Author: Advait Shukla


Introduction

“And the law may be resembled to a nut, which has a shell and a kernel within; the letter of the law represents the shell, and the sense of it the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no benefit by the law, if you only rely upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in the shell, so the fruit and the profit of the law consists in the sense more than in the letter”[1]

To interpret a statute is to find the proper meaning so that it may be applied to a particular case.[2]

I came across an article, titled “The Legality of FIRs Filed U/s 188 IPC During Lockdown: What Is the Legal Ammunition of the Police to Control COVID 19”[3] The interpretation of Section 188 r/w. 195 by the author in that article is quite similar to the interpretation of this article, as done by the Hon’ble Bombay High Court (Aurangabad Bench) in the case of decision Shrinath Giram v. State of Maharashtra[4]. Bombay High Court in the said case stated that,

“On conjoin reading of the provision of Section 188 of IPC and Section 195 of Cr.P.C., it is evident that if the alleged offence is punishable under Sections 172 to 188 of IPC, the court cannot take cognizance except on a complaint in writing of the public servant concerned, or some other public servant, to whom he is administratively subordinate. In such peculiar circumstances, no FIR could have been registered by the police for an offence punishable under Section 188 of IPC. The legislative intention appears to be clear from the language of section 195(1) of Cr.P.C. itself, which categorically prescribes that where an offence is committed under Section 188 of IPC, it would be obligatory for the public servant before whom offence is committed, to file a complaint before the concerned Magistrate having jurisdiction to take cognizance of it.”[5]

In my humble opinion, the above-mentioned interpretation of the provisions defeats the purpose of Section 188. Both, the above-said decision and the Opinion, are contrary to the two landmark decisions of the Hon’ble Supreme Court of India. This article is an attempt to make a purposive and harmonious construction of the statutory provisions.

Interpretation of the Provisions:

Section 188 of Indian Penal Code penalises any Disobedience (caused) to order duly promulgated by public servant. As per the Report of the Drafting Committee headed by Lord Macaulay, Section 188 was enacted to empower the local authorities to forbid acts which these authorities consider dangerous to the Public tranquillity, health, safety, or convenience.[6] Section 188 granted wide powers to Public Servants and Section 195 of Cr.P.C. was, therefore, brought by the Procedural Law with an object to protect persons from being needlessly harassed by vexatious prosecutions in retaliation. It is a check to protect innocents from criminal prosecutions which may be actuated by malice or ill-will. [7]

Section 195 of Code of Criminal Procedure reads as follows:

“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860) …

…except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.”

The bare reading of Section 195 makes it clear that for the purpose of Prosecution and trial by the Court under the offences punishable under Sections 172 to 188 of IPC, a written Complaint of the Public Servant is mandatory. The intention of the legislature behind Section 195 is enunciated in another case of Apex Court in C. Muniappan & Ors vs State of Tamil Nadu[8]:

The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. 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. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. 

 Based on the above decision, it becomes clear that the legislature intends to bar the prosecution of any offence and NOT the investigation itself. The offence under Section 188 of IPC is a cognizable offence, and it is, therefore, a duty of the police to register the information disclosing the offence as required under section 154 of the Code. The bar, however, is on the prosecution and on the Court taking cognizance, which requires a Complaint in writing by the Public Servant concerned to take cognizance as a precondition. The said fact is not a hindrance on the power of Police to investigate. The stage of taking cognizance and the stage of the investigation by Police based upon an FIR are two distinct stages. The Hon’ble Apex court has taken a similar view in two of its landmark decisions.

1. State of Punjab vs Raj Singh And Anr[9]. A bench comprising of Justice K.T. Thomas and Justice M.K. Mukherjee had observed as follows:

“We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 467 and 468 I.P.C. by Chem in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. 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) 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 accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. 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. , but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down tin section 340 Cr. P.C. The judgment of this Court in Gopal Krishna Menon and Anr. Vs. D. Raja Reddy [AIR 1983 SC 1053], on which the High Court relied, has no manner of application to the facts of the instant case for their cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the Civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195 Cr. P. C.”

2. A similar view was taken by the Apex Court again in Narayandas vs State Of Karnataka And Ors. [10] after referring to the decision in Raj Singh:

“Not only are we bound by this judgment but we are also in complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Criminal procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 Criminal Procedure Code is followed.

Therefore, in light of the above, any Interpretation contrary to the said Interpretation by the Hon’ble Apex Court will defeat the intention of the legislature. It appears that the Bombay High Court in its decision Shrinath Giram v. State of Maharashtra[11] has not taken into consideration the above-mentioned judgments of Hon’ble Apex Court.

The bar is only on taking cognizance and not on recording the information and investigating thereupon. Further, any Complaint in writing as required under Section 195 of Cr. P. C. has to be given to the Court for it to take cognizance. Based on the above-mentioned decision, a Public Servant whose order has been breached could then file a complaint for the offence on the basis of the FIR and the material collected during the investigation by the Police.

In order to interpret this in the present context of the pandemic, the Public Servant who promulgates the order, will not be able to know each and every breach of his/her order. Therefore, upon an FIR and after the investigation, when the said fact disclosing offence will be brought to his notice, then he will be able to file a complaint based on the facts disclosing specific breach of his order. Unless police will investigate the facts disclosing the offence, the fact of breach of order cannot be brought to the notice of the concerned Public Servant.

Conclusion & Solution

It is a duty of Police to record the offence disclosed to him and to investigate thereupon. Therefore, FIRs recorded under section 188 are NOT per se invalid. The mandate of S. 195 comes into the picture at the stage of the court taking cognizance, which will require a written Complaint before prosecuting the Accused.

Therefore, along with the Final Report, the written Complaint of the Authority promulgating the order, as required under S. 195 can be filed. Additionally, the said Complaint shall be by the Concerned Public Servant who has promulgated the order whose breach has led to an offence, and it shall also disclose the facts that show the breach of the said order and the consequences ensued. As long as the Written Complaint disclosing the ingredients and facts of the offence committed by the person to be prosecuted are mentioned, and the said Complaint forms a part of the Final Report of Police submitted at the end of the investigation, then the purpose of Section 195 as contemplated by the legislature will not be defeated. Otherwise, the provisions of Section 188 would remain dead letters of the law.

      In the end, the settled position of law says, that the duty of the procedural law is to aid the substantive law and not to defeat its purpose, therefore section 195 though mandatory does not hinder the power to record information/FIR and to investigate, and has to be strictly construed in order to bar only the cognizance of the offence at the stage of filing of Final Report or at the stage of taking cognizance by the Court. This interpretation will uphold the legal principle of Ratio legis est anima legis (the reason behind the law is the soul of law).


[1] Eyston v. Studd, 2 Plowden at 465, 75 Eng. Rep. at 695.

[2] Frederick J. De Sloovere, Contextual interpretation of statutes, 5 Fordham L. Rev. 219 (1936).

[3] https://www.livelaw.in/columns/the-legality-of-firs-filed-us-188-ipc-during-lockdown-what-is-the-legal-ammunition-of-the-police-to-control-covid-19-155543.

[4] 2018 ALL MR (Cri) 325.

[5] Id, para 9.

[6] Lord Macaulay Report, RATANLAL AND DHIRAJLAL, THE INDIAN PENAL CODE, 900 (32nd ed. 2010).

[7] Golam Hussain v. Commissioner of Police, Calcutta, AIR 1974 SC 1336.

[8] (2010) 9 SCC 567

[9] AIR 1998 SC 768.

[10] (2003) 11 SCC 251

[11] 2018 ALL MR (Cri) 325


About the Author: Mr Advait is a practicing advocate in Sessions Court, Mumbai and Bombay High Court (on criminal appellate side)


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