Shamsul Huda Bakavi v. State and Anr. [Order Accessible here]
CRL. O.P. No. 9487 of 2020 and CRL. M.P. Nos. 4258 & 4259 of 2020
High Court of Madras, Coram: HMJ G.K. Ilanthiraiyan, Decided on 26.06.2020
The year 2020 has been a roller coaster ride for the entire world and especially for India. Ranging from the protests against the controversial Citizenship Amendment Act to the implications of the COVID-19 lockdown, India has witnessed many great things on the legal front in the last six months itself. Also, this year, there has been a significant rise in the registration and filing of First Information Report (‘FIR’) under Section 188 of the Indian Penal Code, 1860 (‘IPC’).
On 31.01.2020, the Petitioner along with others was protesting against the Citizenship Amendment Act. Consequently, the police registered an FIR against the Petitioner and others for the offences under Sections 143 and 188 of the IPC. The Petitioner moved the Madras High Court by way of a Criminal Petition challenging the registration of the aforesaid FIR.
Observations and Decision
Relying on its judgment in Jeevanandham and others v. State rep. by the Inspector of Police, Karur District, the Madras High Court, vide its Order dated 26.06.2020 allowed the Criminal Petition thereby quashing the proceedings qua the petitioner in respect of the said FIR. Relying on the ratio of Jeevanandham and others, the Madras High Court in Shamsul Huda Bakavi quashed the FIR registered under Section 188 of IPC qua the Petitioner on the ground that the police is not competent to register an FIR for the offence under Section 188 of IPC. The Court inter-alia observed that the complaint against the Petitioner and others was bereft of the requirements of Section 143 of IPC.
However, the author confines the scope of the instant case comment to the position of Section 188 of IPC vis a vis Section 195 (1)(a) of Criminal Procedure Code, 1973 ( CrPC ). The bar imposed by Section 195 (1)(a) of the CrPC on Section 188 of IPC has always been a subject of a raging debate. Section 188 of IPC deals with the offence of ‘disobedience to order duly promulgated by public servant’. Section 195 of CrPC deals with ‘Prosecution for contempt of lawful authority of public servants….’
According to Section 195 (1)(a) of the CrPC, filing of a formal complaint to a Magistrate, by the public servant concerned or his superior is a sine qua non before the cognizance of the offence under Section 188 of IPC can be taken by the court. The apex court in State of U.P. v. Mata Bhikh and Ors observed that Section 195 of the CrPC is intended to protect persons from vexatious prosecution that may be initiated at the instance of ill-motivated private individuals. Here it is apposite to note that the word used in Section 195 (1) is ‘cognizance’. Therefore, it is often argued that Section 195 (1) (a) of CrPC bars only the cognizance and not the registration of FIR and its subsequent investigation.
In State of Punjab v. Raj Singh and Another, the Supreme Court of India also agreed with this argument and held that the power of police to investigate falls outside the purview of the bar imposed by Section 195 (1) of the CrPC. In B.S. Khatri v.State of Maharashtra and Ors, the Bombay High Court too opined that Section 195 (1) of the CrPC does not interfere with the power of police to register the FIR and its subsequent investigation. More recently, on 05.05.2020, the Supreme Court of India in Dr. Vikram Singh v. Union of India & Another, vide a non-speaking order, dismissed the petition seeking the quashing of FIRs registered under Section 188 of IPC.
However, Madras High Court has invariably been quashing FIRs registered for offences under Section 188 of IPC for want of a written complaint by the public servant concerned. Hence, there exist lacuna in the power of police for the registration of FIR and its subsequent investigation as far as the offences under Sections 172 to 188 of IPC are concerned. The contradictory judgments of State of Punjab v. Raj Singh (Supreme Court), Jeevanandham and others (Madras High Court) and B.S. Khatri (Bombay High Court) dealing with this issue give rise to a pertinent question – Whether the police is precluded from registering FIR of offences under Sections 172 to 188 of IPC?
Bar imposed by Section 195 (1) (a) of the CrPC on the power of police to register the FIR under Sections 172 to 188 of IPC
The judgment of Shamsul Huda Bakavi is the latest in line of numerous judgments of Madras High Court wherein, relying on Jeevanandham and others, the court has rightfully quashed the FIR registered for offences under Section 188 of IPC due to the embargo placed by Section 195 (1) (a) of the CrPC. The reasoning given in Shamsul Huda Bakavi aligns with the reasoning given by Madras High Court in several other judgments dealing with a similar issue. The author is in accord with the reasoning given by the Madras High Court.
The word ‘cognizance’ is nowhere defined in the CrPC. The literal meaning of ‘cognizance’ is ‘taking note of’, ‘becoming aware of’, ‘realization’ or ‘notice’. Magistrate takes cognizance of the offence when he applies his judicial mind for the purposes of proceeding in a particular way under Chapter XV or XVI of the CrPC. A Magistrate (of first-class or second class who is specially empowered in this behalf) can take cognizance of any offences in either of the ways mentioned in Section 190 of the CrPC.
A conjoint reading of Section 190 and Section 195 (1) (a) of the CrPC makes it clear that the courts cannot take cognizance of the offence under Section 188 of IPC through a police report [i.e. through Section 190(1) (b)] or through Section 190(1) (c)]. A written complaint by the public servant concerned is the only way by which a court can take cognizance of the offence under Section 188 of IPC. It is a well-settled principle that when a statute requires a thing to be done in a particular manner, it should be done in that manner or not at all.
Further, it is often argued that since a police officer is also a public servant within the meaning of Section 21 of IPC, therefore the police report filed by him under Section 173(2) of the CrPC shall be considered as a complaint for Section 195 (1) (a) of the CrPC. The author is of the opinion that this argument does not hold grounds as the expression ‘complaint’ as defined in Section 2(d) of the CrPC specifically excludes a police report. Further, as correctly opined by the Madras High Court, only a public servant who has been specially authorized in this behalf can file a complaint concerning the offences under Sections 172 to 188 of IPC. Therefore, a police report filed by a police officer does not qualify as a complaint for Section 195 (1) (a) of CrPC.
It is pertinent to note that as per the First Schedule of the CrPC, Section 188 of IPC is a cognizable offence. As per Lalita Kumari v. Govt of U.P., if the information discloses the commission of a cognizable offence, it is incumbent upon the police officer to register an FIR of the said offence. Thus, it is often argued that an offence under Section 188 of IPC being a cognizable offence, a police officer is bound to register an FIR for the same. This, in the author’s view, is a travesty of Section 195 (1) (a) of the CrPC.
Assuming and not suggesting this argument to be true, the author would like to take the readers’ attention to the following example: If for instance, a police officer registers an FIR for an offence under Section 188 of IPC, after the registration of FIR, the police officer will proceed with the investigation of the said offence as per Section 156(1) of the CrPC. The investigation will culminate in a police report under Section 173(2) of the CrPC. Here, the bar imposed by Section 195 (1) (a) of the CrPC will come into play and the court will be barred from taking cognizance of the offence under Section 188 of IPC based on a police report.
Therefore, as far as offences under Sections 172 to 188 of IPC are concerned, the absolute embargo placed by Section 195 (1) (a) of the CrPC, in the author’s view, would vitiate the whole purpose of registration of FIR and its subsequent investigation by the hands of the police as is provided under Chapter XII. Thus, in the author’s view, the police is precluded from the registration and the subsequent investigation of the FIR of offences under Sections 172 to 188 of IPC. However, a police officer or any other officer may be directed, by the Magistrate, to investigate the aforesaid FIR only after the cognizance of the complaint is taken and the complainant along with the witnesses thereof have been examined by the Magistrate.
Here, it is pertinent to note that the High Court of Madras in Jeevanandham and others issued certain guidelines concerning the offences under Sections 172 to 188 of IPC (Para 25). The court inter-alia directed that the police officers cannot register the FIR under Sections 172 to 188 of IPC. Further, as regards these offences, the court held that as per Section 41 of the CrPC, the power of the police officer will be restricted only to the preventive action and it will be incumbent upon the police officer to inform the concerned public servant so that such a public servant could file a written complaint before the Magistrate.
Though the reasoning given by Madras High Court, in the author’s view, appears to conform with Section 195 (1) (a) of CrPC but uncertainty still looms over the true interpretation of the said section due to the conflicting judgments given by the other High Courts. The question of the true interpretation of Section 195 (1) (a) of CrPC needs to be put at rest by the apex court once and for all.
About the Author, Ishaan [2017-20] is pursuing UG (Law) from Campus Law Centre, Faculty of Law, Delhi University.