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.
Holding thus, the Court quashed an FIR registered against a doctor who was alleged to have violated the directions issued by the Collector in the wake of COVID-19.
Section 188 IPC deals with the offence relating to disobedience of an order promulgated by a public servant.
A single bench of Justice Sanjay K Agrawal noted that as per Section 195(1)(a)(i) of the Code of Criminal Procedure, a court can take cognizance of any offence punishable under Sections 172 to 188(both inclusive) of the IPC only on the complaint in writing of the public servant concerned.
"In order to prosecute an accused for the offence punishable under Section 188 of the IPC, it is imperative to undergo the procedure envisaged under Section 195(1)(a)(i) of the Code i.e. complaint in writing of public servant concerned or some other public servant to whom he is subordinate, otherwise cognizance of offence under Section 188 of the IPC cannot be taken and if this imperative procedure is not complied with, the entire prosecution for offence under Section 188 of the IPC would be rendered void ab initio, as Section 195 of the Code is an exception to the general rule contained in Section 190 of the Code wherein any person can set the law in motion by making complaint", the Court observed.
The State argued that the police was competent to register the FIR as Section 188 IPC was a cognizable offence. In rejecting this argument, the Court noted that the courts take cognizance of cases in which FIRs are registered on the basis of chargesheets(police reports) submitted after investigation under Section 173(8) CrPC. But, in cases of Section 188 IPC, courts are barred from taking cognizance except on a written complaint by the concerned public officer.
The definition of "complaint" under Section 2(d) of the CrPC excludes a "police report", the Court noted.
The Explanation added to Section 2(d) treats only the report submitted by the police in a non-cognizable offence as a complaint. But, Section 188 IPC is a cognizable offence, the Court observed.
"...merely because the offence under Section 188 of the IPC is cognizable offence, that by itself does not authorise the police officer to register FIR under Section 154 of the Code for such offence, the reason being that the registration of FIR would necessarily result in submission of police report under Section 173(8) of the Code which is specifically barred by Section 195(1)(a) read with Section 2(d) of the Code. The definition of "complaint" contained in Section 2(d) of the Code makes it clear that complaint does not include a police report", the Court stated.
The HC was considering a writ petition filed by Dr. Apurva Ghiya to quash the FIR registered by Ambagad Chowki Police Station of Rajnandgaon District.
Advocate Shalvik Tiwari appeared for the petitioner.
In June 2020, she reached her native place in Chhattisgarh from New Delhi after obtaining the requisite E-Pass. She told the court that she had informed the Chief Medical & Health Officer, Rajnandgaon, about her arrival.
After she was tested positive for COVID-19, the FIR was lodged against her alleging that she had failed to inform Chief Medical & Health Officer, Ambagad Chowki, about her arrival from Delhi.
Recently, the Madras High Court had quashed an FIR for offence under Section 188 IPC on the same reasoning.
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