SECTION 188 IPC IN THE COVID-19 CONUNDRUM: THE TROUBLE IS BREWING FOR INDIA


In this Covid-19 outbreak, where the stringent implementation of the law is the only way of combating this pandemic and regulating the social distancing norms as well as the conduct of the citizens, the legal sanctions amid violation of the lockdown guidelines are proving to be futile as the deterrence of these penalties tends to be less than the urge to violate these laws. The quintessential of this would be cases shooting up to more than one lakh in number despite early actions taken by the government to control this outbreak. Section 188 IPC is a hot issue nowadays because of its controversial and ambiguous interpretation and its specific mention in section 3 of the Epidemic Diseases Act, 1897  as a way of imposing a penalty on violation of the provisions of this particular act. The following blog ensues as an opinion on the ongoing gallimaufry of the Covid-19 conundrum by analyzing the deterrence effect of this section and the FIR dilemma in the light of a recent petition being dismissed by the Supreme Court which required quashing of all FIRs filed under this particular section.
The legal framework backing up the government to issue proper guidelines comes out to be a  combination of various acts and criminal legislations as single legislation is not capable of combating this issue. Epidemic Diseases Act, 1897, Disaster Management Act, 2005, and the Indian Penal Code, 1860  are some of the main highlighted laws which are actively in play to combat India’s version of the pandemic. Section 188 deals with “disobedience to order duly promulgated by a public servant”  and serves as a penalty in section 3 of Epidemic Diseases Act, 1897. It is a bailable and cognizable offense which can be tried by any magistrate and has attracted attention due to numerous complaints and FIRs being registered under this section.
Recently, the Supreme Court dismissed a writ petition filed by Dr. Vikram Singh wherein the petitioner sought directions to quash all the FIRs filed under section 188. The petitioner asserted that over 75000 FIRs were registered and argued that the same cannot be done under the embargo of section 195 Cr.P.C . and that the misuse of section 188  is burdening the police personnel by the filing of FIRs of petty offenses. This petition not only dug out the long-standing debate of the FIR dilemma but also questioned the deterrent effect of this section as a way of penalty in this pandemic.
Section 195(1)(a) Cr.P.C provides that “no court shall take cognizance of any offense punishable under S. 172 to S. 188 of the IPC except on a written complaint of the public servant concerned or of his superior”.  In other words, taking cognizance through a police report is prohibited under Section 188 IPC.  The issue of whether FIR can be registered under section 188 and whether cognizance taken by the magistrate through this is valid or not has been a question of debate for a long time. Over time, Courts have derived different opinions on this through various judgments.
In Jeevanandham v. State Rep. (2018), the Madras HC laid down guidelines with regards to section 188 IPC when reading with section 195 Cr.P.C. and explicitly provided that, “A Police Officer cannot register an FIR for any of the offenses falling under Section 172 to 188 of IPC.” It went ahead and provided the scope of power of a Police Officer when section 188 is invoked observing that the power of a police officer is confined to take a preventive action under section 41 Cr.P.C.  when a cognizance under section 188 IPC is taken.  Before this judgment, in C Muniappan and Ors v. State of Tamil Nadu (2010), the Supreme Court laid down a similar view and elucidated that cognizance can be taken by the court only on the written complaint filed by a public servant.
On the other side of the coin, there have been judgments which have articulated on the validity of an FIR registered under section 188 IPC. In State of Punjab v. Raj Singh (1998), SC provided that section 195 Cr.P.C.  has nothing to do with the “statutory power of the police to investigate into an F.I.R. which discloses a cognizable offense”. It further articulated that section 195 Cr.P.C. in no way controls or circumscribes this power of the Police to investigate and any charge sheet filed on completion of this investigation will not be the basis of cognizance taken by Court.
Section 154 Cr.P.C.  mandates the Police Officer to register an FIR when the offense discloses to be cognizable and further investigate the matter on the completion of which the final report is to be submitted to the magistrate. Section 188 IPC  being a cognizable offense, section 195 Cr.P.C.  in no way restricts this statutory power of the Police to register an FIR under this section. This position has been affirmed in various judgments. In Lalita Kumari v. State of UP, the SC dictated that the Police have no discretion to not register FIR when the information provided discloses a cognizable offense.  Further, in ML Sethi v. RP Kapur (1967), the court observed that section 195 Cr.P.C.  serves as an exception and a limitation to section 190 Cr.P.C., but this question of law cannot be raised before the Court takes cognizance. It further provided that the Police have no power to intervene in the Court’s decision of taking cognizance nor can the Court object to the FIR and investigation carried by the Police in a cognizable offense. State of Punjab v. Raj Singh proves to be a very well-articulated judgment providing a sense of clarity on the validity of FIR filed by the Police and remains a coherent law followed and discussed by many High Courts. These judgments reaffirm and clarify the position of law regarding FIRs registered under section 188 IPC.
Cesare Beccaria advocated that punishment and threat of punishment are provided to deter an individual to commit future crimes and to mend his future conduct. This theory is reflected in our judicial scrutiny through judgments. In Mahesh v. State of MP (1987), the SC observed that “giving a lesser punishment to the accused would be to render the justice system of the country suspect”.  A similar view was propounded in Sevaka Perumal v. State of Tamil Nadu (1991) where this Court propounded that “undue sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law”.
In April, Karnataka CM expressed his concerns that more than 75% of the state’s population was not following lockdown. Social distancing norms were mocked in Mumbai when the highways were overcrowded with trucks and vehicles of every shape and size. Delhi is still juggling with overcrowding of fruits and vegetable markets where the probability of hundreds in danger doubles.  The same is the situation in Kanpur, where people are knowingly ignorant and venture out as if everything is normal.  Punjab’s incident of more than 2000 pilgrims returning through buses from Nanded Sahib, news of police being mistreated and attacked by mobs for doing their duty just shakes you to the core.  The Penalty structure is conspicuously lacking the effect needed. The punishment provided under section 188 IPC  fails to level the severity of offense with the amount of punishment. Offense causing danger to life or a serious offense such as affray attracts only six-month imprisonment. The present situation where a single mistake of an individual intensifies the probability of causing harm to hundreds of others does not call for monetary compensation and that too as low as 1000 rupees for causing danger to human life. It deflects from the purpose of causing appropriate deterrence or threat that brings the conduct of citizens in order. The section being bailable and cognizable just adds fuel to the fire. It serves an individual with the opportunity of escaping punishment on a silver platter. The absence of a stringent penalty framework in this pandemic is coming out to be a let down to the objective of the law. The failure to regulate and deter individuals to deflect from a rational lifestyle of following rules is proving to be between rock and a hard place.
A petition claiming that FIRs filed under section 188 IPC needs to be quashed not only points out the ignorance of the law but also stamps the losing faith of the public in the justice system. The deterrent effect of this penalty is conspicuously low as the people are neither under the threat nor are they trying to mend their future conduct. Both of these factors are playing a major role in the Covid-19 conundrum. The dismissal of the petition comes out to be a good decision by the SC but does not wipe out the fact that amendments are required to formulate a stringent framework of penalties that have adequate clarity and deterrence. The precarious situation is not effectively controlled by a single law and hence in no way can afford a long-standing debate of ambiguity. It comes as an awakening call for a unified law and a severe deterrent structure which adequately motivates and deter the citizens to follow the guidelines and appreciate the efforts of the government.

References
[1] Indian Penal Code, 1860, §188.
[2] Epidemic Diseases Act, 1897, §3.
[3] Epidemic Diseases Act, 1897.
[4] Disaster Management Act, 2005.
[5] Indian Penal Code, 1860
[6] Dr. Vikram Singh v. UOI
[7] Id.
[8] Code of Criminal Procedure, 1973, §195
[9] Code of Criminal Procedure, 1973, §41.
[10] Jeevanandham v. State Rep., (2019) 1 MLJ (Crl) 14.
[11] C Muniappan and Ors v. State of Tamil Nadu, (2010) 9 SCC
[12] State of Punjab v. Raj Singh, AIR 1998 SC 768
[13] Code of Criminal Procedure, 1973, §154
[14] Lalita Kumari v. State of UP, (2014) 2 SCC 1
[15] Code of Criminal Procedure, 1973, §190
[16] ML Sethi v. RP Kapur. AIR 1967 SC 528
[17] State of Punjab v. Raj Singh, AIR 1998 SC 76
[18] Cesare Bonesana di Beccaria, An Essay on Crimes and Punishments (1764).
[19] Mahesh v. State of MP, (1987) 3 SCC 80.
[20] Sevaka Perumal v. State of Tamil Nadu, (1991) 3 SCC 471 
[21] The Hindu, Lockdown not being properly followed in Karnataka: Yediyurappa, April 6, 2020.
[22] Mumbai Mirror, Lockdown, social distancing go for a toss on highways, May 14, 2020.
[23] The New Indian Express, Social distancing not being followed strictly, says Delhi’s Azadpur market vegetable vendor, April 3, 2020.
[24] Times of India, Lockdown rule violation still keeping cops on toes in Kanpur, March 31, 2020.
[25] Times of India, Over 2,000 Punjab pilgrims stuck in Nanded return, April 30, 2020.
[26] The New Indian Express, Police come under attack in Howrah while trying to enforce lockdown, two personnel injured, April 28, 2020.

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