In this Covid-19 outbreak, where the stringent implementation of 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 tend to be less than the urge to violate these laws. The quintessential of this would be the number of cases shooting up to more than one lakh despite early actions taken by the government to control this outbreak. Section 188 Indian Penal Code 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 penalty on violation of the provisions of this particular act.
THE LAW IN APPLICATION UNDER THIS PANDEMIC
The legal framework backing up the government to issue proper guidelines comes out to be a combination of various acts and criminal legislations as a 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 public servant” and serves as a penalty in section 3 of Epidemic Diseases Act, 1897. It is a bailable and cognizable offence 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 in Dr. Vikram Singh v. UOI (2020) 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 same cannot be done under the embargo of section 195 Code of Criminal Procedure and that the misuse of section 188 is burdening the police personnel by filing of FIRs of petty offences. 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.
The FIR FILING DILEMMA
Section 195(1)(a) Cr.P.C provides that “no court shall take cognizance of any offence 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 the time, Courts have derived different opinions on this through various judgements.
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 offences 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 judgement, 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 judgements which have articulated on the validity of an FIR registered under section 188 IPC. In the 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 offence”. 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 the Court.
Section 154 Cr.P.C. mandates the Police Officer to register an FIR when the offence 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 offence, 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 judgements. In Lalita Kumari v. State of UP, the SC dictated that the Police has no discretion to not register FIR when the information provided discloses a cognizable offence. 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 offence. State of Punjab v Raj Singh proves to be a very well-articulated judgement 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 judgements reaffirms and clarify the position of law regarding FIRs registered under section 188 IPC.
CONSPICUOUS LACK OF DETERRENCE
Cesare Becarria advocated that punishment and threat of punishment is provided to deter an individual to commit future crimes and to mend his future conduct. This theory is reflected in our judicial scrutiny through judgements. In Mahesh v. State of MP (1987), the SC observed that “giving a lesser punishment to the accused would be to render the justicing 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. 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 offence with the amount of punishment. Offence causing danger to life or a serious offence 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 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 which 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.