HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.5453 OF 2021
ORDER:
The present Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973, to quash the proceedings against the petitioners in Crime No.121 of 2021 of Naspur / CCC Police Station, Ramagundam District.
2. The petitioners herein are accused Nos.1 to 7 in the said Crime. The offences alleged against them are under Sections - 188, 186 of IPC, Section - 3 of the Epidemic Diseases Act, 1897 (for short 'E.D. Act') and Section - 51 (b) of the Disaster Management Act, 2005 (for short D.M. Act) respectively.
3. Heard Mr. D. Pochaiah, learned counsel for the petitioner and learned Assistant Public Prosecutor appearing on behalf of respondent Nos.1 to 3 - State.
4. CASE OF PROSECUTION:
As per the contents of complaint, on 25.04.2021 at about 11.00 hours, complainant, Sub-Inspector of Police, Naspur, along with his party, went to Dooragaripalli village of Mancherial Mandal to apprehend petitioner No.1 herein in Crime No.116 of 2021 registered for the offence under Sections - 447, 427 and 506 of IPC on the complaint lodged by mother of respondent No.4 and reached the house of petitioner No.1. In the mean while, petitioner No.1 along with other petitioners obstructed the legitimate duties of complainant KL,J Crl.P. No.5453 of 2021 2 in not arresting petitioner No.1, and thereby all the petitioners disobeyed G.O.Ms.No.82, dated 11.04.2021 issued by the Government of Telangana by not wearing the face masks in public place. Accordingly, the complainant registered the aforesaid crime suo-moto against the petitioners herein for the aforesaid offences.
5. CONTENTIONS OF PETITIONER:
i) Mr. D. Pochaiah, learned counsel for the petitioners, would submit that there is a civil dispute pending between the petitioners and respondent No.4 and others in respect of land in Survey No.191/3a, to an extent of Acs.2.02 guntas, situated at Dorgaripalli, Garmilla Shivar, Mancherial Mandal and District vide O.S. No.112 of 2021 on the file of learned Principal Junior Civil Judge, Mancherial. In the said case, the learned Junior Civil Judge passed interim injunction in I.A. No.362 of 2021 on 08.04.2021 against respondent No.4 and others. The petitioners brought to the notice of the complainant, respondent No.4 and other authorities about the passing of the said order.
ii) Learned counsel would further submit that complaint dated 13.04.2021 was given to respondent No.2, but they did not act upon it. Then, the petitioners filed private complaint before the learned Magistrate under Section - 200 of Cr.P.C. who in turn referred it to the police for investigation. Thereupon, a case in Crime No.166 of 2021 was registered against respondent No.4 and others on 02.06.2021. He would further submit that to take revenge against the petitioners, KL,J Crl.P. No.5453 of 2021 3 respondent No.4 herein got foisted the present Crime No.121 of 2021 against the petitioners.
iii) Learned counsel would further submit that the petitioners are innocent of the offences alleged against them. The complaint does not attract the ingredients of offences alleged against the petitioners.
iv) With the aforesaid submissions, the learned counsel sought to quash the proceedings in the present crime against the petitioners.
6. CONTENTIONS ON BEHALF OF PROSECUTION:
i) Learned Assistant Public Prosecutor would submit that there are specific allegations against the petitioner herein. There are triable issues to be investigated into by the Investigating Officer. The petitioners have to prove their innocence. The defence taken by the petitioners may not be considered in the present petition filed under Section - 482 of Cr.P.C.
ii) With the aforesaid submissions, learned Assistant Public Prosecutor sought to dismiss the present petition.
7. FINDING OF THE COURT:
i) The main allegation against the petitioners herein by the complainant, Sub-Inspector of Police, is that when he went to the house of petitioner No.1 for arresting him in Crime No.116 of 2021, petitioner No.1 and other petitioners obstructed him in discharging his duties to arrest petitioner No.1 and disobeyed G.O.Ms.No.82, dated 11.04.2021 issued by the Government of Telangana by not wearing KL,J Crl.P. No.5453 of 2021 4 the face masks in public place. In view of the same, he has registered the present case suo-moto against the petitioners.
ii) In view of the above, the main grievance is that the petitioners committed the offence by not wearing face masks in public place and thereby they have committed the aforesaid offences.
iii) It is also relevant to extract purport of G.O.Ms.No.82 of General Administration Department, dated 11.04.2021, issued by the Government of Telangana, which is as under:
"Whereas with the objective of preventing the spread of the COVID-19 disease, the wearing of face masks has been made mandatory in all public places, work spaces and means of transport in the G.O 2nd read above.
2. Whereas it has also been mandated that any deviation in this regard shall attract prosecution under section 51 to 60 of Disaster Management Act, 2005 and section 188, IPC as well as other applicable laws.
3. It is further reiterated that failure to wear a face mask as mandated above shall attract a penalty of Rs. 1,000/-. 4. In exercise of powers conferred under the Disaster Management Act 2005, the undersigned, in his capacity as Chairperson, State Executive Committee hereby issues directions to all Collectors & District Magistrates and Commissioners / Superintendents of Police in the state to strictly implement the above instructions."
iv) Section - 3 of the E.D. Act is a sunder:
3. Penalty.--(1) Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860).
(2) Whoever,--
(i) commits or abets the commission of an act of violence against a healthcare service personnel; or KL,J Crl.P. No.5453 of 2021 5
(ii) abets or cause damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.
(3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code (45 of 1860) to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees."
v) Section - 51 of the D.M. Act is as under:
"51. Punishment for obstruction, etc.--Whoever, without reasonable cause--
(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions KL,J Crl.P. No.5453 of 2021 6 results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years."
vi) In view of the above, it has to be seen whether the petitioners have committed the offence in a public place or not. However, it is clear from the contents of complaint that when the complainant - Sub-Inspector of Police reached the house of petitioner No.1 to apprehend him in Crime No.116 of 2021, petitioner No.1 along with other petitioners obstructed his legitimate duties by not arresting petitioner No.1 and disobeyed the aforesaid G.O. by not wearing face masks in 'Public Place'. Thus, it is clear from the said contents of complaint that the complainant went to the house of petitioner No.1, where the petitioners obstructed him in not arresting petitioner No.1 herein. It is a factual aspect. It is at crime stage. The Investigating Officer has to investigate into the said aspect. Therefore, this Court is not inclined to interdict the investigation at the threshold.
vii) As far as the offences under IPC are concerned, in N.T. Rama Rao v. The State of A.P., rep. by Public Prosecutor1 while dealing with the offences under Sections - 188 and 283 of IPC, the learned Single Judge held as under:
"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting 1 . Criminal Petition No.5323 of 2009, decided on 17.09.2009 KL,J Crl.P. No.5453 of 2021 7 of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure.
In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.
6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one KL,J Crl.P. No.5453 of 2021 8 place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.
7) As the complaint has failed due to its unsustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."
viii) In Thota Chandra Sekhar v. The State of Andhra Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari District2 relying on various judgments including N.T. Rama Rao1 and the guidelines laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal3, more particularly, guideline No.6, which says that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious remedy to redress the grievance of the party, a learned Single Judge of High Court of Judicature at Hyderabad for the States of Telangana and Andhra 2 . Criminal Petition No.15248 of 2016, decided on 26.10.2016 3 . (1992) Supp. 1 SCC 335 KL,J Crl.P. No.5453 of 2021 9 Pradesh quashed the proceedings in the said C.C. by exercising power under Section 482 of Cr.P.C. It further held that the proceedings shall not be continued due to technical defect of obtaining prior permission under Section - 155 (2) of Cr.P.C. and taking cognizance on the complaint filed by V.R.O. and it is against the purport of Section - 195 (1) (a) of Cr.P.C.
ix) In view of the above said authoritative pronouncements, coming to the case on hand, the only allegation against the petitioners herein is that they have obstructed the complainant in not discharging his legitimate duty to arrest petitioner No.1 in other crime, and thereby committed the aforesaid offence. The complainant is Sub-Inspector of Police. He registered the present crime suo-moto against the petitioners without following the mandatory procedure laid down under Sections - 155 and 195 (1) (a) of Cr.P.C. Section - 188 of IPC deals with 'disobedience to order duly promulgated by public servant. According to it, 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 KL,J Crl.P. No.5453 of 2021 10 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. Thus, the said ingredients are lacking in charge sheet filed by the police in the said case.
x) In view of the said principle, the proceedings in Crime No.121 of 2021 for the offences under Sections - 188, 186 of IPC are liable to be quashed against the petitioner herein. Accordingly, they are quashed.
xi) There are civil disputes pending between the petitioners and respondent No.4 and others in respect of agricultural land and even court below has granted temporary injunction against respondent No.4 and others. Complaint and counter complaints are also lodged against each other. All the said aspects are factual aspects which need to be investigated by the Investigating Officer during the course of investigation.
8. CONCLUSION:
i) Applying the principle laid down in the above said two judgments and in view of the above said discussion, the proceedings in Crime No.121 of 2021 of Naspur Police Station, Ramagundam District, for the offences under Sections - 186 and 188 of IPC against the petitioners herein are quashed. Considering the punishment prescribed under Section - 3 of the E.D. Act and Section - 51 (b) of KL,J Crl.P. No.5453 of 2021 11 the D.M. Act, the Investigating Officer is directed to follow the procedure laid under Section 41-A of Cr.P.C. and the guidelines issued by the Apex Court in Arnesh Kumar v. State of Bihar4. The petitioners are also directed to cooperate with the Investigating Officer in concluding investigation.
ii) The present Criminal Petition is accordingly allowed in part. As a sequel, miscellaneous petitions, if any, pending in the Criminal Petition shall stand closed.
_________________ K. LAKSHMAN, J 16th July, 2021 Mgr 4 (2014) 8 SCC 273.