Police Cannot Register An FIR Under Section 172 to 188 IPC: Madras HC
Let us first understand Section 188 of IPC and Section 195(1)(a) of CrPC:
Section 188 of IPC talks about “Disobedience to order duly promulgated by public servant” and is punishable 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 which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 195 of CrPC talks about “Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence”
Sec 195(1)(a) says that no Courts hall take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
Facts of the case:
In this case the petitioner along with other accused persons were protested in the public road against the implementation of the Citizenship Amendment Act and further demanded the Central Government to 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. Aggrieved by it, Petitioner filed Criminal Original Petition filed under Section 482 of Cr.P.C for quashing of an FIR.
Petitioner further 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. Further he submitted that the petitioner or any other members had never involved in any unlawful assembly and there is no evidence that the petitioner or others restrained anybody. Therefore, he sought for quashing the proceeding.
The Additional Public Prosecutor appearing for the state submitted that the petitioner along with others staged protest and there are specific allegations as against the petitioner to proceed with the trial. Further, he 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.
While quashing the FIR, the HC referred to the case of Jeevanandham and others Vs. State rep. by the Inspector of Police, Karur District, in which Madras HC has issued the guidelines for an offence under Section 188 of IPC:
a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.
b) 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.
c) 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.
d) 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;
Quashing Order by the Madras HC:
In the present case, the Madras HC said that the First Information Report has been registered by the respondent police for the offences under Sections 143 and 188 IPC. He is not a competent person to register FIR for the offences under Section 188 of IPC. As such, the First Information Report or final report is liable to be quashed for the offences under Section 188 of IPC. Further, the complaint does not even state as to how the protest formed by the petitioner and others is an unlawful protest and does not satisfy the requirements of Section 143 of IPC.
Therefore, on the basis of above findings the High Court quashed the FIR.
Read Complete Order: Click Here