Cognizance Can't Be Taken For Offence U/S 188 IPC Unless Complaint Is Made By Public Servant Or His Superior: Manipur High Court
The Manipur High Court has held that Magistrate cannot take cognizance of a complaint involving an offence punishable under Section 188 IPC, if that is made by a third party and not by the public servant who promulgated the order or by the one to whom he (the public servant) is administratively subordinate. A Single Judge Bench of Chief Justice Sanjay Kumar...
The Manipur High Court has held that Magistrate cannot take cognizance of a complaint involving an offence punishable under Section 188 IPC, if that is made by a third party and not by the public servant who promulgated the order or by the one to whom he (the public servant) is administratively subordinate.
A Single Judge Bench of Chief Justice Sanjay Kumar observed,
"…when there is no complaint from the public servant concerned or his superior, permitting an FIR to be registered at the behest of a third party and allowing investigation to go on may ultimately turn out to be a futile exercise if no such complaint is forthcoming even at the stage of filing of the Police Report. That apart, the intended purpose of protecting the individual from persecution is lost as he would be subjected to the rigours of police investigation even though there is no complaint from the public servant concerned or his superior and the Court would ultimately have to refuse to take cognizance."
Factual Background:
The complainant addressed a letter dated 15.09.2020 to the Superintendent of Police, Imphal East District, Manipur, stating that social media had reported to the effect that an incident occurred on 15.09.2020 at Santhei Natural Park, Andro, and some people were seen damaging the Inauguration Plaque at the park. He requested that necessary action be taken against the culprits.
Subsequently, an FIR was registered by the Andro Police Station under Sections 147, 148, 188, 427 and 34 IPC. The accused were not known and were shown in the FIR as 'some people'. The grounds for remand filed on 17.09.2020 before the Judicial Magistrate First Class, Imphal East, showed that a person had been arrested on 16.09.2020 and he disclosed that the petitioner had given a speech on 14.09.2020 at the said park.
It was further stated that on 15.09.2020, a meeting was again held near the gate of the park and about 400 to 500 people attended the meeting. The damage to the Inauguration Plaque was caused thereafter. The arrested person is stated to have named some of those involved in the destruction. On the basis of this information, the police authorities sought leave to add Section 505(1)(b) IPC in the FIR and also sought remand of the petitioner to police custody to enable further investigation. However, by order dated 17.09.2020, the Magistrate refused to remand the petitioner to police custody and allowed his bail application, thereby granting him bail subject to conditions.
Contentions of the Petitioner:
Mr. L. Sevananda Sharma, counsel for the petitioner, contended that the registration of the FIR, in so far as it pertains to an offence under Section 188 IPC, is unsustainable in law. Further, he argued that there is no material whatsoever to implicate the petitioner in the offences alleged under Sections 188 and 505(1)(b), IPC. He relied on the observations of the Magistrate in the order granting bail to the petitioner and prayed for quashing of the FIR, in so far as it concerns the petitioner.
Contentions of the Respondents:
The Officer-In-Charge of the concerned Police Station filed an affidavit-in-opposition. Therein, he stated that there was a ban imposed by the competent authority on social gatherings and assembling of crowds due to the COVID-19 pandemic and, therefore, the petitioner ought not to have addressed a meeting at the park in violation of such order. This is the offence alleged against him under Section 188, IPC.
He further stated that after examining the report in that regard and upon investigation into the vandalism at the park, involving destruction of the Inauguration Plaque, one person was arrested and upon his disclosures, it came to light that the villagers were incited by the petitioner during his speech. He accordingly explained the justification for adding Section 505(1)(b), IPC in the FIR. He concluded by stating that investigation was still under process and that no grounds were made out to quash the FIR against the petitioner at this stage.
Observations of the Court:
At the outset, the Court noted that Section 188, IPC deals with disobedience to an order promulgated by a public servant. However, Section 195(1)(a)(i), Cr.P.C. postulates that no Court shall take cognizance of an offence punishable under Section 188 except on the complaint in writing of the public servant concerned or of some other public servant, to whom he is administratively subordinate.
Further, it noted that offence under Section 188, IPC is 'cognizable'. However, the question is whether there can be registration of an FIR under Section 154, Cr.P.C. upon information of the offence without there being a complaint from the public servant or his superior. The Court held that registration of an FIR even in such circumstances would necessarily entail filing of a Police Report under Section 173(2), Cr.P.C. But the Court concerned cannot take cognizance without there being a complaint from the public servant or his superior, in the light of the embargo stipulated under Section 195(1)(a)(i), Cr.P.C.
Therefore, it held that a harmonious construction of these provisions would require that a complaint be made by the public servant concerned or his superior for the police to register an FIR in relation to this cognizable offence and commence investigation. Therefore, the very registration of the FIR presently in relation to an offence under Section 188, IPC upon the letter of the complainant is untenable in law.
The Court relied on C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567, wherein the Apex Court observed that the legislative intent behind Section 195(1)(a)(i), Cr.P.C. is that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the Criminal Courts from being wasted by endless prosecutions.
It was further observed that the provision has been carved out as an exception to the general rule contained under Section 190, Cr.P.C. that any person can set the law in motion by making a complaint, as it prohibits the Court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person.
Accordingly, the Court concluded,
"Apart from the fact that there is no direct link between the speech delivered by the petitioner 24 hours earlier and the vandalism that took place at the park on the next day, the substance of his speech is not shown to be incendiary by any stretch of imagination, whereby he can be accused of inciting passion leading to vandalism a day later. The mere posing of a question as to whether people accepted the reduction from `10/- to `5/- does not amount to 'causing any fear or alarm' in terms of Section 505(1)(b) IPC."
Consequently, the FIR against the petitioner was ordered to be quashed.
Case Title: Dr. Salam Robindro Singh v. The Officer-in-Charge, Andro Police Station & Anr.
Case No: Criminal Petition No. 03 of 2021
Judgment Dated: 04 April 2022
Coram: Chief Justice Sanjay Kumar
Counsel for the Petitioner: Mr. L. Sevananda Sharma, Advocate
Counsel for the Respondents: Mr. Athouba Khaidem, Public Prosecutor, Mr. Lenin Hijam, Addl. AG Mr. Mangilal, Junior to Addl. AG
Citation: 2022 LiveLaw (Man) 6