LEGALITY OF FIRs FILED UNDER SECTION 188 OF IPC DURING LOCKDOWN

-by Ayush Shukla

The current global health crisis caused by COVID-19 has shaken the entire world. The ongoing global pandemic has forced the government to take some extraordinary measures in order to limit the spread of the deadly virus. Currently, the country is in lockdown and the central and state governments are trying their best to ensure strict compliance of the lockdown guidelines. Strict legal actions are being taken against those who are not following the lockdown rules. Numerous First Information Reports (FIRs) have been lodged under S.188 of the Indian Penal Code (IPC) against those who are violating the lockdown rules directed by the government. Section 188 of IPC covers offences related to the contempt of the lawful authority of public servants. It provides that any person who has the knowledge of the order passed by a competent public servant, disobeys such order, he shall be liable to be punished under section 188 of IPC. S.188 is a cognizable and bailable offence under the First Schedule of the CrPC. The legality of these FIRs has been challenged in the apex court. A PIL has been filed in the Hon’ble Supreme Court seeking quashing of all the FIRs filed under S.188 of IPC. This article examines the legality of FIRs filed under S.188.

FIRs are being filed under-

  • The Epidemic Diseases Act, 1897: The Epidemic Diseases Act was passed in 1897 to tackle the bubonic plague that broke out in Bombay. This act aims at preventing the spread of epidemic diseases. The Central government has advised all the state governments to invoke S.2 of the Act. S.2 states that “when at any time the State Government is satisfied that the State or any part thereof is visited by or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed. 3 of the Act states that if any person violates any regulation or order passed under the act, then he/she shall be liable for punishment under S.188, IPC. Section 188, IPC provides for imprisonment up to 6 months for disobeying an order promulgated by a public servant.
  • Indian Penal Code: 269, 270 and 271 of IPC are relevant during any pandemic. S.269 deals with any negligent act likely to spread infection or disease, dangerous to life. S.270 covers malignant acts likely to spread infection or disease, dangerous to life. S.271 provides punishment for disobedience to quarantine rules.

The petition has been filed by Dr Vikram Singh, Chairman of the Centre for Accountability and Systematic Change (CASC), in the Supreme Court seeking directions for quashing of the FIRs lodged under S.188 of IPC and for any other petty offences related to lockdown violation. More than 800 FIRs have been registered under S.188 of IPC in 50 police stations of Delhi. Uttar Pradesh police have filed 15,378 FIRs against 48,503 people. The petitioner, who himself was the Director-General of Police of Uttar Pradesh, contended that when the Supreme Court ordered the release of prisoners to reduce overcrowding in jails; police is burdening the criminal justice system by registering FIRs for petty offences. The petitioner approached the court to quash all these FIRs on the ground of procedural irregularity.

The petitioner submitted that S.188 of IPC cannot be read in isolation. It should be read with S.195 of CrPC which asserts that only a magistrate can take cognizance of an offence under S.188 of IPC. S.195 of CrPC states that no court shall take cognizance of offences punishable under S.188 of IPC except on the complaint submitted by the concerned public servant or some other public servant to whom he is administratively subordinate. The term complaint has been defined under S.2(d) of CrPC as “an allegation made orally or in writing to a magistrate against some known or unknown person who has committed an offence”. It also mentions that the complaint does not include a police report. Thus, it is implied that the court can only take cognizance of such offence when a written complaint has been filed before it by the concerned public servant.

The Supreme Court in the case of C. Muniappan v. State of Tamil Nadu interpreted S.188 of IPC and S.195 of CrPC and held that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. Moreover, the apex court held that the provisions of S.195 of CrPC are mandatory and non-compliance will lead to invalidation of trial and prosecution. The court cannot assume the cognizance of the case without such a complaint. In the absence of a complaint, trial and conviction will be void ab initio, being without jurisdiction. The Supreme Court in Ramlila Maidan case has said that mere disobedience of an order promulgated by a public servant will not be an offence until such disobedience leads to enumerated consequences under S.188 of IPC. Whereas the consequences of lockdown violation cannot be enumerated, therefore it will not attract the provision of S.188, IPC.

Interestingly, as this article was being written, the Supreme Court dismissed the PIL. The court questioned the petitioner as to how the lockdown would be ensured without invoking the said provision. Therefore, it can be concluded that the police have the power to register an FIR under S.188, IPC and to arrest the offenders without a warrant, it being a cognizable offence. However, a court can take cognizance of an offence under S.188, IPC only when a written complaint is filed before the court by the concerned public servant. Courts cannot take the cognizance of such offence on the basis of a final report or charge sheet filed by the police. Therefore, the police shall inform the concerned public servant of such offence, for him to be able to file a complaint before the court. Public servants can file a complaint based on the report prepared by the police after the investigation. Only then, the proceedings can be initiated against the offenders.

The views are personal.

Image Courtesy: VectorStock.

ABOUT THE AUTHOR

Ayush Shukla, first year student of B.A. LL.B. (Hons.) at Hidayatullah National Law University, Raipur.

Leave a Reply