly harmless. If the Court thinks that A’s disobedience has caused harm, or risk of harm, A will be liable to punishment. On the other hand, if the Court thinks that there was no danger, and that the local order was a foolish one, A will not be liable to punishment.
To constitute an offence under Section 188 of IPC, mere disobedience of an order is not sufficient. The disobedience should also lead to enumerated consequences, in the second or third limb of the Section to constitute it as an offence.
The words public servant lawfully empowered to promulgate” in Section 188 IPC are significant.
A person may be legally justified, though not lawfully empowered. For instance, a Police Inspector may stop the playing of music or speech made by someone, if he apprehends breach of peace, but he is not lawfully empowered to do so within the meaning of the Section, which is limited to specifically authorised acts. To put it simply the essential ingredients of this offence are ;
i) Promulgation of a legal order,
ii) its communication to the accused,
iii) its disobedience by him, and
iv) the injurious consequence as described in the section.
Promulgation of an order would mean to make known by public declaration, to publish; to disseminate or to proclaim”. The normal practice that is followed in our State is, by way of a publication in Gazette and by announcing the same in newspapers with wide circulation.
Police Officer is also a public servant under Section 21 of IPC.
Now as per the relevant provisions in this regards may be discussed further i.e.
Cognisance of offence
Section 195(1)(a)(i) of Criminal Procedure Code, 1973.
195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) ……..
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
A plain reading of the provision clearly brings out the procedure. A complaint in writing from the public servant is essential for a Magistrate to take cognizance of an offence under Section 188 of IPC.
Section 195(1)(a)(i) mandates the filing of a complaint in writing by a public servant and the Police cannot register an FIR and investigate the case and thereafter file a Final Report, in cases where the alleged offence is under Section of 188 IPC. Section 195 of Cr.P.C carves out an exception and states that no Court shall take cognizance of certain offences, unless the stipulation under Section 195 of Cr.P.C is satisfied.
Section 188 IPC, is normally passed in all these cases, under Section 30(2) of the Police Act.
The power under Section 30(2) of the Police Act can be exercised only within the ambit of the provisions of the Constitution, which gives a citizen, freedom of speech and expression with reasonable restrictions and the restrictions imposed under the promulgation must satisfy the test of reasonableness.
In Daulat Ram .Vs. State of Punjab reported in AIR 1962 SCC 1206, the relevant paragraphs are extracted hereunder:
The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of s. 195. 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 seisin of the case except in the manner provided by the section.
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 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. 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.
The test of whether there is evasion or non-compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, the Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section-195 Cr.PC. Thus, cognizance of such an offence cannot be taken by misdescribing it or by putting a wrong label on it.
In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
“….Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section.”
Section 195 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-recognised 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.”
In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under :
“The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside.”
Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC is mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders.
Malafide intention
In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion.
In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:
a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.
c) The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.
d ) In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;
i) that there must be an order promulgated by the public servant;
ii) that such public servant is lawfully empowered to promulgate it;
iii) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and
iv)that such disobedience causes or tends to cause;
(a) obstruction, annoyance or risk of it to any person lawfully employed; or
(b) danger to human life, health or safety; or
(c) a riot or affray.
e)The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.
f) No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. An FIR or a Final Report will not become void-ab-initio (wrong from the inception) insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.
The opinion being formed herein does not intend to defy anything or cause public unrest as the same is purely dealt with the provision of law relating with the present issue at hand i.e. CORONA Lockdown. Rather, it is formed academically for all of us.
