In Delhi High Court, Petitioner, Decathlon Sports India Pvt. Ltd filed a petition requesting to quash an FIR under Section 188 of the Indian Penal Code, 1860 (for short, "IPC"), registered during COVID-19 lockdown on 30th December 2021 for not closing the showroom in Delhi within prescribed hours.
Facts of the case
The FIR records that the person in-charge of Decathlon Sports India Pvt. Ltd. ignored the instructions of the Beat Patrol party of Constables that the closing time for shops in Delhi was 8 pm in view of the Covid19 notification.
Petitioner who failed to close the showroom was proceeded against for having violated the said Covid19 notification and a case under Section 188 IPC was registered.
Petitioner’s Contentions
Relying on the previous judgments, the petitioner submitted that no FIR could have been registered against the petitioner without the written complaint of the Competent Authority. FIR having been improperly registered ought to have been quashed. It was submitted that the quashing was necessitated as the police were summoning the petitioner, unlawfully under Section 41A Cr.P.C.
Respondent’s Contentions
Respondent/State, on the other hand, submitted that the complaint under Cr.P.C. has been obtained from ACP. It was further submitted that since the violation of the Covid-19 norms was a cognizable offence, the police were entitled to take cognizance of the commission of the offence and register the FIR.
"Cognizable offence" has been defined under Section 2(c) Cr.P.C., as an offence for which a police officer could arrest without warrant. In other words, a "cognizable offence" is one in relation to which the police can take immediate action, affecting the liberty of a person.
Court’s Observation
The Government of NCT of Delhi vide its order bearing No.F.60/DDMA/COVID-19/2021/500 dated 28th December, 2021 had allowed shops/establishments dealing with non-essential goods and services to remain open between 10 am to 8 pm on odd-even basis.
Disobedience to an order duly promulgated by a public servant is an offence, which would entail simple imprisonment or fine, or both, where disobedience was to endanger human life, health or safety.
It is common knowledge that during the Covid19 pandemic, various orders had been issued to regulate public activity in order to prevent the spread of the deadly disease. It was sufficient for the purposes of the Section 188 of IPC, that in view of the order, duly promulgated by a public servant, petitioner’s disobedience produced or was likely to produce harm.
The bench opined that to say that the FIR could not have been registered is untenable. The present petition was disposed of by declining the prayer to quash the FIR in question.
However, the bench directed that the SHO concerned should ensure that the complaint is forwarded to the concerned Magistrate's court.
Justice Asha Menon observed that it would be appropriate for the police to take quick action in all the pending matters relating to violation of orders passed under the Disaster Management Act, 2005 by filing complaints as required under law before the court and the courts ought to dispose of these matters, without further delay. The bench also suggested that the police should adopt a simpler procedure in such cases, where they are dealing with ordinary citizens, who have no criminal background or evident propensities to commit a crime.
An offence under Section 188 IPC is in the nature of a petty offence, unless combined with some other serious offences. Thus, petty offences can be summarily tried. The more serious offences punishable with imprisonment upto two years can be tried as summons cases while a case relating to an offence punishable with imprisonment for a term exceeding two years would be tried as a warrant cases.
The bench further stated that an offence, such as the one under Section 188 IPC, cannot be equated with theft, mischief, cheating, criminal breach of trust, or causing of bodily harm, such as, hurt or attempt to culpable homicide, etc.
The Court noted that to drag such matters over months through the issuance of Notices under Section 41A Cr.P.C., to appear before the police station, the consequent necessity of filing a Section 173 Cr.P.C. report, have only led to complication of matters and colossal waste of time and human resources.
The High Court observed that the purpose of powers given to the police under the Disaster Management Act cannot be converted into one that subjects the offender to unnecessary harassment and entails violation of Article 21 of the Constitution of India, guaranteeing the right to life, of which liberty is an inalienable facet.
Case Title: Decathlon Sports India Pvt. Ltd. v. State of NCT of Delhi
Bench: Hon'ble Ms. Justice Asha Menon
Date: 4th August 2022
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