Madras HC warns against Police overreach in cases involving disobedience of public servant orders

Madras HC warns against Police overreach in cases involving disobedience of public servant orders

Meera Emmanuel

The Madras High Court was recently constrained to reiterate that the police cannot register cases for disobedience of a public servant’s orders under Section 188 of the Indian Penal Code (IPC) without the prior written complaint of a public servant as per Section 195 of the Code of Criminal Procedure (CrPC).

Given several recorded instances of police overreach in this regard, Justice N Anand Venkatesh also issued guidelines to be adhered to before a case can be registered under Section 188 of the IPC. The common order was passed in a batch of cases where such irregularities were alleged by several petitioners.

The state argued that since the offence under Section 188, IPC is a cognizable offence, the police is bound to register a case on receiving information regarding the same, even in the absence of a prior written complaint.

However, Justice Venkatesh disagreed, finding that such a practice would violate Section 195 (1) (a) of the CrPC.

Section 195 (1) (a) of the CrPC provides that a magistrate cannot take cognizance of an offence under Section 188, IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

The written complaint here does not include an FIR or a Final Report made by the police. This can be inferred from Section 2 (d) read with Section 2(r) of the CrPC. These provisions clarify that a “complaint” would not include police reports forwarded by the police to the magistrate.

Further it was also noted that the “public servant” referred to in these provisions does not refer to police officers.

The word used under Section 188 of IPC is ‘public servant lawfully empowered’ and the word used in Section 195(1)(a)(i) is ‘public servant concerned’. The very terminology that has been used in the provision makes it clear that not all public servants falling under Section 21 of IPC can give a complaint in writing, it is only the public servant who has been specifically authorised, by a specific order in this regard, who can file a written complaint before the concerned Judicial Magistrate Court.”

This means that the police cannot claim that the requirement under Section 195, CrPC is satisfied citing an FIR or a Final Report filed by them.

Since Section 195, CrPC bars a magistrate from taking cognizance of cases registered under Section 188, IPC without a public servant’s written complaint, it follows that the police cannot register an FIR without such written complaint either. As noted in the order,

The offence being cognizable by itself, does not enable the Police Officer to register an FIR for an offence under Section 188 of IPC. The reason being, such registration of an FIR has to necessarily end with a Police Report under Section 173(2) of Cr.P.C, which is specifically barred under Section 195 of Cr.P.C.

The definition of a complaint under Section 2(d) of Cr.P.C itself makes it clear that a complaint does not include a Police Report.

In this backdrop, it was observed that Section 195, CrPC is an exception to Section 190 of the CrPC, which provides for the various modes by which a magistrate can take cognizance of an offence.

Section 195 of CrPC carves out an exception and states that no Court shall take cognizance of certain offences, unless the stipulation [written complaint by the public servant] under Section 195 of CrPC is satisfied.”

The rationale for this additional condition is to guard against criminal prosecution motivated by malice, and further to prevent needless litigation. As explained by the Court,

The object of the provision is to provide for a particular procedure, which gives authority only to the public servant. The legislative intent is to prevent an individual or a group of persons from facing criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will, or frivolity of disposition and to save the time of Criminal Courts from being vexed by endless prosecution. “

It was made clear that non-compliance of Section 195, CrPC before registering cases under Section 188, IPC would render the entire proceeding void ab initio.

The Hon’ble Supreme Court has gone to the extent of saying that such a Final Report, which is taken cognizance will make the entire proceedings void ab initio which would necessarily mean that the registration of the FIR for an offence under Section 188 of IPC will also become void.”

In cases where it is warranted, the police may arrest errant persons as a preventive measure exercising powers under Section 41 of the CrPC. However, a written complaint from the concerned public officer must be obtained before a case can be registered for an offence under Section 188, IPC against the arrestee.

After the arrest, the concerned Police Officer is duty bound to inform the public servant authorised about the offence committed under Section 188 of IPC and the public servant thereafter, has to proceed in accordance with the procedure under Section 195(1)(a)(i) of Cr.P.C.

In other words, the power of the Police Officer to arrest a person committing a cognizable offence, is only a preventive action and thereafter the procedure to be followed is guided by Section 195(1)(a) (i) of Cr.P.C.

To ensure that this mandate is adhered to, the Court has issued the following guidelines:

– A Police officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.

– A Police officer can arrest persons as a preventive measure to guard against the commission of an offence under Section 188 of the IPC. 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.

– In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;
i) that there must be an order promulgated by the public servant;
ii) that such public servant is lawfully empowered to promulgate it;
iii) that the person knowingly disobeys such order; and
iv) that such disobedience causes or tends to cause obstruction, annoyance or risk, or endangers human life, health or safety, or causes riot or affray.

– No Judicial Magistrate should take cognizance of a Final Report unless these conditions are met. Any proceedings initiated in violation of the same would be void.

The Court has also ordered the Director General of Police at Chennai and the Inspector General at various zones to formulate a process to ensure that there is no delay in filing a written complaint by the concerned public servants under Section 195 of the CrPC in such cases.

Further, taking note of concerns raised that the police have been acting to stifle democratic dissent by invoking Section 30 (2) of the Police Act, 1861, the Court also directed as follows:

– The Police cannot mandate that prior licences have to be obtained to carry out public  demonstrations or processions by invoking the Police Act, 1861 in an arbitrary manner. The Court emphasized that such promulgation issued under Section 30(2) of the Act must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.

– If a promulgation is made making it mandatory to obtain a licence for carrying out such processions/demonstration, it should be done openly and in public. Private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.

Read the Order:

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