Registration of case u/s 188 of IPC is merely intended to set criminal law in motion and Sec.195 of CrPC restricts manner in which cognizance of offence is to be taken by Court: P&H HC

Read Order: Pawan Giri And Others v. State Of Haryana

Monika Rahar

Chandigarh, March 3, 2022: While dealing with a quashing plea of persons who were arrested for allegedly violating Section 144 Cr.P.C. guidelines issued in wake of the COVID-19 pandemic, the Punjab and Haryana High Court has held that the registration of a case under Section 188 IPC is merely intended to set the criminal law in motion and the power of police to investigate an offence is not controlled or regulated by Section 195 Cr.P.C. 

The Bench of Justice Vinod S. Bhardwaj said additionally that the aforesaid statutory provision however does restrict the manner in which cognizance of the offence is to be taken by the Court.

On April 1, 2020, owing to COVID-19, the District Magistrate concerned made an order under Section 144 Cr.P.C. directing shops to be shut after 6:00 PM. At around 12:00-12:30 PM, the petitioner’s son went to a Chemist’s Shop to purchase essential medicines (pertaining to diabetes) for his mother, the information of which reached the Police. The petitioners were thus arrested, an FIR under Sections 188 and 269 IPC was registered and eventually a charge- sheet was filed. Hence, the instant petition quashing plea was made. 

The case of the petitioners’ counsel was that the petitioner went to purchase essential medicines within the permissible hours and thus the order restricting the shop keepers from opening shops beyond a certain point of time, was not violated. It was further argued that ingredients of Section 269 IPC were not fulfilled as the petitioners were not suffering from any communicable disease and as such, the petitioner could not have spread the infection of any disease that may be labelled as dangerous to life. 

Further, while referring to Section 195 of the Cr.P.C., it was argued that cognizance of any offence under Section 188 could not be taken except on the complaint in writing of the public servant concerned or of a senior of such public servant. Lastly, the counsel argued that the same FIR against other co-accused was quashed by the Court. 

Per contra, the State Counsel argued that a cognizable offence was duly made out and that the FIR was registered on a complaint made by the Police Officer as the petitioners were found roaming without masks and they could not give any satisfactory explanation for violating the directions.

The Court after perusing Section 269 IPC observed that in order to attract this Section, the act of an accused must be one which was likely to spread infection of any disease dangerous to life. In this light, the Court looked into the charge-sheet to contend that it did not indicate any prima facie evidence on whether the petitioner or the other members of the family were suffering from any infectious disease or if it would have caused the spread of any infectious disease. In the absence thereof, the Court opined that it could not be assumed that the petitioners were either the carriers of infection or would have caused the spread thereof. 

Apart therefrom this, the charge sheet also did not indicate the exact guideline alleged violated. In the absence of any such specific guidelines, the Court held that there was no presumption that the act of the petitioners was unlawful. Further, the Court observed that the guidelines in place restricted the shop from selling and that petitioners procuring essential medicines during the permissible hours of operation were not doing any unlawful act. 

In the words of the Court, “In the absence of the respondents to refer to any order, the disobedience whereof is sought to be alleged against the petitioners, it cannot be perceived that the petitioners have committed an offence under Section 269 IPC.”

Further, on Section 195 Cr.P.C., the Court opined that it opens with the word “No Court” and thus imposes a bar against any Court to take cognizance of the offences contemplated thereunder except when a complaint is made by a public servant or his/ her superior. 

Applying this provision to the present case, the Court opined that the order of prohibition did not refer to any restrictions against the purchasers and that the subordinate officials were only required to ensure enforcement of the said order and it did not make them an authority whose order was disobeyed. Justice Bhardwaj also added that undisputedly the complaint in question was not filed by the authority that had issued the order or by an authority to which such authority was subordinate

Reference in this regard was made to the Apex Court in P.D. Lakhani and Others v. State of Punjab, (2008) 5 SCC 150 wherein it was held that the functions of the Public Servant under Section 195 could not be delegated. Also, another case referred to was of Basir-ul-haq v. State of Punjab, AIR 1953 SC 293 in which it was held that the prosecuting agency cannot take the aid of Section 269 IPC to justify the filing of the report under Section 173 Cr.P.C. especially when the essential ingredients of Section 269 IPC are not made out from the final report.

Thus, the instant petition was allowed and the FIR under Section 188 and 269 IPC along with the charge-sheet was quashed.