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Section - 188 of Indian Penal Code, 1860 & COVID - 19

By Ashwin Hawelikar, Managing Partner on April 14, 2020

The Epidemic Diseases Act, 1897 (EDA) has been enacted for the better prevention of spread of the Dangerous Epidemic Diseases. Under the EDA, State & Central governments are empowered to take appropriate measures to prevent the outbreak of any disease and its spread thereof. As per section 3 of the EDA, any directions issued by State & Central government, if disobeyed then Police can register a case under Section 188 of the Indian Penal Code, 1860. Considering the danger & threat of COVID – 19 the State as well as Central government has invoked the provision of EDA and has been taking actions against the wrongdoers/ violator for flouting orders.

Earlier the government had invoked the provisions of EDA to curb the outbreaks of diseases such as Swine flu, Dengue, & Cholera.

Section 188 of the Indian Penal Code?

“Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, 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, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both;

and

if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

Section 188 relates to Disobedience to order duly promulgated by public servant. It says violators can be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

What if you violate the lockdown orders?

The Police will take precautionary action and arrest the violator immediately and release him after registration of crime in their record. Considering the current scenario when prisoners have been released from Jail, the violator will also be released by the police on Personal bond. The matter will be referred to local Judicial Magistrate for further action on it. The Magistrate may imprison or release the violator by imposing a fine. The severity of the punishment will depend upon how COVID – 19 has spread in the locality. The offense is cognizable however bailable.

The violator/s can contest the matter before Magistrate to prove himself not guilty of the offense. The Police has to adduce evidence that the violator had knowledge of the order / directions passed/issued by State / Central government which he/she has alleged violated. Mere proof of a general notification promulgating the order/directions by State / Central government does not satisfy the requirements of the section. Mere disobedience of the order does not constitute an offence in itself, it must be shown that the disobedience has or tends to a certain consequence.

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