Due process ignored in FIRs for flouting lockdown

Advocate, Punjab & Haryana High Court

INDIA has been under lockdown for a month now to combat Covid-19. The Union Home Secretary, vide an order dated March 24, in exercise of powers under Section 6(2) of the Disaster Management Act, 2005, issued directions for enforcing a lockdown in all parts of the country for a period of 21 days with effect from March 25. The same was subsequently extended till May 3, vide a notification dated April 15.

To ensure strict compliance with the said notification, the government made it clear that any such violations would be dealt with in accordance with the provisions of the Act and also in accordance with Section 188 of the Indian Penal Code (IPC).

The annexure to the notification provided for an ‘appendix’ laying down information with respect to ‘offences and penalties’ in the event of contravention of the lockdown guidelines. The same are listed under Sections 51 to 60 of the 2005 Act.

The other addendum to the said notification is Section 188 of the Indian Penal Code, which makes disobedience to an order duly promulgated by public servant punishable under law.

As per reports, FIRs are being registered in various parts of the country. In Uttar Pradesh, the police have registered over 20,000 FIRs and booked more than 60,000 people for allegedly violating prohibitory orders. The Maharashtra police have registered over 34,000 FIRs for violation of the lockdown. The overzealous forces have not only registered FIRs, but also showcased a brazen display of police brutality.

The moot question that needs to be addressed is whether the registration of the FIR under Section 188 of the IPC is as per the procedure established by law and passes the test of judicial scrutiny. It would be relevant to advert to Section 195 (1)(a) Code of Criminal Procedure, 1973, as well as many judgments of the Supreme Court of India wherein it has been emphatically held that no FIR can be registered under Section 188, CrPC. Section 195(1)(a), CrPC, mandates that the magistrate can only take cognisance of an offence under Section 188, IPC, on the basis of a ‘complaint’ by a ‘competent officer’. In other words, the locus to initiate criminal proceedings under Section 188 IPC is restricted to a ‘complaint’ which is to be preferred by the ‘authorised officer’ before the magistrate that specifically excludes a police report.

The Supreme Court in the case of C. Munniappan vs State of Tamil Nadu, has unequivocally enunciated the law with regard to violations under Section 188 of the IPC and the procedure that needs to be adopted. The court was of the view that the “law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195, CrPC, are mandatory. Non-compliance with it would vitiate the persecution and all other consequential orders. The court cannot assume the cognisance of the case without such complaint. In the absence of such complaint, the trial and conviction will be void ab initio being without jurisdiction.”

It is further essential to elaborate that the notification dated March 24 was issued in accordance with the provisions of the 2005 Act. The Act is a special statute governing the field during the present pandemic and is a self-contained code providing for penalties and offences. The directions/orders/lockdown guidelines derive their legal source from the said statute. Section 60 of the 2005 Act restricts the locus to a complaint made by a designated authority.

Accordingly, any violation of the provisions of the said Act will have to be dealt with in consonance with the procedure established by the Act. Sections 51 to 60 of the Act deal with “offences and penalties” for violation of the provisions of the Act.

The Act states the cognisance of offences: No court shall take cognisance of an offence under this Act except on a complaint made by—

(a) The national authority, state authority, the Central government, state government, district authority, or any other authority or office authorised in this behalf by that authority or government, as the case may be, or

(b) Any person who has given notice of not less than 30 days in the manner prescribed, of the alleged offence and his intention to make a complaint to the national authority, the state authority, the Central government, state government, district authority or any other authority or officer authorized as aforesaid.

At this juncture, it is important to read Section 2(d) of the CrPC, 1973, which defines a ‘complaint’ as follows:

‘Complaint’— means any allegation made orally or in writing to a magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Further, the Epidemic Diseases Act, 1897, also provides for a penalty under Section 3. The provisions of the Act stipulate that proceedings may be initiated under Section 188, IPC, for any violation of the Act. Even in that eventuality, the state is expected to scrupulously follow the procedure enshrined under Section 195, CrPC, which envisages the filing of a complaint before the magistrate concerned, by the “authorised public servant”.

Notably, on April 16, former Uttar Pradesh Director General of Police Vikram Singh had moved the Supreme Court, seeking the quashing of FIRs registered under Section 188 of the IPC and other provisions for violation of the Covid-19 lockdown.

It is imperative that the lockdown is conscientiously adhered to by one and all in the present crisis. However, the procedure adopted in the registration of criminal cases by way of lodging the FIRs is contrary to the due process of law prescribed by the Criminal Procedure Code, 1973, rendering the proceedings non est (does not exist). The police have bypassed the filing of the complaints before the competent magistrates and have resorted to rampant registration of FIRs for the lockdown violations. The said proceedings are judicially susceptible as the magistrate is statutorily barred from taking cognisance for an offence under Section 188 of the IPC by way of a chargesheet/police report.