Can I get bail when charged under section 188 for breaking lockdown?

472 votes

The government for saving human lives has introduced certain specific measures in the drastic period of Corona spread and these cumulative measures have come to be popularly known as lockdown. Unfortunately, however, some persons have been defying the lockdown instructions which prompted the police to take action against various provisions of law. One such provision being invoked by the police is Section-188 of the Indian Penal Code.

The police are regularly registering FIRs for this offence throughout the country and investigating the matter. Such action of the police has not met with approval in certain sections of legal fraternity on the premise that the offence being of a special kind, the police would have no power to directly initiate action against such violation and has to approach the court for such purpose. 
 

What happens when you are charged under Section 188 of IPC?

Notably, Section 188 IPC has been a consistent feature in most of the orders/directives/notifications by the governments, whether state or central. It is the penal provision invoked in case of non-compliance with the guidelines or directives contained therein. A bare perusal of Section-188 will go to show that violation of lockdown certainly comes under its ambit and therefore is punishable as such.

Section 188 is a part of Chapter X of the IPC, which covers offences related to ‘contempt of the lawful authority of public servants.' It lays down penalties for contempt of orders of public servants such as avoiding service of summons, non-appearance or non-attendance in response to an order, etc.

The provision specifically deals with the offence of disobedience to an order duly passed by a public servant. Simply put, it provides that any person who has the knowledge of an order passed by a competent public servant, by which he is directed to abstain from doing any act or a certain direction with respect to property possessed or held by him, disobeys such direction, he shall be liable to be punished under this section.

The gravity of punishment under this Section varies with the severity of the consequences of the act:

1. If the disobedience of the order causes or tends to cause obstruction or annoyance or injury, or risk of the same, to a person lawfully employed, the offender might face a simple imprisonment of up to one month or fine up to Rs. 200, or both;

2. If such disobedience is of a greater nature, so as to cause or tend to cause danger to human life, health or safety, etc, the offender might face an imprisonment of up to six months and fine up to one thousand rupees or both.

Importantly, as per Section 320 of the Code of Criminal Procedure (CrPC), S. 188 is a non-compoundable offence. That means a compromise cannot be entered into between parties when charged under this section.
 

Can you get released immediately when charged under Section 188?

By virtue of the First Schedule of the CrPC, S. 188 is made a cognizable and bailable offence. Therefore, if you are arrested for a bailable offence, the police can immediately release you on furnishing of surety. You are not required to be produced in court. Non-bailable offences are of a more serious type, which invokes higher punishment. In such cases, the police do not have the power to grant bail. However, even in these cases, when the accused person is produced before the magistrate, he/she has a right to file an application for bail, and the magistrate has the power to grant him/her bail. If he/she does not have a lawyer the person is entitled to legal aid for the purpose of making this application.

LawRato LawRato

963 votes

Yes. you can get bail if booked u.s 188 IPC. Have you been booked or just making academic enquiries. pls let us know accordingly. Still, I would say that we must respect the lockdown. Thanking you in anticipation.

LawRato LawRato

865 votes

Yes, you will get a bail in the police station itself in case your conduct and dealing with police is soft and cordial. check your demeanor with the police and you will get the concessions. in case of unconditional apology, they may not register the case against you. Be soft and apologetic in your behavior in case you have committed breach.
Be safe. Wear your mask. Avoid outings.
thanks

Advocate Rajinder Pal Singh LawRato