PROCEDURE FOR PROSECUTION OF OFFENCES FROM SECTION 172 TO 188 I.P.C.

Section 195 of Cr.P.C. bars Court to take cognizance of offences from section 172 to 188 IPC except on the complaint in writing made by the public servant whose order is disobeyed or any other public servant to whom he is administratively subordinate.

Further section 340 Cr.P.C. provides special procedure for prosecution of offences  of section 172 to section 188 of I.P.C and provides that on the basis of complaint filed by the public servant whose order is disobeyed the jurisdictional magistrate takes cognizance in section 343 and proceeds as the case if is instituted on police report.

Since offence of section 188 IPC is cognizable the police has authority to arrest the person under section 41 of the Cr.P.C. 

The confusion arises on power of police to register the FIR .  Though there are some conflicting views of High Court but the view expressed by the Madras High Court in case of Jeevanandam  vs State  represented by Police Inspector , Cri. O.P. number1356/2018 decided on 20 September 2018 Madras High Court is more convincing and is according to the provisions of Cr.P.C.

The  High Court issued following direction to be followed in case of prosecution of offences of section 188 IPC

a)A Police Officer cannot register an FIR for any of the offences falling under Section 172 to 188 of IPC.

b)A Police Officer by virtue of the powers conferred under Section 41 of Cr.P.C will have the authority to take action under Section 41 of Cr.P.C., when a cognizable offence under Section 188 IPC is committed in his presence or where such action is required, to prevent such person from committing an offence under Section 188 of IPC.

c)The role of the Police Officer will be confined only to the preventive action as stipulated under Section 41 of Cr.P.C and immediately thereafter, he has to inform about the same to the public servant concerned/authorised, to enable such public servant to give a complaint in writing before the jurisdictional Magistrate, who shall take cognizance of such complaint on being prima facie satisfied with the requirements of Section 188 of IPC.

d)In order to attract the provisions of Section 188 of IPC, the written complaint of the public servant concerned should reflect the following ingredients namely;

i) that there must be an order promulgated by the public servant;

ii) that such public servant is lawfully empowered to promulgate it;

iii)that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management, has disobeyed; and

iv)that such disobedience causes or tends to cause;

(a) obstruction,annoyance or risk of it to any person lawfully employed; or

(b) danger to human life, health or safety; or

(c) a riot or affray.

e)The promulgation issued under Section 30(2) of the Police Act, 1861, must satisfy the test of reasonableness and can only be in the nature of a regulatory power and not a blanket power to trifle any democratic dissent of the citizens by the Police.

f)The promulgation through which, the order is made known must be by something done openly and in public and private information will not be a promulgation. The order must be notified or published by beat of drum or in a Gazette or published in a newspaper with a wide circulation.

g)No Judicial Magistrate should take cognizance of a Final Report when it reflects an offence under Section 172 to 188 of IPC. 

An FIR or a Final Report will not become void-ab-initio insofar as offences other than Section 172 to 188 of IPC and a Final Report can be taken cognizance by the Magistrate insofar as offences not covered under Section 195(1)(a)(i) of Cr.P.C.

h)The Director General of Police, Chennai and Inspector General of the various Zones are directed to immediately formulate a process by specifically empowering public servants dealing with for an offence under Section 188 of IPC to ensure that there is no delay in filing a written complaint by the public servants concerned under Section 195(1)(a)(i) of Cr.P.C.