This article has been written by Bhavya Verma, a student of JIMS Engineering Management Technical Campus, School of Law.
Section 188 of Indian Penal Code, 1860 the disobedience of an order promulgated by a public servant lawfully empowered to do so in the public interest punishable. It refers to acts that though prima facie lawful, maybe in particular circumstances show a tendency to endanger the public tranquility by the obstruction, annoyance, or injury, or which cause any such risk to other persons. An order has been duly made and promulgated, although not strictly in accordance with the terms of the law and has been brought to the actual knowledge of the person sought to be affected by it, is sufficient to bring the case under this section.
The Ministry of Home Affairs issued lockdown guidelines which state that their violations will lead to an offense under Section 188 of the Indian Penal Code.
A research conducted by Centre for Accountability and Systematic Change (CASC) shows that between 23rd March 2020 and 13th April 2020, 848 FIRs under Section 188 of the Indian Penal Code in 50 police stations in Delhi have been filed. Uttar Pradesh Government’s submission in their twitter handle states that 15,378 FIRs against 48,503 persons under Section 188 of the Indian Penal Code has been registered.
Former Director-General of Police of Uttar Pradesh filed a petition seeking a writ of certiorari the Supreme Court stating that the registrations of the First Information Reports under section 188 of the Indian Penal code for alleged violations of lockdown guidelines is illegal as it violates Article 14 and 21 of the Indian Constitution. The petitioner submits that as per provisions of Section 195 of Code of Criminal Procedure, 1973 and various judicial precedents, under Section 188 of the Indian Penal Code no FIR can be registered. Cognizance of the offence by the Magistrate can be taken only on the basis of the expressed written “complaint” and not FIR by the officer abiding by Section 195 of the Code of Criminal Procedure. As per Section 2(d) of CrPC, a police report submitted pursuant to an FIR will not come within the meaning of “complaint”.
The petition states as that the petitioner himself was the DG(P) of Uttar Pradesh, he understands the police functioning, the pain and suffering of those who are caught. The petitioner expresses his concern that this will lead to an undue burden on police officers as they will have to do voluminous documentation.
The petitioner clarifies that there is no means of promoting the violation of the lockdown and states that “Police action on an individual who is perhaps suffering from distress and lack of information as a result of the circumstances has ramifications which can extend beyond the coronavirus lockdown, and cannot be good for constitutional democracy”. He further adds that “the situation needs to be handled humanely and it will be best to avoid adding aspects of criminality, wherever possible.
According to the petitioner, when the whole economy is going through India’s biggest emergency, burdening up the criminal justice system with more cases is not going to help anyone.
He prays to the Union of India to issue directions under the Disaster Management Act, 2005 to various State governments to refrain from filing FIRs or complaints under Section 188 of the Indian Penal Code for the petty offenses during the lockdown.