Introduction:
With the onset of nationwide lockdown following the COVID-19 pandemic caused by the coronavirus, various incidents of misuse of powers of authorities have come in front. Various photos and videos have surfaced on the internet and the TV news channels portraying the arrogance by the police officials against the general public. Various incidents of police filing F.I.R.s, against the general public, without following the due specified process have also come into notice. There have been various incidents where the powers of the police in the same has been questioned and still misuse of power can be seen. Recently a PIL titled Vikram Singh vs Union of India (2020) was filed in the Supreme Court addressing the same issue and had demanded to quash FIRs registered under Section 188 of IPC for violation of lockdown orders. But the same was dismissed by the court.
This paper aims to discuss and make the reader aware of the same by specifying powers of a public servant, the process that should be followed, what are the respective sections, etc.
Section 188 IPC
Section 188 of the India Penal code talks about the disobedience to order duly promulgated by public servant i.e. this section specifies the punishment that a person can be awarded if he is found violating or disobeying any order by laid down by public servant. The statement of the said act is read as −
“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 two hundred rupees, or with both.
And if such disobedience causes or trends 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 six months, or with fine which may extend to one thousand rupees, or with both.”
This states that the public servant i.e. with respect to our article police can arrest or fine a person; who is found violating or disobeying any order laid down by the public servant. The quantum of punishment may vary depending upon the degree of disobedience caused. For example, 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 defined in this section.[1] Hence to conclude, the section gives the police (with reference to our article) to arrest or punish those; who disobey the public servants’ orders.
Section 195 of CrPC
Section 195 of Criminal Procedure Code, 1973 talks about the procedure to be followed by the court. It also states an exception that the court can take cognizance; only in matters where a complaint is filed by the public servants against the person who disobeys the orders. The first part of the section is read as−
“No Court shall take cognizance-
(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, or 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 concerned or of some other public servant to whom he is administratively subordinate………….”
To conclude in brief the section lays down that to take any action against the person; who has violated the orders. The public servant has to file a complaint to the court. Of which the court will then decide what necessary action is to be taken. No public servant or police officer has a right to file a direct FIR. As has happened in the case cited above. This procedure as specified by the CrPC is a mandatory procedure i.e. to be followed by all public servants.
The Conflict
The conflict between Section 188 IPC and Section 195 CrPC is that under Section 188. The police can register an FIR and follow the usual procedure thereafter. However, under section 195 of CrPC, the court cannot cognizance of any offence punishable; under Sections 172 to 188 IPC; unless a complaint in writing has been given to the court by a public authority concerned. Therefore, this makes the usual procedure of registering FIR, investigation, final report and consequent cognizance unneeded.
In the case of Jeevanandham vs State[2], the Madras High Court held that since cognizance under Section 195 is to be taken on a complaint in writing for an offence under Section 188 IPC, the police should not register an FIR under Section 188 IPC, because the same would lead to a police report. This is an exercise in ineffectuality as a complaint does not include a police report as per Section 2 (d) of the CrPC[3]. Further, the court stated that in a case under Section 188 IPC. The Police officer has the power to take action under Section 41 of CrPC. As a matter of preventive action, once the procedure enumerated under Section 195 (1)(a) of CrPC is followed. This was reiterated in the case of R Anand Sekaran vs State[4] through the Inspector of Police Tuticorin.
In the Jeevanandham case the court has also described the object of the provision as follows:
“The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution.”
In Raj Singh vs State[5], the Supreme Court held that “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) CrPC., and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognizable offence. In other words, the statutory power of the Police to investigate under the Code is not in any way control or circumscribed by Section 195 CrPC.”
It can be observe from the above that, on one hand. The court has held that there is no bar on exercise of statutory power by the Police on; matters of arrest, investigation and giving a final report. Yet, on the other hand, it has held that the court cannot take cognizance; on basis of the charge sheet filed. Thus makes the whole exercise of registering FIR, investigation, and final report useless.
Conclusion
As we have observed, Section 188 is a cognizable offence. In a cognizable offence the usual procedure is that, upon receiving the information regarding the commission of an offence, an FIR is to be registered. After this an investigation takes place and a final report/closure report is prepare accordingly.[6] Now the problem that will arise if we adopt this default approach while dealing with an offence which is punishable under Section 188.
This conflict arises, as we have understood above, due to the hindrance created by Section 195 (1)(a) CrPC. To overcome this conflict, we could deviate a bit from the usual procedure. That is to say, once an offence under Section 188 is commit registration of FIRs, investigation and preparation; of the final report could be in the usual manner. However, along with the final report the public servant who had promulgated the order shall also give a complaint in writing to the court. If we go by the ruling of the Madras High Court in Jeevandhanam case. The High Court does not seem to accept this suggestion; even when this suggestion seems to be suitable in the current scenario.
The informal preliminary investigation done by the police right after having received an informal complaint is better than the investigation done in the regular process considering the importance of time. The problems are that being a complainant and an investigator for the police may lead to an argument that the police are bias. But this need not be the case because the ultimate authority lies with the court to decide on the matter. The administratively superior authority mentioned in Section 195(1)(a) CrPC can supervise the same and can prevent any such arbitrariness and unfairness. Even if there remains any irregularity then the court is empowered enough to reject the findings of the investigation and order fresh investigation.
This way both the provisions can operate together rather than one being operative to the exclusion of others. A harmonious interpretation has been a very important rule of interpretation which allows both the conflicting provisions to operate.
References:
[1] Illustration under section 188 of Indian Penal Code 1860.
[2] Jeevanandham vs State[2], Crl. OP (MD) No. 1356 of 2018.
[3] Definition of complaint.
[4] R Anand Sekaran vs State, 2019 Indlaw MAD 5177.
[5] Raj Singh vs State, (1998) 2 SCC 391.
[6] Retrieved From: https://theleaflet.in/the-conflict-between-section-188-ipc-and-section-195-crpc/#:~:text=After%20this%20an%20investigation%20takes,closure%20report%20is%20prepared%20accordingly.&text=That%20is%20to%20say%2C%20once,done%20in%20the%20usual%20manner.
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