By: Mr. Rakesh Kumar Singh
Government apparently for saving human lives has introduced certain specific measures in the drastic period of Corona spread and these cumulative measures have come to be popularly known as lockdown. Unfortunately, however, some persons have been defying the lockdown instructions which prompted the police to take action against various provisions of law. Once of such provisions being invoked by the police is Section-188 of the Indian Penal Code. Police is regularly registering FIRs for this offence throughout the country and investigating the matter. Such action of police has not met with approval in certain sections of legal fraternity on the premise that the offence being of a special kind, the police would have no power to directly initiate action against such violation and has to approach the court for such purpose. This paper is humble attempt in understanding the scope of legal debate on the issue in hand.
2. Section-188 Indian Penal Code (IPC for short) reads “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 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 one thousand rupees, or with both. Explanation.-It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm”.
3. A bare perusal of Section-188 will go to show that violation of lockdown certainly comes under its ambit and therefore is punishable as such. Therefore the only issue is as to how action can be initiated for such violation. It is the Code of Criminal Procedure which deals with the procedural part in respect of offence punishable under IPC. Section-4(1) says “All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained”. It is therefore clear that even an offence under Section-188 has to be investigated, inquired into, tried, and otherwise dealt with as provided in CrPC.
3.1. As far as the scheme of the Code of Criminal Procedure (hereinafter referred to as the 'Code') is concerned, it is essential to point out that it demarcates the offences into two categories, namely, cognizable and non-cognizable offences. Section 154 of the Code prescribes that in respect of every offence which is a cognizable one, information thereof is to be given to an officer in-charge of a police station, who shall reduce the same into writing. Thus, it is the duty and responsibility of the police authorities to register a First Information Report. Sub- section (3) of Section 154 further obligates the higher police authorities to investigate the same as per the manner prescribed in subsequent sections. After completion of investigation, the police is required to submit its report to the Magistrate, who is empowered to take cognizance of the on police report, under Section 173 of the Code. On the other hand, Section-155 deals with the non-cognizable offences and provides that police cannot directly investigate such offences unless there is an order of a Magistrate.
3.2. We have therefore to find out the nature of offence punishable under Section-188. As indicated above, it is the CrPC which classifies the offences punishable under the IPC in cognizable and non-cognizable offences. If we look at the Schedule appended to Code, we will find that offence under Section-188 IPC has been classified as cognizable. Meaning thereby that we are not concerned for the scheme provided for non-cognizable offences. As such, all consequences of cognizable offence shall be applicable even to Section-188 IPC.
3.3 Once it is known that offence under Section-188 is cognizable, Section-154 CrPC will come into play which obligates the Officer in-charge of a police station to reduce the information if given, into writing. Such information is popularly called as FIR and the natural consequence of an FIR is launching of investigation unless for some specific reasons it is not done so by virtue of Section-157 CrPC. We are here not concerned with the exception provided in Section-157 in which Officer-in-charge may not investigate the matter.
3.4. The question primarily here is as to whether Officer in-charge can refuse to register an FIR even if the information discloses a cognizable offence. Section-154 does not say so. Rather its language is mandatory in character as “shall” has been used. The issue was under consideration of a constitution bench of Supreme Court in Lalita Kumari vs State of UP 2014 (2) SCC 1 wherein it mandated that once it is found that information so given discloses a cognizable offence, there remains no discretion with the police not to register an FIR. Though certain categories were carved out for a justifiable preliminary inquiry due complexity but even that exception was no on merits but in respect of finding the nature of information as to whether it discloses cognizable offence or not. It is clear that in no case the police can refuse to register FIR once it has found that the information shows cognizable offence. Neither Section-154 nor the Lalita Kumari case ever said that police can refuse to register FIR of a cognizable offence on he basis of machinery provided for cognizance, inquiry, trial etc.
4. It is at this stage that the actual problem arises which is being debated now a days in the legal circle. Argument is that offence under Section-188 IPC is a specified offence procedurally envisaged in Section-195 CrPC and therefore, unless the requirements thereof are satisfied, no action can be initiated against any individual. To understand the scope of the provision in true sense, we need to go through the same carefully. Section-195(1) CrPC to the relevant extent reads as “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”.
4.1. What is being emphasized is that a court is precluded from taking cognizance of offence under Sectoin-188 unless the public servant or his superior files a complaint in writing for the violation and therefore, the police cannot initiate an action by registering FIR & investigating the matter.
4.2. The emphasis so claimed is rather attractive at first glance but losses its merit once proper scope of the provision is ascertained. Code of Criminal Procedure has defined the terms inquiry and investigation but has not said anything about the terms cognizance and trial. For our present purpose, the terms investigation and cognizance are relevant, former is a defined term whereas later is not so defined. Investigation has been defined as proceeding conducted for collecting evidence and it specifically has excluded the activities of a Magistrate. Supreme Court has repeatedly indicated that cognizance is concerned with a Magistrate/Court when it applies its mind for proceeding further in matter of an offence. It is therefore clear that investigation and cognizance are different terms having different meaning and apply at different stages.
4.3. Section-195 CrPC creates an embargo on the court from taking cognizance. It does not talk about action of police or power of a police officer. At what stage, the embargo of Section- 195 will come is very significant. If its applicability can be invoked even prior to the stage of cognizance, we can talk about the impact on investigation; otherwise, it cannot infringe the powers of police during investigation of an offence.
4.4. A three judges bench of Supreme Court in M.L. Sethi vs R.P. Kapur AIR 1967 SC 528 while dealing with similar provision in old CrPC has held that the stage of raising a question is that of cognizance. It has observed “In dealing with this question of law, the important aspect that has to be kept in view is that the point of time at which the legality of the cognizance taken has to be judged is the time when cognizance is actually taken under Section 190 CrPC Under the Code of Criminal Procedure which applies to trials of such cases, the only provision for taking cognizance is contained in Section 190. Section 195, which follows that section, is in fact, a limitation on the unfettered power of a Magistrate to take cognizance under Section 190. Under the latter section, cognizance of any offence can be taken by any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf (a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed. In the present case, the Judicial Magistrate at Chandigarh had before him the complaint filed by the respondent, and if Section 190 stood by itself he was competent to take cognizance of it under clause (a) of sub-section (1) of that section. This power of taking cognizance was, however, subject to the subsequent provisions contained in the Code of Criminal Procedure including that contained in Section 195…….. This sub-section thus bars any court from taking cognizance of the offences mentioned in clauses (a), (b) and (c), except when the conditions laid down in those clauses are satisfied. In the case of an offence punishable under Section 211 IPC, the mandatory direction is that no court shall take cognizance of any offence punishable under this section, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on the complaint in writing of such court or of some other court to which such court is subordinate. This provision in clause (b) of sub-section (1) of Section 195 is thus clearly a limitation on the power of the court to take cognizance under Section 190. Consequently, it is at the stage when the Magistrate is taking cognizance under Section 190 that he must examine the facts of the complaint before him and determine whether his power of taking cognizance under Section 190 has or has not been taken away by clause (b) of sub-section (1) of Section 195 CrPC”.
4.5. From the aforesaid judgment, it is clear that the issue related to the embargo of Section- 195 cannot be raised prior to the time when the cognizance is taken by the court. Police has no concern with the cognizance part. Whether a court will take cognizance or not is not for police to decide. CrPC has demarcated specific fields for the police and court in different matters related to an offence. Whereas court has no power to intervene in the plenary jurisdiction of police to investigate an offence, the police have no power to intervene in the matter of cognizance to be taken by the court. It is for this reason that several decisions have clarified that court is not bound by the opinion of police in the police report and it can apply its mind and come to a different conclusion.
5. It is not as if the Supreme Court did not have any occasion to consider the issue from the perspective of investigation and cognizance. We know that Section-195 CrPC creates bar on cognizance in respect of several offences if committed in a particular framework. Like, if a fraud is committed in a document which is available in a court proceeding, the embargo of the\ provision will come into effect. However, the offence of fraud is a cognizable one.
The question is: Can we say that the police cannot register FIR for such a cognizable offence?
5.1. Supreme Court has answered this very specific issue in State of Punjab vs Raj Singh, reported (1998) 2 SCC 391 wherein it has clearly observed as “We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467, and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(l)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC 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. PC; and it has nothing to do with the statutory power of the Police to investigate into an FIR which discloses a cognizable 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 proceedings 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.PC. 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) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalkrishna Menon v. Raja Reddy, [1983] 4 SCC 240 : [1983] SCC (Cri) 822 : AIR (1983) SC 1053 on which the High Court relied, has no manners of application to the facts of the instant case for there 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.PC”.
5.2. The aforesaid judgment was quoted with approval in a subsequent decision by the Supreme Court in M. Narayandas vs State Of Karnataka AIR 2004 SC 555 with observation “We are unable to accept the submissions made on behalf of the Respondents. Firstly it is to be seen that the High Court does not quash the complaint on the ground that Section 195 applied and that the procedure under Chapter XXVI had not been followed. Thus such a ground could not be used to sustain the impugned judgment. Even otherwise there is no substance in the submission. The question whether Sections 195 and 340 of the Criminal Procedure Code affect the power of the police to investigate into a cognizable offence has already been considered by this Court in the case of State of Punjab v. Raj Singh, reported in [1998] 2 SCC 391……. 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. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected”.
5.3 The case of Narayandas(supra) was relied upon by the Supreme Court subsequently in a context different than Section-195 to arrive at a conclusion that there is no bar on police to investigate a cognizable offence even if the court was to take cognizance on a complaint of specific person. This case was titled as Vishal Agrawal vs Chhattisgarh State Electricity Board (2014) 3 SCC 696 wherein it was observed “We would like to discuss here the judgment in the case of In M. Narayandas v. State of Karnataka and Ors.2004 CriLJ 822, which has direct bearing on the issue at hand. The question arose as to whether Section 195 and Section 340 of the Code. affect the power of police to investigate into a cognizable offence. Section 195 provides for prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. It also states that no Court shall take cognizance of the offences specified therein except on a complaint in writing of that Court or of some other Court to which that Court is subordinate. Section 340 of the Code prescribes the procedure as to how the complaint may be preferred under Section 195 of the Cr.P.C. Alleging that the accused had committed an offence under Section 195, the complainant had made a complaint to the police and police had initiated investigation thereon. The accused/respondent had contended that since the case was filed under Section 195 of the Code it was provisions of Chapter XVI of the Code which would apply and not Chapter XII thereof (relating to investigation by the police). This contention was rejected…”.
5.4. We therefore cannot say that Narayandas and Raj Singh cases cannot apply to the issue in hand as they relate to Section-195(1)(b) and not to Section-195(1)(a) CrPC. In both these provisions, there is no difference in respect of the basics. Both are subsidiary of a broader theme that is a court is precluded from taking cognizance of offence unless a complaint in writing is given by the specified person. Clause-(a) and Clause-(b) simply provides for different kind of specified persons who can file such a written complaint.
6. The judgment in Vishal Agrawal vs Chhattisgarh State Electricity Board (2014) 3 SCC 696 may be further looked into as in that case also cognizance of specific offence could have been taken on a written complaint and one of the point pertained to the police investigation of such offence. Supreme Court was dealing with un-amended provision of Electricity Act which contemplated that only upon a complaint in writing by specified person, a court can take cognizance. To be precise, Section-151 of Electricity Act (un-amended) reads as “No Court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by appropriate government or appropriate Commissioner or any of their officer authorized by them or a Chief Electrical Inspector or an Electrical Inspector or Licensee or the generating company, as the case may be, for this purpose”. Dealing with this provision, the Supreme Court observed “Thus, the clear principle which emerges from the aforesaid discussion is that even when a Magistrate is to take cognizance when a complaint is filed before it, that would not mean that no other avenue is opened and the complaint/FIR cannot be lodged with the police. It is stated at the cost of repetition that the offences under the Electricity Act are also to be tried by applying the procedure contained in the Code. Thus, it cannot be said that a complete machinery is provided under the Electricity Act as to how such offences are to be dealt with. In view thereof, we are of the opinion that the respondent's Counsel is right in his submission that if the offence under the Code is cognizable, provisions of Chapter XII containing Section 154 Cr.P.C. and onward would become applicable and it would be the duty of the police to register the FIR and investigate into the same”.
6.1. A three judges bench of the Supreme Court has approved the reasoning of Vishal Agrawal case in its order titled Ganesh Ghosh vs the State Of West Bengal dated 15.10.2019 with observation “We have heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents at length today. During the course of hearing, we have been informed by the learned counsel appearing for the parties that the issue raised in this Criminal Appeal has already been considered by the Division Bench of this Court in “Vishal Agrawal and Another Versus Chhattisgarh State Electricity Board and Another” {(2014) 3 SCC 696} and subsequently in “Union of India Versus Mustaq Alias Mustafa And Others” [(2016) 13 SCC 398}. We are in complete agreement with the reasoning given by the aforesaid two Division Benches of this Court. In view of the above, the Criminal Appeal is dismissed”.
7. Till this time, we have seen that Section-195 CrPC does not impact the powers to police to investigate a cognizable offence. However, a decision of Supreme Court in Daulat Ram vs State of Punjab (1962) Supp. 2 SCR 812 is generally pushed for the proposition that police cannot lodge FIR, investigate the matter and comeup with a chargesheet if there is bar under Section-195 CrPC. It was observed therein as “The words of the section, namely, that the complaint has to be in writing by the public servant concerned and that no court shall take cognizance except on such a complaint clearly show that in every instance the court must be moved by the appropriate public servant. We have to decide therefore whether the Tehsildar can be said to be the public servant concerned and if he had not filed the complaint in writing, whether the police officers in filing the charge sheet had satisfied the requirements of s. 195……. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other han what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that s. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Polic was forwarded to the Tehsildar and he asked for "a calendar". This paper was filed along with the charge sheet and it is stated that this satisfies the requirements of s. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab inito and the conviction cannot be maintained”.
7.1. It is hard to accept that Daulat Ram case will have any applicability to the issue in hand. Firstly, the case pertained to an offence under Section-182 IPC which is non-cognizable and therefore this judgment cannot be treated as an authority on investigating powers of the police in respect of a cognizable offence. Secondly, there was no written complaint made by the Tehsildar therein which was a pre-requisite and therefore the Supreme Court quashed the case.
7.2. The other judgment generally pointed out is C. Muniappan & Ors vs State Of Tamil Nadu (2010) 9 SCC 567. Supreme Court observe therein “Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. 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…….. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC”.
7.3. A closre look at the judgment aforesaid shows that in the said case no written complaint was filed by the public servant and therefore, the court held that it was not proper for the court to take cognizance of the offence punishable under Section-188. The Supreme Court nowhere says that the FIR or police investigation was illegal. Rather in the same judgment, Supreme Court held further “However, we do not agree with the further submission that absence of a complaint under Section 195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned”.
7.4. It can therefore be said that neither the decision in Dualat Ram case nor in Muniappan case is the authority on the issue that police cannot register FIR for investigating the offence punishable under Section-188 IPC. These are simply judgments saying that unless a complaint in writing is filed, the court cannot take cognizance. Nothing more, nothing less.
7.5. It has to be remembered that court cannot issue any direction to the police not to register FIR for offence punishable under Section-188 as though a Magistrate has power to direct initiation of investigation in terms of Section-156(3) CrPC, it has no negative power to direct stoppage of registration FIR or investigation of cognizable offence.
8. What then should be the procedure in respect of the offence needs a clear answer. Section-195 CrPC does not create an embargo on the power of police to investigate a cognizable offence even if it pertains to Section-188 IPC. As such, once it comes to the knowledge of officer-in-charge of a police station that certain person has violated the lockdown, he is duty bound to enter such information of cognizable offence in the prescribed register meaning thereby that he will register an FIR. Naturally, upon registering an FIR, the police has to conduct investigation and ultimately, has to file a final report in terms of Section-173 CrPC. This final report may be in any form i.e. charge-sheet, cancellation report, untrace report, closure report etc. During the investigation, the police may exercise all such powers which it has while investigating any offence of cognizable nature.
8.1. Magistrate shall not be entitled to take cognizance on such police report in respect of offence punishable under Section-188 IPC. He therefore for obvious reasons has to decline to take cognizance on such basis. However, promulgating authority (whose order has been violated) can certainly write a complaint for such violation and present it to the court. The promulgating authority can also find support from any document he likes including the investigation result as prepared by the police and he can annex such police report with his written complaint.
8.2. It is interesting to note that neither Section-195 nor Section-200 CrPC anywhere provides as to how the written complaint will reach the court. Is it necessary that the promulgating authority itself bring his written complaint to the court? Answer is obviously No. Proviso appended to Section-200 clearly says that if a public servant files a complaint in writing, the court will not be required to examine him on oath. Obviously, this exception was carved out considering the time value of such public servant. Therefore, insisting on the fact that the public servant himself shall bring the written complaint to the court will not be justified.
8.3. The written complaint of the public servant (the promulgating authority in this case) should be addressed to the court and should comply with all the requirements of complaint as given in Section-2(d) CrPC. Nothing more is required to satisfy the ingredients of Section-195 CrPC which creates an embargo on the power of cognizance. Once a written complaint is made available to the court, the embargo of Section-195 will vanish and the court will be able to take cognizance of the offence under Section-188 IPC.
8.4. The court can treat the police report as filed after the investigation, as a relevant document for the purpose of complaint case as filed in writing. The only precaution which should be taken by the court is that it must indicate in its order that the cognizance is being taken on the written complaint and not on the basis of police report.
8.5. However, the court shall proceed with the case as per procedure prescribed in CrPC for complaint cases. After dispensing with the examination as per proviso to Section-200, the court can issue summons to the accused and upon appearance, it shall proceed under Section-251. Pertinently, provision of stoppage of proceedings available under Section-258 shall not apply to such cases being related to summons case instituted on complaint.
8.6. Normally, it is a police official/state executive who promulgates the orders during the period of lockdown. If case is instituted for violation of such order, the Assistant Public Prosecutor available in the Magisterial courts can represent the complainant i.e. the police official/state executive.
9. Aforesaid discussion has shown as to how the embargo of Section-195 CrPC works and as to how it has no impact on the powers of police to investigate the cognizable offence. In the discussion, we have seen relevant decisions of the Supreme Court. We know that once Supreme Court settles something, we need not to go by the decisions of High Courts.
9.1. There have been some decisions of certain High Court which have taken a view that due to embargo of Section-195; the police is not entitled to register FIR for offence under Section- 188. They have based their decisions on the premise that if cognizance cannot be taken on final police report, the investigation will be futile and the arrest of accused during investigation will be illegal. Since we have already seen that Supreme Court has differentiated the stages of investigation and cognizance and has come to a conclusion that Section-195 does not impact the powers of police, we need not to note the decisions of High Court as the decisions of Supreme Court would be binding precedents throughout the country in terms of Article-141 of the Constitution.
9.2. Interestingly, some of the High Courts are in such a position on this issue that their different benches at different times have taken different views on the same issue. Sometimes, they have held that police could not investigate and sometimes, they have held that there was no embargo on the police or that Section-195 could be raised as a bar only at the time of cognizance. Sometimes though they quashed the case instituted on police report, they left the public servant at liberty to initiate the prosecution properly by filing written complaint. Due to such deviated views taken by different High Courts at different point of time, it is found suitable not to discuss those decisions when Supreme Court has clearly settled the issue.
10. In view of the above, we can safely say that police has every power to register FIR for offence punishable under Section-188 IPC if it receives information that lockdown order has been violated in such a manner that the activity comes within the ambit of the provision. The police has powers to investigate the offence even if there is embargo on taking cognizance as envisaged under Section-195 CrPC. The Court cannot take cognizance of offence under Section- 188 on the basis of police report and it has to indicate that it is taking cognizance on written complaint of the public servant. The case then shall proceed as a case instituted on complaint. Further, a Magisterial court cannot issue any direction to the police not to register FIR foroffence punishable under Section-188 as though it has power to direct initiation of investigation in terms of Section-156(3) CrPC, it has no negative power to direct stoppage of registration FIR or investigation of cognizable offence.
Post Script: When this article was first written, the PIL was pending in the Supreme Court. Now, a three judges bench of Supreme Court has dismissed the PIL. One may read the order here. This article in its abridged form has been published by the National Police Academy in its special journal on legal coverage for Corona.
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Read SC Order in the PIL:
The Police Academy has also covered the article and the same may be downloaded from here:
