Meaning of Section 188 of the Indian Penal Code related to disobedience to order which is promulgated by the public servant.
- That if any person knows that by an order promulgated by a public servant who is legally empowered to promulgate such order. And he is ordered to abstain from a certain act or to take certain order concerning certain property in his possession. Or under his management, he disobeys such direction shall, if such disobedience causes or tends to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully employed. Punishment shall simple imprisonment for one month. Or with fine which may also extend to two hundred rupees or with both,
- Further, if such disobedience shall causes or tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray. Punishment shall imprisonment of either description for a term which may extend to six months. Or with a fine of one thousand rupees or with both. Section 188 of the Indian Penal Code is cognizable, bailable and non-compoundable offence.
It is not compulsory that the intention of the offender to produce harm or contemplate his disobedience as likely to produce harm. Therefore, it is sufficient that the offender knows of the order which he disobeys. And that his disobedience produces or which is likely to produce harm.
- It is required a promulgated by a public servant
- The public servant must have lawfully empowered to promulgate such order
- A person must disobey the order
- Such disobedience must cause or tend to cause obstruction and injury.
Meaning of Promulgation (Meaning Section 188 of Indian penal Code)
Promulgation is to make known by public declaration to publish or to proclaim. So, the Promulgation of an order connotes publication of an order publicly and openly. Hence, it does not take and private information. Therefore, there is no particular mode has prescribed for Promulgation of the order contemplated in section 188 of IPC. Hence, Promulgate can be in various ways. And it may also the beat of drum or notification in the gazette.
Section 188 applies only in case of the promulgation of an order. The word promulgate connotes two ideas 1) make known of an order 2) this means by which the order has made known must by something done openly and in public. Hence this section has not attracted in case of a disobedience of an order of Rent controller. This is because the Rent Controller is a public servant.
Disobedience order under section 144 of CrPC
However, mere disobedience of an order under section 144 of Cr.P.C. is not punishable under section 188 of IPC. The act done in disobedience of the order must be of such a nature that it cause or tend to cause annoyance or obstruction to the person lawfully employed. Where an order under section 144 of CrPC promulgated by the Commissioner of police banning procession was to prevent a riot, looting and arson the mere disobedience of the order under section 144 of CrPC by accused by joining the procession does not amount to an offence under section 188 of CrPC.
Mere disobedience of an order promulgated by a public servant does not ipso facto constitute an offence under this section. It must show that the disobedience of an order promulgated by a public servant causes or tend to cause a)obstruction, annoyance or injury risk of it, to any person lawfully employed. b) danger to human life, health or safety. c) riot.
Knowledge of Promulgate of order
It is not sufficient to prove that the order has been duly promulgated. But, there must be enough evidence that the accused knew the order disobedience of which has charged. That the knowledge of the offence is the important part of the offence u/s 188 of the Indan Penal Code.
Mere Disobedience is not offence unless it entails one of other of the consequences mentioned in the section. It must also cause or tend to obstruct any person lawfully employed.
Cognizance by the magistrate (Meaning of Section 188 of Indian penal Code)
The magistrate can not take cognizance of the offence under section 188 of the Indian Penal Code without the complaint of the public servant. Hence, there is no conviction for the offecne u/s 188 of India Penal Code, if there is no evidence to show that the disobedience tends to cause obstruction, annoyance or injury.
Breach of Peach- Ram Gopal Vs Emporer (Section 188 of Indian penal Code)
The evidence of disobedience would likely to cause a breach of the peace is necessary to convict the accused. Therefore, to prove disobedience would likely to cause a breach of the peace u/s 188 of IPC, the breach of peace and annoyance has to prove first.
Evidence on record- Shaikh Mahboob Vs State of Maharashtra
That the mere presence in the court premises would not constitute an offence under section 188 of IPC. But when trial magistrate found that the accused has involved in some offences within the court premises contrary to the prohibitory order of District and Sessions Judge. And the finding supports the evidence on record. Therefore, the conviction is proper.
Evidence to prove the guilt of the accused (Meaning of Section 188 of Indian penal Code)
To prove the offence under this section, the prosecution has to prove
- that the order was promulgated
- that it was promulgated by a public servant
- such public servant was lawfully empowered to promulgate the same.
- such order directed the accused to abstain from a certain act, or to take certain order, etc
- the accused knew of such direction, annoyance, or injury or risk of the same to a person lawfully employed or that such obedience caused or tend to cause, danger to human life, health or safety, or cause a riot or an affray.
If there is no for chaining up of dogs. And A suffers his dog to run about loose. So, A will not liable for any punishment for any mischief which the animal may do. Or it has to prove that A knew the animal is dangerous. But if the order for confining dog issued. And if A knew of that order, it will no defence for him to alleges. And even to prove that he believes his dog is perfectly harmless. If the court finds that A’s disobedience has caused harm. It will liable for punishment. And on the other hand if the court feels that there was no danger and that the local order was a foolish one. Hence, A will not liable for punishment.
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