Definition of IPC 188:
Disobedience to order duly promulgated by public servant.
Classification:
This section is Bailable, Cognizable and Non-compoundable.
Triable By:
Any Magistrate
Punishment:
According to Para 1 – Simple imprisonment for 1 month, or fine of 200 rupees, or both.
According to Para 2 – Imprisonment for 6 months, or fine of 1,000 rupees, or both.
Section 188 is a part of Chapter X of the IPC, which covers offences related to ‘contempt of lawful authority of public servants’. It lays down penalties for such contempt of orders of public servants like avoiding service of summons, non-appearance or non-attendance in response to an order, etc.
The provision specifically deals with the offence of disobedience to an order duly passed by a public servant.
Notably, mens rea or a guilty mind is not an essential requirement for commission of an offence under this section. What is required is knowledge of the order so contravene, and that such contravention may result in or is likely to result in actual harm.
The gravity of punishment under this Section varies with the severity of the consequences of the act:
If the disobedience of the order causes or tends to cause obstruction or annoyance or injury, or risk of the same, to a person lawfully employed, the offender might face a simple imprisonment of up to one month or fine up to Rs. 200, or both;
If such disobedience is of a greater nature, so as to cause or tend to cause danger to human life, health or safety, etc, the offender might face an imprisonment of up to six months and fine up to one thousand rupees or both.
Importantly, as per Section 320 of the Code of Criminal Procedure (CrPC), S. 188 is a non-compoundable offence.
Procedural Scheme around Section 188, IPC
By virtue of the First Schedule of the CrPC, S. 188 is made a cognizable and bailable offence. This, in the normal course of things, would mean that apart from powers of arrest without warrant which accrue to the police in such offences, the police can register a First Information Report (FIR) under Section 154, CrPC, and initiate investigation into such offence.
This would also then mean that on conclusion of investigation, the police can proceed to file a final report before the competent court under S. 173(2), CrPC, based on which the competent court can take cognizance and initiate trial.
However, here, Section 195 CrPC comes into the picture. This provision lays down a special procedural scheme related to taking cognizance by courts in relation to certain offences. S. 195(1)(a) provides that no court shall take cognizance of any offence punishable under S. 172 to S. 188 of the IPC except on a written complaint of the public servant concerned or of his superior.
As the other offences mentioned therein are non-cognizable, S. 195(1)(a) simply means that no private complaints can be entertained for these offences related to contempt of lawful authority of public servants.
However, this provision has distinctive consequences for the cognizable offence under S. 188, IPC. Along with barring private complaints, it also expressly bars a court from taking cognizance of this offence on the basis of a final report by the police.
This procedural twist in the enforcement of S. 188, IPC has been widely ignored, or say misunderstood, by police authorities, prosecuting agencies, and other state authorities. In their zeal to prosecute any offenders of public orders, the prosecution often straightway submits final reports, based on which the court takes cognizance of the offence. This is a travesty of the judicial process.
Unsurprisingly then, this issue has been a subject matter of much litigation, wherein the courts have had to repeatedly step in.
A case in point is C Muniappan and Ors v. State of Tamil Nadu, wherein the question of maintainability of prosecution under S. 188, IPC in the absence of a written complaint by a public servant came up for consideration before the Apex Court.
This was a case were multiple offences like murder, rioting, loss to public property etc. were also involved. The Court elucidated that in a case where the charge is under S. 188, IPC, cognizance by the Court, as provided for under S. 195, CrPC, can only be taken on the basis of a complaint in writing by the public servant whose lawful order had been contravened, and if not, the whole proceedings will stand vitiated and will be liable to be set aside.
The Apex Court also went into the object of S. 195, CrPC, observing,
“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."
The provision of S. 195, CrPC being mandatory, any non-compliance thereto, as has been held in a number of judgments over the years, would necessarily vitiate the entire prosecution.
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 judicial notice of the case except in the manner provided by the section.
Section 188, IPC – Arrest? FIR? Investigation?
One question, however, which has remained a subject matter of much debate is: how can the police register an FIR and investigate into the offence of S. 188, IPC as such investigation would naturally culminate into a final report under S. 173, CrPC which is rendered useless by the bar under S. 195, CrPC? And if not, can the police even arrest an offender under this section?
A recent judgment of the Madras High Court, Jeevanandham and Ors v. State and Ors, has further muddied the waters. In the said judgment, it has been held that the offence under S. 188 IPC being cognizable by itself does not enable the police officer to register an FIR, because such registration of an FIR has to necessarily end with a police report, the cognizance on which basis cannot be taken by the Magistrate due to the bar under S. 195, CrPC.
The Court thus held that in a case under S. 188, IPC the role of a police officer will be confined only to preventive action as stipulated under S. 41, CrPC and he cannot register an FIR, even though S. 188, IPC is a cognizable offence.
Subsequently, multiple other judgments of the Madras High Court have followed this reasoning and quashed not only the proceedings arising out of the final report, but also the FIR registered by the police.
Recently, a Public Interest Litigation has been reportedly filed before the Supreme Court seeking quashing of all FIRs registered under S. 188, IPC for violation of the current lockdown on this very ground, that in view of S. 195, CrPC, an FIR cannot be registered under this offence.
After all, the offence under S. 188, IPC does remain a cognizable one under the First Schedule of the CrPC. Thus, while the trial and even conviction can be set aside for contravention of S. 195, CrPC, the FIR and investigation by the police is not rendered illegal by any means.
The effect of S. 195, CrPC comes into operation only at the stage of taking of cognizance by the court under S. 190 CrPC; and there is no bar on the statutory power of the police to investigate into an FIR which discloses a cognizable offence.
The Supreme Court’s judgment in State of Punjab v. Raj Singh is the locus classicus here, wherein the Court held that
“…From a plain reading of Section 195 Cr.P.C. it is manifest that the bar under S. 195, CrPC 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 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. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1) (b) Cr.P.C…”.
This position of law remains coherent and has been followed by the Supreme Court and various High Courts in several judgments over the years.
भारतीय दंड संहिता की धारा 188
- IPC की धारा 188 के अनुसार, जो कोई भी किसी लोक सेवक द्वारा प्रख्यापित किसी आदेश, जिसे प्रख्यापित करने के लिये लोक सेवक विधिपूर्वक सशक्त है और जिसमें कोई कार्य करने से बचे रहने के लिये या अपने कब्ज़े या प्रबंधाधीन किसी संपत्ति के बारे में कोई विशेष व्यवस्था करने के लिये निर्दिष्ट किया गया है, की अवज्ञा करेगा तो;
- यदि इस प्रकार की अवज्ञा-विधिपूर्वक नियुक्त व्यक्तियों को बाधा, क्षोभ या क्षति की जोखिम कारित करे या कारित करने की प्रवॄत्ति रखती हो, तो उसे किसी एक निश्चित अवधि के लिये कारावास की सजा दी जाएगी जिसे एक मास तक बढ़ाया जा सकता है अथवा 200 रुपए तक के आर्थिक दंड अथवा दोनों से दंडित किया जाएगा; और यदि इस प्रकार की अवज्ञा मानव जीवन, स्वास्थ्य या सुरक्षा को संकट उत्पन्न करे, या उत्पन्न करने की प्रवॄत्ति रखती हो, या उपद्रव अथवा दंगा कारित करती हो, या कारित करने की प्रवॄत्ति रखती हो, तो उसे किसी एक निश्चित अवधि के लिये कारावास की सजा दी जाएगी जिसे 6 मास तक बढ़ाया जा सकता है, अथवा 1000 रुपए तक के आर्थिक दंड अथवा दोनों से दंडित किया जाएगा।
- ध्यातव्य है कि यह आवश्यक नहीं है कि अपराधी का आशय क्षति उत्पन्न करने का ही हो या उसके ध्यान में यह हो कि उसकी अवज्ञा करने से क्षति होना संभाव्य है।
