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Scope of section 188 of the Indian penal code

Emergencies and disasters, generally throw unique challenges to the government because of their unpredictability. Whatever may be the other requirements but the response must include a coordinated approach between the governments at the local, state and union levels.

The current situation demands no less than this. A few days back, the Prime Minister announced lockdown to contain the spread of COVID-19. But there were people who did not comply with the orders. A legal action is expected to be taken against the offenders under the Epidemic Diseases Act, 1897[1]. They are likely to be punished according to section 188 of the Indian Penal Code, 1860[2].

But these are uncertain situations under which adopting the normal procedure of law could prove to be a disaster for a lot of people. There are skirmishes around the legality of the punishments that are being given to the people not complying with the government orders.

The article deals with this very point. It very broadly deals with the provisions of the Epidemic Diseases Act and also provides some suggestions for its better functioning. The matter of scuffle between section 188, IPC and section 195, CrPC[3] is also looked into.

The Epidemic Diseases Act, 1897:
Brief origin of the Act:
The Act was introduced by the colonial government to tackle the bubonic plague which spread in the then Bombay Presidency in 1890's.The governor general of colonial India at that time conferred the local authorities with special powers to implement the measures necessary to tackle the disease. Using the powers conferred on to them by this Act, the colonial authorities used to search for suspected plague cases in homes and among the passengers.

They even forcibly segregated, evacuated and demolished the infected places. Public meetings were disrupted, assembly of crowds prevented, festivals were banned and pilgrimages were halted. There was alleged humiliation of and violence against women that gave rise to concerns among the citizens, and even riots were reported in some areas.[4]

Powers of the central and state governments under the act:
It is a 1-page Act consisting of 4 sections with the aim of providing better protection and prevention from the spread the 'Dangerous Epidemic Diseases', though this term is not defined anywhere in the act.

Section 2 of the Act describes the powers of the government which can be put down as follows:
Once the state government is satisfied that the state or any of its part is threatened with the outbreak of a dangerous epidemic disease; and if it thinks that the existing provisions of the law are insufficient for containing it, only then the state may empower or require any person to take measures.

Also, through a public notice, it can prescribe some temporary regulations to the public so that people may observe them. The state government may prescribe regulations/ guidelines for the purpose of:
  • Inspection of the persons travelling by railway or through any other means
  • And the segregation in hospitals, temporary accommodations or otherwise, of the persons who are suspected with being infected of any such disease by the inspecting officer.

The act was amended in 1956 to provide the central government with the power to prescribe regulations and impose restrictions in whole or any part of the country to control and prevent the outbreak of deadly diseases. Health is a state subject but by invoking section 2 of the Act, advisories and directions given by the Ministry of Health and Family Welfare are enforceable in whole of the country.

An ordinance was promulgated on April 22, 2020 which seeks to amend the Act. This was done with the purpose to include protections for the healthcare professionals who combat the epidemic diseases and to prevent the spread of such diseases.

The Central Government is empowered through Section 2A of the act:
  • To inspect any ship leaving or arriving at any port
  • For the detention of any person intending to sail therein, or even arriving thereby.
Some of the state and union territories have also issued emergency measures in accordance with the Epidemic Disease Act to tackle with COVID-19.

These include:
  • The Maharashtra Epidemic Diseases COVID-19 regulations, 2020
  • The Delhi Epidemic Diseases COVID-19 regulations, 2020
  • Punjab Epidemic Diseases COVID-19 regulations, 2020
  • Himachal Pradesh Epidemic Diseases COVID-19 regulations, 2020

Section 3 of the Act:
Section 3 of the Act declares that any person who disobeys any regulation or order under made under this particular Act shall deemed to have committed an offence which is punishable under section 188 of the Indian Penal Code, 1860. Section 188, IPC imposes punishment on a person who disobeys an order which is promulgated by a public servant.

However, the punishment is divided into two categories:
  • Disobedience of the order accompanied with the happening of or even the risk of obstruction, injury or annoyance, is punishable with simple imprisonment up to a period of one month and/fine of up to Rs. 200.
  • When this disobedience is accompanied with the possibility of danger to human life, health or safety, or with the happening of or even the risk of a riot or an affray, it is punishable with imprisonment of up to 6 months and/or fine u to Rs. 1000.

Before moving any further, a brief understanding of section 188, IPC is required. To be punishable under this section, the order has to for a public purpose and that too by public officials. Illustration: An order is promulgated or brought into public notice by a public servant who is lawfully empowered to do so. The order directs that a religious procession must not pass through a particular street. B knowingly disobeys the order which causes danger of riot.

Therefore, B committed the offence which is defined in this section. Another example is of an order commanding an assembly of 5 or more persons to disperse. Another requirement is of evidence which shows that the accused has knowledge of the order which he has disobeyed or which he is charged. Mere disobedience of the order is no offence in itself; rather it must be proved that it has led to certain consequences. 'Mens Rea' or 'guilty mind' is not a condition under this section.

Applicability of section 188, IPC at the time of lockdown
According to the first schedule of the Code of Criminal Procedure, 1973, section 188, IPC is a cognizable and a bailable offence. The common procedure in these cases is to arrest the accused without a warrant, register an FIR under section 154, CrPC and investigation by the police. Eventually, a final report is submitted after the completion of the investigation. On the basis of this report, the court may start trial after taking cognizance.

This procedure and the complexities associated with it can be understood better through a recent example. A PIL titled Vikram Singh v. Union of India [5]was filed in the Supreme Court seeking to quash the FIR's registered under section 188, IPC for lockdown violations. The petitioner argued that section 195, CrPC bars the filing of an FIR as it bars the court to take cognizance of any offence which is punishable under section 172-188 of the IPC except on a written complaint of the public servant concerned (or to some other public servant to public servant to whom he is administratively subordinate).

There is a clear conflict between section 188, IPC and section 195 CrPC as under the former, the police can register an FIR and then follow the usual procedure. But, under the provisions of the latter, the court cannot take cognizance of the offences punishable under sections 172-188of the IPC till the time a written complaint has been given to the court by a public servant concerned.

In Raj Singh v. State [6]it was held that there is no restriction on the exercise of statutory power by the police in the matters related to arrest, investigation and giving the final report. On the other hand, in Jeevanandham v. State[7], it was held that the court take cognizance just on the basis of charge sheet and therefore, the whole exercise of registering FIR, investigation and final report becoming futile.

Trying to resolve the conflict:
Till now, the problem seems to arise when we adopt the usual approach while dealing with an offence punishable under section 188, IPC. This is due to the bar/ embargo created by section 19(1) (a), CrPC. To resolve this conflict, a deviation from the usual procedure is required i.e. once an offence under this section is committed, then the registration of FIR's, investigation and final report could be carried out in the usual manner.

However, along with this, the public officer who promulgated the order shall too give a complaint to the court in writing. But according to the Jeevanandham case, the High Court doesn't seem to be acting of this suggestion, even when it seems to be apt in the current scenario.

Another logical way of approaching this conflict is when the police officer treats the written complaint submitted by the public servant to the magistrate an as informal complaint given to the police officer himself as FIR; then start the preliminary investigations and keep the findings with him. He can provide findings to the court only when it orders inquiry/investigations into the matter.

What's worth mentioning is that, in the current scenario when the courts are not fully operative, it's not possible for the concerned public servant to approach the court and submit his complaint in writing. In such a case, the public servant may give an informal complaint to the police. And then police prepares a preliminary informal report of the investigation conducted in the matter. When the time comes to practically approach the courts, the public servant may give the formal complaint in writing along with the findings of the preliminary investigation conducted if any.

Thereby, considering the importance of time, the preliminary investigation done by the police right after receiving an informal complaint is much better than the investigation done in the regular process. The problem which arises for the police here is that being both a complainant as well as an investigator may lead to the argument that the police are biased. But in whichever case, the ultimate authority to decide on the matter lies with the court.

The administratively superior officer (mentioned in section 195 (1) (a)) may supervise the same and prevent any arbitrariness and unfairness. Even in the case of any irregularity, he court is authoritative enough to reject the findings of the investigation and can also order a fresh investigation. Adopting this approach, both the provisions can operate together by following the rule of harmonious interpretation.

The Act is regulatory in nature and lacks a specific focus from the point of view of public health. The duties of the government in relation to controlling and preventing the epidemic are nowhere described in the Act which surely forms the basis of ineffectiveness of the current policies by the government. People's interests are not taken onto consideration. It is more or less like a guidance document without containing any clear executive instructions.

A well structured law needs to be laid down. The required help can be taken from some of the already existing legal provisions in our country including the Indian Penal Code, 1860, Livestock Importation Act, 1898, Indian Ports Act of 1908, Aircraft Rules of 1954 and the Drugs and Cosmetics Act of 1940. The task of combining all these legislations including a single effective one, though challenging could prove to be of great help for future similar situations. For the purpose of imposing penalties upon people in these uncertain situations, various provisions of the IPC and CrPC need to be harmoniously constructed for the better good of the people.

There is a dire need to strengthen legal framework in order to control and prevent the spread of deadly diseases such as the COVID-19 in India. Though most of the states have developed their own public health laws and some amended the provisions of their Epidemic Diseases Act, these acts vary in quality and content. Thereby, India requires an integrated, comprehensive, well-structured and actionable law for preventing such outbreaks. Also, the approach needs to be people-centered and rights-based.

  1. The Epidemic Diseases Act, 1897 (Act 3 of 1897)
  2. The Indian Penal Code, 1860 (Act 45 of 1860), ss. 188
  3. The Code of Criminal Procedure, 1973 (Act 2 of 1974), ss. 195
  4. Rakesh PS, 'Indian Journal of Medical Ethics' (2016), accessed on 25 June 2020.
  5. Writ Petition (Criminal) Diary No(s). 10953/2020
  6. (1998) 2 SCC 391
  7. Crl. OP (MD) No. 1356 of 2018

    Award Winning Article Is Written By: Ms.Srishti Yadav
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