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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. ANAND VENKATESH, J.
Jeevanandham & Others - Petitioners
Versus
State rep. by Inspector of Police, Karur District & Another - Respondents
CRL.OP (MD) Nos. 1356, 14873, 11834, 14785, 15529, 15644, 15621, 15866, 16244, 16208, 16075, 11836, 14846, 15645, 15655, 12684, 15709 & 15710 of 2018 & Crl.M.P.(MD) Nos. 582, 583, 6963, 6964, 5374, 5375, 6559, 6855, 6856, 6923, 6924 & 7033 of 2018
Decided On : 20-09-2018
OFFENCE UNDER SECTION 188 OF IPC - PROCEDURE TO BE FOLLOWED - GUIDELINES ISSUED - FIR CANNOT BE REGISTERED BY POLICE - COMPLAINT TO BE FILED BY PUBLIC SERVANT - COGNIZANCE BY MAGISTRATE ONLY ON COMPLAINT - FINAL REPORT FOR OFFENCE UNDER SECTION 188 OF IPC IS VOID AB INITIO - POLICE OFFICER CANNOT INVESTIGATE OFFENCE UNDER SECTION 188 OF IPC - ONLY PREVENTIVE ACTION UNDER SECTION 41 OF CR.P.C. PERMITTED - INFORMANT AND INVESTIGATOR CANNOT BE SAME PERSON.
Fact of the Case:
A flurry of cases registered by the Police under Section 188 of Indian Penal Code [IPC], along with other offences became a subject matter of challenge before the Court on a daily basis. Despite earlier decisions with regard to the manner in which an offence under Section 188 of IPC can be proceeded against certain persons who are alleged to have committed the said offence, and who has to file a complaint with regard to such an offence, has been spelt out in those decisions. Despite the same, the Police continue to register an FIR under Section 188 of IPC along with other 5 offences.
Finding of the Court:
1. A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC. 2. 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. 3. 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. 4. 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. 5. 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 a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police. 6. The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation. 7. 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 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. 8. 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.
Issues: 1. Whether a Police Officer can register an FIR for an offence under Section 188 of IPC? 2. Whether a Police Officer can investigate an offence under Section 188 of IPC? 3. Whether a Magistrate can take cognizance of a Final Report for an offence under Section 188 of IPC? 4. Whether the informant and the investigator can be the same person in a criminal prosecution?
Ratio Decidendi: 1. A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC. 2. 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. 3. No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. 4. 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.
Final Decision: 1. All the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed. 2. The FIR in Cr.No.4 of 2018 is hereby quashed and Crl.O.P.No.14846 of 2018 is allowed. 3. The FIR in Crime No.112/18 is hereby quashed and Criminal Original Petition is allowed. 4. The FIR in Crime No.99 of 2018 is hereby quashed and Crl.O.P.No.15655/2018 stands allowed. 5. All the Criminal Original petitions are allowed, and the Final Report filed in each of the case is hereby quashed.
An important issue has arisen for consideration in these batch of cases. It is seen that a flurry of cases registered by the Police under Section 188 of Indian Penal Code [IPC], along with other offences becomes a subject matter of challenge before this Court on a daily basis. In spite of certain earlier decisions with regard to the manner in which an offence under Section 188 of IPC can be proceeded against certain persons who are alleged to have committed the said offence, and who has to file a complaint with regard to such an offence, has been spelt out in those decisions. Despite the same, the Police continue to register an FIR under Section 188 of IPC along with other 5 offences. Therefore, this Court thought it fit to discuss the law on the point in detail and give certain guidelines to be followed in future by the Police while dealing with an offence under Section 188 of IPC.
2. The provision under Section 188 of IPC is extracted hereunder :
“188. Disobedience to order duly promulgated by public servant.—
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”.
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.
Lord Macaulay's Report on this provision will be of some interest before proceeding to deal with the provision. The same is extracted 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
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