SECTION 188 OF THE INDIAN PENAL CODE-APPLICABILITY & RELEVANCE OF SECTION 188 IN COVID-19 SITUATION
Updated: Jan 30
Author: Khushi, I year of B.B.A.,LL.B from The Northcap University.
As we all are well aware our country, as well as the whole world, is suffering from the adverse situation created due to the pandemic COVID-19. In order to control the situation as well as to curb the speed or spread of COVID-19 or its various variants, various guidelines and standard of procedures have been issued by the Central as well as the State government. In order to fulfil the aforesaid guidelines, the order in this regard is being passed by the various authorities which are required to be followed in the present situation. Every citizen is required to follow and obey the orders passed by the authorities from time to time. But we can see that the aforesaid orders are not being followed in their true spirit and are being violated. Now the question comes whether by violating such order any offence has been committed or not.
Section 188 of the Indian Penal Code deals with the disobedience to order duly promulgated by the public servant.
Definition of Section 188 of the Indian Penal Code
Whoever, knowing that, by an order promulgated by the 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 directions, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to 1 month or with fine which may extend to Rs 200, or with both;
And if such disobedience causes or tends 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 Rs 1000 or with both.
Every citizen of India has constitutional rights and with the rights, they are also required to obey the law of land. If any person commits any act which is in violation of the law that amounts to an offence and disobeying of any order duly promulgated by the public servant is being dealt with the aforesaid Section 188 of The Indian Penal Code.
Ingredients for the commission of an offence under Section 188 of The Indian Penal Code
Promulgation of an order must be in existence and it should be made by a public servant who was legally empowered to make such promulgation.
A direction should be there not to do certain things.
Offender must be aware of promulgation and the same was disobeyed by him.
Such disobedience has caused or tended to cause obstruction or annoyance, injury or risk of the same to a person lawfully employed or accused or tendered to cause danger to human life, health or safety or a riot or an affray.
According to the book ‘The Indian Penal Code’ by authors Ratanlal and Dhirajlal (19th edition), “There must be evidence that the accused had knowledge of the order with the disobedience of which he is charged. Mere proof of a general notification promulgating the order does not satisfy the requirements of the section. Mere disobedience of the order does not constitute an offence in itself, it must be shown that the disobedience has or tends to a certain consequence.”
The actual problem arises which is being debated nowadays in the legal circle. The argument is that an offence under Section 188 of the Indian Penal Code is a specified offence. Procedurally, envisaged in Section 195, CrPC, and therefore unless the requirements are satisfied no action can be initiated against any individual.
In this regard, the legal position can be understood with the following case laws.
In the case of Jeevanandham v. State, 2018 the Madras High Court held that it is mandatory to follow the procedure of Section 195 of CrPC, 1973 to prosecute an accused of an offence under Section 188 of IPC otherwise such action would be rendered as void ab initio. There must be a complaint by the public servant whose lawful order has not been complied with. The power of police officers is limited to preventive action and immediately he has to inform the concerned public servant to enable him to proceed with the complaint before the Court.
In the case of Jagdish and others v, the State of Haryana, 2015 the Punjab and Haryana High Court held that as per Section 195(1) of the CrPC, 1973 no FIR can be registered by the police unless there is a written complaint made by the public servant concerned and if made then the police report will be quashed for the offence under Section 188 of IPC.
Being the cognizable offence, the police have the power to take action to prevent such an offence from being committed and may arrest a person without a warrant as provided for in Section 41 of the Criminal Procedure Code. The police have the power to register an FIR and proceed to investigate such an offence and may proceed to prepare a report consequent to such investigation.
A person cannot take a defense that he has no knowledge that disobedience may cause harm. If he disobeyed the order the person is liable to be punished under this act. The actual harm or intention to harm others is not necessary for the commission of this offence. The mere fact that he disobeyed the order despite knowledge of the passing of such an order is sufficient to hold him liable for the commission of an offence. The offence under Section 188 of the Indian Penal Code is a cognizable and bailable offence. It is triable by any magistrate.
Recently, the Hon’ble Supreme court has quoted in its judgment that the people not wearing a mask in public spaces are violating the fundamental Right to Life of others. They may hamper the health of other people. There is a lack of will everywhere. Everybody is moving without masks in markets, malls, marriage, etc., and enhancing the fine may not suffice until there is proper implementation. In the present scenario, the administration is passing the orders to follow the COVID-19 protocols, to use masks in public places, and to maintain social distancing as well as to avoid unnecessary gatherings. If a person violates these directions in that case, it gave rise to a danger to human life, health, and safety of the public. Hence the violation of the same is an offence as provided under Section 188 of the Indian Penal Code and is punishable with simple imprisonment of 6 months or fine up to Rs 1000 or with both.