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Police can not register FIR for offence under Section 188 of IPC, observed Chhattisgarh HC



A single bench of Justice Sanjay K Agarwal of the Chhattisgarh High Court quashed an FIR registered against a doctor who was alleged to have violated the directions issued by the Collector in the wake of COVID-19.


The Court held that in case of an offence under Section 188 of the Indian Penal Code, 1860, an FIR can not be registered.


Section 188 of the IPC deals with disobedience of order of Public Servant and reads as under,


“Whoever, knowing that, by an order promulgated by a 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 direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished 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 of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”


The High Court noted,


“In order to prosecute an accused for the offence punishable under Section 188 of the IPC, it is imperative to undergo the procedure envisaged under Section 195(1)(a)(i) of the Code i.e. complaint in writing of public servant concerned or some other public servant to whom he is subordinate, otherwise cognizance of offence under Section 188 of the IPC cannot be taken and if this imperative procedure is not complied with, the entire prosecution for offence under Section 188 of the IPC would be rendered void ab initio, as Section 195 of the Code is an exception to the general rule contained in Section 190 of the Code wherein any person can set the law in motion by making complaint"

The State raised the contention that the police was competent to register the FIR as Section 188 IPC is a cognizable offence. To this contention, the Court stated that under Section 188 of the IPC, the Courts are barred from taking cognizance except upon a written complaint of the public servant concerned. The definition of "complaint" under Section 2(d) of the CrPC excludes a police report. The Explanation of Section 2(d) treats only the report submitted by the police in a non-cognizable offence as a complaint. But, Section 188 IPC is a cognizable offence, the Court observed.


The Court further stated,


“Merely because the offence under Section 188 of the IPC is cognizable offence, that by itself does not authorise the police officer to register FIR under Section 154 of the Code for such offence, the reason being that the registration of FIR would necessarily result in submission of police report under Section 173(8) of the Code which is specifically barred by Section 195(1)(a) read with Section 2(d) of the Code. The definition of "complaint" contained in Section 2(d) of the Code makes it clear that complaint does not include a police report."



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