S. 195 CrPC Doesn't Bar Registration Of FIR For An Offence Under S. 188 IPC By Police: Madhya Pradesh High Court

Holding thus, the bench of Justice Prakash Shrivastava refused to quash an FIR registered against 10 petitioners-accused who had allegedly staged a demonstration against CAA and NRC.

The matter before the Court

Allegedly, they staged a demonstration without giving any intimation or taking prior permission from the competent authority, whereas the District Magistrate in order to maintain peace and tranquility had issued an order prohibiting any demonstration, procession, public meeting etc. in any place without permission.

It was further alleged that in addition to the petitioners, there were other 200 persons who had violated the order of the District Magistrate and, therefore, committed the offence under Section 188 of the IPC.

Submissions put forth

The submission of counsel for the petitioners was that in terms of Section 195(1)(a)(i) there is a bar for taking cognizance of offence under Section 188 of the IPC and for that purpose a complaint under Section 200 of the Cr.P.C. is required to be filed and FIR cannot be registered.

It was further submitted that for registering the FIR obstruction, annoyance, injury or threat to life and safety is necessary and that the order of the District Magistrate was not communicated to the petitioners.

It was also submitted that the right of demonstration is a fundamental right.

On the other hand, the Counsel for the State opposed the petition and submitted that there is no bar under Section 195 of the Cr.P.C. in registering the FIR for offence under Section 188 of the IPC and the bar under Section 195 comes into operation at the stage of taking cognizance.

He further submitted that the offence under Section 188 of the IPC is a cognizable offence and in the State of M.P. it is a non bailable offence, therefore, the police officer is competent to register the FIR.

Court's Observations

The Court observed that under the Cr.P.C. the offence under Section 188 of the IPC is cognizable and bailable; however, the Court noted that by virtue of the local amendment made by the State of M.P. vide Notification dated 19^th November 1975 the said offence is made non bailable.

The Court also said that a bare reading of Section 195(1) Cr.P.C. reveals that the provisions contained in the sub-section are attracted at the stage of taking cognizance.

Importantly, the Court said,

"There is no bar under Section 195 of the Cr.P.C. in respect of registration of FIR, therefore, FIR for an offence under Section 188 of the IPC can be registered by the police and after investigation on the basis of the FIR and the material collected during the course of investigation, a competent public servant can file the complaint before the concerned court."

Further, the Court remarked,

"What is barred under Section 195 of the Cr.P.C. is that after investigating the offence under Section 188 of the IPC, the police officer cannot file a final report in the Court and the Court cannot take cognizance on that final report, as at that stage the bar contained in Section 195 of the Cr.P.C. comes into operation."

Citing the ruling of the Apex Court in the cases of State of Punjab Vs Raj Singh and Another 1998 (2) SCC 391 & M. Narayandas Vs. State of Karnataka and others reported in 2003(11) SCC 251 the Court came to the conclusion that by virtue of the provisions contained in Section 195(1)(a) of the Cr.P.C. the power of the police to register the FIR for offences mentioned therein is not curtailed but what is curtailed is the jurisdiction of the Court to take cognizance of these offences without there being complaint in writing of the concerned public servant.

Significantly, the Court observed that the Bombay High Court in the case of Shrinath Gangadhar Giram vs The State Of Maharashtra and Madras High Court in the case of Jeevanandham v. State & Shamsul Huda Bakavi v. State, while taking the contrary view "have failed to take note of the law which has been laid down by the Hon'ble Supreme Court."

Accordingly, the Court held that no case was made out for quashing the FIR registered against the petitioners for offence under Section 188 of the IPC on the ground that the police does not have power to register the FIR for that offence.

Recently, the High Court of Chhattisgarh has held that the police cannot register an FIR for the offence under Section 188 of the Indian Penal Code.

Case title - Zaid Pathan and others v. State of M.P [MCRC No.32779/2020] along with connected applications

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