Disobedience to Order Duly Promulgated by the Public Servant - Section 188
The world, along with our country, has transformed drastically since we’re last exposed to it. This pandemic and eventually the state of lockdown has caused a paradigm shift in the way our society works and to stabilize such volatile situations, the governing bodies of the land implemented laws that the general population of the nation aren’t quite familiar with. Most of us are familiar with the famous or infamous Section 302 or Section 420 but through this phase of lockdown, a lot of us became aware of terms we’re unfamiliar with or pre-existing sections of the law that we’re unaware of. Such a section of the law is Section 188 of the Indian Penal Code that states Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he/she is directed to abstain from a certain act, or to take certain order with certain property in his/her possession or under his/her management disobeys such direction, shall 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, if such disobedience causes or tends to cause obstruction, annoyance or injury, or the risk thereof to any person lawfully employed. And if such disobedience happens 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. This section comes under ‘Chapter X’ of the Indian Penal Code. Consult the best lawyer online now What is IPC 188? Section 188 or Dhara 188 of the Indian Penal Code is in reference to disobeying an order duly promulgated by a public servant. This section is divided into two paragraphs, it firstly states that if the disobedience creates or tends to create an obstruction, injury or annoyance to any lawfully employed person, the person responsible can face simple imprisonment or a fine, or both. It secondly states that if such actions cause or tend to cause harm to human life or results in rioting or affray, the imprisonment may extend to six months or a fine up to a thousand rupees or both. It is also further explained that the offender need not intend to produce obstruction or harm, it is sufficient that he/she knows of the order that has been disobeyed which in turn produces or is likely to produce harm. To fully comprehend this section, the proper meaning of the term ‘promulgated’ needs to be clear. The term ‘Promulgated' means to declare or announce an order publicly. However, the ways of promulgating an order may vary. It can be through a judgment or it could be published in the official gazette etc. The ingredients of Section 188 IPC are: An existing order ‘promulgated’ by a public servant. The public servant promulgating such order must be lawfully empowered. The accused must be aware of the order promulgated by the public servant. The accused must’ve disobeyed the order that the public servant promulgated. Such disobedience must cause or tend to cause: obstruction, annoyance or injury, or risk of thereof to any lawfully employed person. Or, prove to be a danger to human life, health, and safety. Is IPC 188 bailable? Yes, IPC 188 is bailable and the offender can get bail from the police station by executing the prescribed bail bond before the complaint has been forwarded to the magistrate. What is the punishment for the IPC 188 Case? Section 188 of the IPC is segregated into two distinct parts outlining categories of offences with each part having respective consequences.
Is IPC 188 a cognizable offence or a non-cognizable offence?
IPC Section 188 falls under the category of a cognizable offence. A cognizable offence is defined as an offence in which the police can arrest the offender without the need of a warrant and the offender has to be presented before the magistrate within 24 hours.
How to file/defend your case for or against IPC 188 offence?
Section 188 IPC covers offences related to ‘disobedience towards an order lawfully promulgated by an entitled public servant’. As per this section, any person who has the knowledge of an order passed by a competent public servant, by which he/she is prohibited from taking a certain action, disobeys such an order, he/she shall be liable to be held liable under this section. IPC 188 is a cognizable offence, hence apart from powers of arrest without warrant, the police can register an FIR and initiate an investigation into such cases.
However, u/s 195(1)(a) of CrPC denotes that no court is permitted to take cognizance of any offence punishable under IPC section 172 to section 188 without a written complaint from the public servant concerned. Along with restricting private complaints, it specifically prohibits a court from taking cognizance of such offences on the basis of a final report by the police.
It is very important for anyone interested in filing for or defending against IPC section 188 to know the depth and the inner workings of the section and how it is implemented in real-life scenarios so that one might be adequately prepared.
For further in-depth assistance :
Consult an expert criminal lawyer with the help of Lawtendo to file or defend your case for IPC 188
Is IPC 188 a bailable or non-bailable offence?
IPC Section 188 falls under ‘bailable offence’. In a bailable offence, bail is granted as a claim of right. It may be provided by the police officer that has custody of the offender or by the court. In order to grant bail, a ‘bail-bond needs to be executed, with or without the presence of sureties. The bail-bond comes with certain clauses related to the offence such as the offender shall be present in front of officials whenever required, etc.
(Please note, the court is within its jurisdiction to refuse bail, even if the offence committed is bailable, if the accused fails to comply with the terms and conditions of the bail-bond.)
Notable judgment under IPC section 188 :
Bal Khande vs State of M.P. on 16 December, 2015.
Before the Court, it was argued on behalf of the respondent that for taking cognizance under IPC Section 188, a complaint was made to the Court directly having jurisdiction in the matter in respect of the offence committed under IPC Section 188 and it was not for the police to register a case against the offenders for an offence under IPC Section 188 and then to submit a report u/s Section 173 of the Cr.P.C., which was exactly the five submissions provided by the counsel for the appellants. Assurance was placed on a judgment provided by the High Court of Punjab and Haryana in the case of Jiwan Kumar Vs. State of Punjab and Others decided on 18-03-2008.
In view of the abovementioned scenario, the Judge further observed,
The Division Bench of Punjab and Haryana High Court held that in respect of IPC section 188, taking into account the statutory provisions as contained u/s 195 of Code of Criminal Procedure, a complaint must be made in writing to the court by the Public Servant. The Division Bench has further held that it is not under the jurisdiction of the Police to register a case against the offender u/s 188 of IPC and then to submit a report u/s 173 of Code of Criminal Procedure, 1973. Thus, keeping in view the judgment delivered by the Division Bench, the court considered that the action of the respondents in registering the FIR is certainly contrary to the statutory provisions as contained u/s 195 of the Code of Criminal Procedure, 1973 and the FIR had to pave the path of extinction.
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The law does not allow taking cognizance of any offence u/s 188 of the IPC unless there is a formal complaint in writing by the public servant. In the respective case, no such complaint was ever filed. In such a scenario and taking into account the settled legal principles in this regard, the court was of the view that it was not permissible for the trial Court to frame a charge under IPC Section 188. Nevertheless, the court did not agree with the further submission that the absence of a complaint u/s 195 Cr.P.C. falsified the genesis of the prosecution's case and is fatal to the case for the prosecution.
Applying the principles laid down by the Hon'ble Supreme Court and the provisions contained under IPC Section 188 and Section 195 of Cr.P.C. as well as the judgment delivered by the Punjab and Haryana High Court in Jiwan Kumar's case, which was also quoted in the impugned order, the Judge held that in this case there was a violation of the nine statutory provisions contained u/s 195 Cr.P.C. by registering the FIR for an offence u/s 188 of IPC, the FIR was accordingly quashed.
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| Offence | Punishment | Cognizance | Bail | Triable By |
|---|---|---|---|---|
| Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed | Simple Imprisonment for 1 Month or Fine or Both | Cognizable | Bailable | Any Magistrate |
| If such disobedience causes danger to human life, health or safety, etc. | 6 Months or Fine or Both | Cognizable | Bailable | Any Magistrate |
| Offence | Disobedience to an order lawfully promulgated by a public servant, If such disobedience causes obstruction, annoyance or injury to persons lawfully employed |
|---|---|
| Punishment | Simple Imprisonment for 1 Month or Fine or Both |
| Cognizance | Cognizable |
| Bail | Bailable |
| Triable By | Any Magistrate |
| Offence | If such disobedience causes danger to human life, health or safety, etc. |
| Punishment | 6 Months or Fine or Both |
| Cognizance | Cognizable |
| Bail | Bailable |
| Triable By | Any Magistrate |
