No FIR under Section 188 of Indian Penal Code? : A Critical Analysis

The Authors, Gaurav Thote and Advait Shukla are Advocates practising at the Bombay High Court.

INTRODUCTION

            In 1949, while advocating a new approach towards Interpretation of Statutes, Lord Denning MR in Seaford Court Estates Ltd. v. Asher[1], said:

“A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases”

This doctrine of purposive interpretation or of finding the intention of the legislature becomes fundamentally important, especially while interpreting the procedural laws. This article critically analyses the views taken by Madras and Bombay High Court, holding that no FIR can be lodged under Sections 172 to 188 of IPC.

NO FIR UNDER SECTION 188?

Section 188 of the IPC contemplates the punishment for disobeying an order duly promulgated by a public servant. On June 26, 2020 the Madras High Court quashed a FIR for offences punishable under Sections 143 and 188 of IPC holding that a Police Officer was not competent to lodge the FIR in view of the bar contemplated under Section 195(1)(a) of Criminal Procedure Code (CrPC)[2]. While arriving at this finding, a reference was made to the guidelines issued by a co-ordinate bench of the High Court in Jeevandham v. State[3], which held-

“25.In view of the discussions, the following guidelines are issued insofar as an offence under Section 188 of IPC, is concerned:

a) A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.

b) A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.

c)The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC...”

A similar view was also taken by the Bombay High Court in Shrinath Giram v. State of Maharashtra wherein the Court observed-

“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.

INTERPRETATION OF THE PROVISIONS

A harmonious reading of provisions of Cr.P.C. along-with the past-precedents, will be necessary to understand the purpose of the scheme of the Code. First and foremost, it would be apposite to refer to Section-154 of CrPC which states that every information relating to the commission of a cognizable-offence shall be reduced to writing and the substance thereof shall be entered in a book to be kept by the Police Officer in the prescribed form.

The section uses the term “shall be reduced to writing” making it mandatory on part of the Police to record the information of a cognizable offence. The law has been settled in Lalita Kumari v State[4] and Sandeep Shukla v. State[5] wherein the Courts have held that the Police are duty bound to forthwith register a FIR and investigate into the matter if the information discloses the commission of a cognizable offence. The classification of offence u/s.188 of IPC is cognizable and bailable, making it mandatory on the police officer to record the FIR.  

Further, it is pertinent to analyse whether Section 195 of CrPC bars lodging of FIR itself or it only bars cognizance.

Section 195(1)(a) of CrPC states-

“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 ), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.”

Section 195(1)(a) of CrPC makes it clear that a Court is incompetent to take cognizance of any offence punishable under Sections 172 to 188 of IPC without a written complaint of the concerned public servant. In C. Muniappan v. State of T.N.[6], the Apex Court observed-

“20. 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.”

DOES SECTION 195 OF CRPC BAR REGISTRATION OF FIR AND INVESTIGATION OF OFFENCES?

In State of Punjab v. Raj Singh[7], the Supreme Court observed-

“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.”

In M. Narayandas vs State of Karnataka [8] the Supreme Court endorsed the decision rendered in Raj Singh(supra) holding-

“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.”

The cumulative effect of the abovementioned judgments manifest that the Police being duty bound to register a FIR in case of a cognizable offence, would be bound to lodge a FIR for an offence under Section 188 of IPC as Section 195 of CrPC, in no way, takes away the powers of the Police to investigate into cognizable offences contemplated under Section 195 of CrPC. The stage of registration of FIR and stage of taking cognizance are two distinct stages contemplated under the Code.

The recent decision of the Madras High Court is based on the judgment of the co-ordinate bench of the High Court in Jeevandham v. State, which is clearly per-incuriam to the decisions in Raj Singh and M. Narayandas (both supra). In fact, it would not be out of place to mention that the guidelines (a) and (b) issued Jeevandham’s case (supra), when juxtaposed, fall contrary to each other. Unless the law is set into motion by registration of FIR, the power to arrest cannot be exercised as stated in the said decision.

CONCLUSION

In the end, it becomes fundamentally clear that the law needs to be interpreted having regard to the intention of the legislature. The intention of the legislature in Section 195 of CrPC appears to bar the Court from taking cognizance in case of certain offences, and not per se bar registration of a FIR. Referring to the decision of M. Narayandas (supra), cognizance can still be taken if at the time of filing of Charge-sheet the statutory procedure specified under the provision is complied with. In the end, it is open to our courts in the words of Lord Denning, to decide which approach towards interpretation is better, the old grammatical approach or the modern purposive approach![9]

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