All About Section 188 of Indian Penal Code

Introduction To Section 188 of the Indian Penal Code

In the scheme of the Indian Penal Code (IPC), Section 188 imposes punishment on whoever disobeys an order duly promulgated by a public servant. It prescribes the punishment for disobedience of the lawful orders of a public servant, especially when the disobedience results in obstruction, annoyance or injury to any person lawfully employed or;

• danger to human life, health or safety.

However, in Bharat Raut v State[1], it was held that mere disobedience of an order of a public servant is not punishable. The disobedience must lead to the consequences of narrated in the section. A conviction cannot sustain if the disobedience does not cause or is not intended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed there.

The orders must also be made by public servants in public interest and cannot pertain to orders made by such officers in civil proceedings between two parties. This is also in tandem with the word ‘promulgated’ mentioned in the section. The word ‘promulgated’ means making an order known publicly. It can take various mediums from newspaper publishing to media announcements. The exception to the same is when the public servant is not lawfully empowered to promulgate an order, this section will not apply.
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Section 188 IPC and Section 144 CrPC 

On the other hand, when orders under Section 144, Criminal Procedure Code (CrPC), have been passed, any disobedience of the same will result in the commission of an offence under Section 188, IPC. Similarly, in Ram Samujh v State[2] the Allahabad High Court held that Section 188 includes within its ambit orders passed under Section 144 as also Section 145 also.

In all cases involving the section, it is essential to prove that the accused had knowledge of the orders passed, for which violation, he was being prosecuted. As held in Re Sundara Mudaliar[3], the question of knowledge is generally a matter of inference from the evidence brought on record.

Elements of Section 188 

Thus, Section 188 contains the following elements for a conviction to be secured[4]:

1. There must be an order promulgated by a public servant;
2. The public servant must be lawfully empowered to promulgate such order;
3. The accused must have disobeyed such order;
4. Such disobedience must have caused or tend to have caused: Obstruction, injury, annoyance or risk to any person lawfully employed; or danger to human life, health or safety; or riot or affray.
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It has been held that no conviction under Section 188 can be made unless the likely consequences of the breach of the order are proved positively[5]. In Ratlam Municipality v Vadirchand[6], a trendsetter in the field of pollution control cases in India, the Supreme Court held a municipal council through its officers liable under Section 188 IPC for disobeying and non-compliance with an order passed by a magistrate under Section 133 CrPC, to close certain pits, repair the drains, remove dirt and construct public bathrooms. Further emphasis was put on the fact that lack of funds cannot be a valid ground for passiveness on the part of the municipality. The municipality was expected to utilize the funds that the received from the State Government properly for the maintenance of public areas.

Another case is of Bhagirathi Srichandan v Damodar, where the magistrate issued an order under Section 145 CrPC for attaching standing crops and then subsequently reaping a removing them. It was held by the Orissa High Court that since such disobedience had a tendency to cause a riot or affray, Section 188 IPC could be invoked.
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Classification of Offence 

The punishment under this Section is classified under two heads. Under Part 1, the punishment extends to imprisonment for 1 month, or fine of 200 rupees or both. It is a cognizable, bailable and non-compoundable offence. Under Part 2, the punishment extends to imprisonment for 6 months, or fine of 1000 rupees or both. This head makes the offence a cognizable, bailable and non-compoundable one.

[1] AIR 1953 Pat 376

[2] AIR 1967 All 579

[3] AIR 1937 Mad 535

[4] PSA Pillai, Criminal Law (Lexis Nexis 2017) 476

[5] State v Tugla, AIR 1955 All 423

[6] AIR 1980 SC 1622