Quashing Of FIR Registered Under Section 188 of the Indian Penal Code (IPC) During COVID 19
The violation of Section 188 of the Indian Penal Code (IPC) attracts jail term of one month or fine up to Rs 200, or both and if the disobedience causes danger to human life, health or safety, the person can be punished with a 6-month jail term and a fine of Rs. 1000 or both Quashing FIR Registered 188 COVID 19
The Supreme Court rejects plea seeking quashing of FIRs registered under an IPC section 188 which deals with disobedience of orders of a public servant and other petty offences during the nationwide lockdown to prevent the spread of coronavirus.
A bench headed by Hon’ble Justice Ashok Bhushan, hearing the matter through video-conferencing, asked the counsel appearing for the petitioner that if Section 188 of the IPC was not invoked then how the lockdown would be imposed.
“You want there should be no FIR?,” the bench asked senior lawyer Gopal Sankaranarayanan and Advocate Virag Gupta, appearing for petitioner Vikram Singh, who is a former DGP of Uttar Pradesh and the chairman of an NGO ‘Centre for Accountability and Systemic Change (CASC).
Sankaranarayanan told the bench, also comprising Justices S.K. Kaul and B.R. Gavai, that the several FIRs have been registered against migrants and there cannot be a rule of law which is selective.
The plea had sought directions under the Disaster Management Act of 2005 to various state governments to refrain from filing complaints and registering FIRs under section 188 or other petty offences during the lockdown period.
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The NGO had said that as per its research, 848 FIRs under Section 188 of the IPC have been registered in 50 police stations of Delhi alone between March 23 and April 13. Quashing FIR Registered 188 COVID 19
In further said the Uttar Pradesh government through its Twitter handle has informed that 15,378 FIRs under the section has been registered in the state against 48,503 persons.
“If this is the situation in the national capital and adjoining state then the situation in other parts of the country can very well be imagined,” the plea had said, adding, that the registration of FIRs under section 188 of IPC is grossly illegal and antithesis to Rule of Law, and violates Article 14 and 21 of the Constitution.
Singh said in the plea that being a retired police officer, he understands the police functioning as well as the pain and suffering of those who are caught in the wheels of the criminal justice system.
“The Petitioner is also concerned with the undue burden on police officers, who will have to do voluminous documentation in all such matters,” the plea has said.
THE POLICE CAN NOT REGISTER THE FIR UNDER SECTION 188, MADRAS HIGH COURT QUASHING FIR AGAINST ANTI CAA PROTESTER Quashing FIR Registered 188 COVID 19
The Madras High Court while quashing FIR registered against an Anti-CAA protester observed that Police cannot register FIR for the offences under Section 188 of IPC. Quashing FIR Registered 188 COVID 19
The bench headed by Justice GK Ilanthiraiyan was hearing a petition filed by Shamsul Huda Bakavi seeking quashing of proceedings in a case registered against him by the Police under Section 143 and 188 of IPC.
The petitioner along with other accused persons was protesting in the public road against the implementation of the Citizenship Amendment Act and further demanded the Central Government withdraw the said Citizenship Amendment Act, without getting prior permission from the concerned authority. On the basis of the above-said allegation, the police registered the complaint and filed an FIR against the petitioner and others for the offences under Sections 143 and 188 of IPC. Quashing FIR Registered 188 COVID 19
The Counsel appearing for the petitioner submitted that according to Section 195 (1) (a) of Cr.P.C., no court can take cognizance of an offence under Section 188 of IPC unless the public servant has written order from the authority.
On the other hand, Additional Public Prosecutor appearing for the Police submitted that “Section 188 of IPC is a cognizable offence and therefore it is the duty of the police to register a case. Though there is a bar under Section 195(a)(i) of Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not mean that the police cannot register FIR and investigate the case. Moreover, the petitioner is a habitual offender by committing this kind of crimes. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.
The bench however observed that Section 195(1)(a) of the Criminal Procedure Code, 1973 states
“195.Prosecution for contempt of the lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (1) No Courts 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)of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant to whom he is administratively subordinate;..”
The Court hence said that it is very clear that for taking cognizance of the offences under Section 188 of IPC, the public servant should lodge a complaint in writing and other than that no Court has the power to take cognizance.
The bench further relying on the Judgement in the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, noted that the following guidelines have been provided with the insofar as an offence under Section 188 of IPC, is concerned:
- A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
- 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. and immediately thereafter, he has to inform about the same to the public servant concerned/authorized, 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.
- 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 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.
- The promulgation issue 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.
- The promulgation through which, the order is made known must be by something done openly and in public and private information will not be promulgation. The order must be notified or published by the beat of drum or in a Gazette published in a newspaper with a wide circulation.
- 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 when it reflects an offence.
- Under Section 172 to 188 of IPC. An FIR or a Final Report will not become void ab initio 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 Director-General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195 (1)(a)(i) of Cr.P.C.
Punjab and Haryana High Court Quashed The FIR Registered under section 188 of IPC. Quashing FIR Registered 188 COVID 19
The FIR was registered against the provisions of Cr. PC. The detailed procedure for registration of FIR has been discussed in the case titled Sandeep Gandotra…Petitioner Versus U.T. Chandigarh… Respondent registered vide CRM-M 7045/ 2019. Acts of the case are:-
A petition under Section 482 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’) was filed for quashing of F.I.R. No.205 dated 17.07.2018 registered under Section 188 of the Indian Penal Code (for short, ‘IPC’), at Police Station West Sector 11, Chandigarh.
Learned counsel representing the petitioner mainly contended that present F.I.R. has been registered under Section 188 IPC whereas the complainant, in this case, could be the District Magistrate only as per provisions of Section 195(1) Cr.P.C. because the provisions incorporated under Sections 195 to 199 Cr.P.C. are the exception to the general rule.
In such specified cases, the complaint in writing is required as per provisions of Section 195 Cr.P.C only. There is an absolute bar against the Court taking cognizance of the case under Sections 182/188 IPC except in the manner provided under Section 195 Cr.P.C.
Learned counsel representing the respondent-UT, Chandigarh has not disputed this legal proposition. A similar matter was before this Court in Jagtar Singh vs. Union Territory, Chandigarh, 1996(1) RCR 669, wherein this Court observed as under:-
“These facts are not disputed. Language of Section 195 (1) of the Code does not leave scope for any ambiguity and is the section which has to be construed strictly. In accordance with the settled principles of interpretation applicable to criminal jurisprudence, the provisions of Criminal Procedure Code or Penal Laws have to be strictly construed so as to be given meaning except what is intended by the Legislature in the language used itself. The relevant portion of Section is that “No Court shall take cognizance except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.” The intention appears to be clear that where an offence is committed under Section 188 Indian Penal Code, the Legislature has made it obligatory that the public servant before whom such an offence is committed, he will file a complaint to the Magistrate and the cognizance of the offence by the concerned Court is dependent upon the complaint in writing by such officer or an officer superior to such officer.”
As per above and as per provisions contained in Section 195 (1) Cr.P.C., the above-mentioned F.I.R. bearing no. No.205 dated 17.07.2018 registered under Section 188 IPC at Police Station West Sector 11, Chandigarh was declared to not maintainable and the same was quashed by the Hon’ble Court.
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