Legal Provisions of Section 188 of Indian Penal Code, 1860.
Disobedience to order duly promulgated by public servant:
Disobedience to an order duly promulgated by a public servant has been made an offence under this section. The section states that when an accused knows that a public servant has lawfully promulgated an order, which he is empowered to do, by which he has either directed the accused to abstain from a certain act, or directed him to take certain order with certain property in his possession or under his management, and he disobeys such direction, he shall be punished with simple imprisonment for a term extending up to one month, or with fine extending up to two hundred rupees, or with both if such disobedience causes or has tendency to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed; and if such disobedience causes or has tendency to cause danger to human life, health or safety, or causes or has tendency to cause riot or affray, he shall be punished more severely, that is to say, with simple or rigorous imprisonment for a term extending up to six months, or with fine extending up to one thousand rupees, or with both.
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The explanation attached with the section clarifies that intention to produce harm or contemplation that the disobedience is likely to produce harm is not necessary; and the section is applicable if there is knowledge on the part of the person sought to be punished about the existence of the order which he disobeys, and that his disobedience either produces, or is likely to produce, harm.
Order promulgated by a servant
The word ‘promulgated’ means making known an order openly and publicly. The forms of promulgation may be different, like reading an order in an open court, or publishing the same in the gazette etc. Thus, where it could not be proved that an order, which the accused allegedly violated, was in fact passed by a magistrate, or where an order under section 144, Code of Criminal Procedure,
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1898 (same section in the 1973 Code) was not served in the manner prescribed under the law, this section was held to be not applicable.
If an accused does not know that an order has been promulgated, or if a public servant is not lawfully empowered to promulgate an order, this section does not apply. There is no need to publish an order in a newspaper. The requirements of the section are not fulfilled if it is proved that merely a general notification was issued about the order.
Disobedience causes or tends to cause obstruction, annoyance or injury etc
The disobedience must either cause or it must have a tendency to cause obstruction, annoyance or injury as stated in the section. There has to be a factual proof of annoyance; mere mental annoyance of the concerned authorities is not intended to be included in this section. The first part of the section makes no provision for rigorous imprisonment.
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Where both parties over a disputed land had been prohibited from going on to the land for reaping the harvest of the paddy crop, but one of them went there and did harvest the same in presence of the other who did not do anything at that time, it was held that the person reaping the harvest was guilty under latter part of this section as his disobedience had tendency to cause riot or affray, even though in fact it did not cause the same because of the non-resistance on the part of the other person at the time of harvesting of the crop.
In the landmark decision of Municipal Council, Ratlam v. Vardhichand, a trendsetter in the field of pollution control in India, the Supreme Court held that officers of a municipal council could be held guilty under section 188 of the Code for disobeying, or not complying with, an order passed by a magistrate under section 133, Code of Criminal Procedure, 1973 to close certain pits, repair the drains, remove the heaps of dirt and construct public lavatories within a certain specified period. It was emphasized that lack of funds could not be a valid ground for inaction on the part of the municipality as there was no paucity of funds and funds generated by taxes needed to be utilised properly.
In Bhagirathi Srichandan v. Damodar, the magistrate issued an order under section 145, Code of Criminal Procedure, 1973 attaching certain standing crop. Even though the accused knew about this attachment order he reaped and removed the crop. It was held by the Orissa High Court that since the disobedience of the order by the accused had a tendency to cause riot or affray, an offence under section 188 of the Indian Penal Code was made out.
In Jayantilal Mohanlal Patel v. Eric Renison, the Gujarat High Court gave a surprise decision and held that violation of curfew orders under section 144, Code of Criminal Procedure, 1973 is only a minor offence which could be punished under section 188 of the Indian Penal Code. Therefore, executive orders of shoot to kill for a violation of prohibitory orders under section 144, Code of Criminal Procedure, 1973 is violative of section 144 itself and also section 188, Indian Penal Code and Articles 20 (1) and 21 of the Constitution, and is therefore, void and unlawful.
It has been held in Thavsiyappan v. Periasamy Nadar that where has been a disobedience of an order of the civil court it is not necessary that a complaint should come from that court itself. The criminal court is empowered under law to entertain a complaint regarding the same from any other source also.
The Patna High Court is of the view that cognizance of a complaint of an offence under section 188, Indian Penal Code can be taken only when the complaint discloses that disobedience of the order has led to a consequence as stated either under the second or third para of section 188 of the Code.
If the person charged under this section is able to prove that even though the order made against him was with jurisdiction, it was wrong and improper on merits, the court has to accept the plea and hold him not guilty.
The offence under this section is non-cognizable, bailable and non-compoundable, and is triable by any magistrate.