Iqbal Chahal vs State Of Maharashtra
2022 Latest Caselaw 11798 Bom

                                                          14-crwp3923-2022.doc


 GRM
       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION

           CRIMINAL WRIT PETITION NO. 3923 OF 2022

 Iqbal Chahal                                   ... Petitioner
            V/s.
 The State of Maharashtra & Ors.                ... Respondents

 Mr. Ashok Mundargi a/w Mr. Joel Carlos & Mr. Jayant
 Bardeskar i/b Mr. Sunil Sonawane, Advocate for the
 Petitioner.
 Mr. R. M. Pethe, APP for the State/Respondent.
 Mr. Mukesh Gholap, PSI attached to Mulund Police
 Station.
 Mr. Nilesh Ozha, Mr. Vijay Kurle, Mr. Ishwarlal
 Agarwal, Ms. Meena Thakur, Ms. Deepika Jaiswal, Mr.
 Shiv Mishra, Ms. Snehal Surve, Mr. Abhishek Mishra,
 H. Shaikh, Mr. Vikas Pawar, Mr. S. Shah, Ms. Chetna
 Patil, Advocates for Respondent No. 3.

                               CORAM : AMIT BORKAR, J.

                               DATED     : NOVEMBER 18, 2022
 P.C.:

1. In this writ petition, the petitioner is challenging the order dated 2nd November, 2022 of issuance of process for the offence under Sections 166, 167, 304(A), 420 and 120(B) of Indian Penal Code, 1860 and under Sections 51(b), 54 and 55 of Disaster Management Act, 2005.

2. The learned Advocate for the complainant raised preliminary objection that in view of availability of statutory remedy under Section 397 of Code of Criminal Procedure, 1973, the petition

14-crwp3923-2022.doc

under Article 226 of Constitution of India r/w Section 482 of Code of Criminal Procedure, 1973, is not maintainable. He in support of his submission relied upon the judgments of the Hon'ble Apex Court in the case of Daxaben v/s. State of Gujarat and Others reported in 2022 SCC OnLine SC 936 and in the case of Ramona M. Chandiramani v/s. Arunoday Mills Ltd. & Ors. reported in 2005 SCC OnLine Bom 1705.

3. The learned Senior Advocate appearing for the petitioner submitted that considering the nature of order passed by the learned Magistrate, the petition invoking power of this Court under Section 482 of Code of Criminal Procedure, 1973 r/w Article 226 of Constitution of India is maintainable. He further submitted that in case of exercise of power, which amounts to abuse of process of the Court or other extra-ordinary circumstances, this Court has inherent jurisdiction to entertain the petition under Section 482 of Code of Criminal Procedure, 1973. He bolstered his submission by placing reliance upon the judgments in the case of Vijay and Another v/s. State of Maharashtra and Another [(2017)13 Supreme Court Cases 317], Aroon Poorie v/s. Jayakumar Hiremath [(2017)7 Supreme Court Cases 767] and Prabhu Chawla v/s. State of Rajasthan and Another [(2016)16 Supreme Court Cases 30].

4. To consider whether the case of extra-ordinary situation or abuse of process of the Court as contemplated by the judgments referred above is made out, it is necessary to refer to the relevant part of the complaint. The relevant part of the complaint and

14-crwp3923-2022.doc

representation made by the complainant to the Home Secretary and the Principal Secretary, which according to the complainant constitute offences alleged read thus:

5.8 - "Hence all the accused acted in conspiracy with each other and violated the fundamental rights of the complainant and many other citizen." and 5.9 - "That the only intention in bringing such mandate was to give benefits to the vaccine manufacturing company and thereby enable the vaccine manufacturing company to make profit at the cost of citizen's health and wellbeing.", page 66 paragraphs 8 - "However, some state authorities and more particularly the Chief Secretary and some District Collectors in the State of Maharashtra are acting in utter disregard and defiance of the law and acting only for the welfare of the vaccine companies and thereby violating the fundamental and constitutional rights of the citizen." and 9 - "That, the State of Maharashtra through its Chief Secretary acted against the National Authority and brought one rule/SOP to restrict the entry to certain places only for vaccinated people.", page 67 paragraphs 11 - "Shri. Iqbal Chahal, Municipal Commissioner, Mumbai and Suresh Kakani, Additional Municipal Commissioner are also involved in bringing such unlawful mandates in violation of National Authorities directives."; 12 - "That, due to such unlawful rules many poor people were compelled to take vaccines and many people suffered a loss of life due to side effect of vaccines, a 23 years old young bog Shri. Hitesh Kadwe died within 3 hours of getting a Covishield Vaccine. His mother Smt. Kiran Yadav has filed a complaint against accused officials under Sections 302, 409, 420, 52, 120(B), 34, 109 of Indian Penal Code and Sections 51(b) & 55 of Disaster Management Act, 2005."; 13 - "That the AEFI Committee of the government has

14-crwp3923-2022.doc

admitted that the death of Dr. Snehal Lunawat was due to side effects of Covishield Vaccine.

Link:http://www.lokmat.com/nashik/death-female-doctor- after-vaccination-a587." and 14 - "That as per law it is the duty of all the officers to publish the side effects of the vaccines before giving it to any person. [Montgomery's Case [2015] UKSC 11, Airdale NHS Trust v/s. Bland (1993)1 ALL ER 821, Common Cause v/s. Union of India [(2018)5 SCC 1]."

and page 73 paragraphs 17 - "That all the domain experts including Shri. Sanjiv Rai of AIIMS, New Delhi made it clear that the person, who have antibodies developed due to Covid-19 infection are most safest person in the world. They can not get reinfection, they can not spread infection and they will not die due to infection. Giving vaccine to such people will cause serious harms to the immune system.";

18 - "Hence giving vaccines to such people is causing loss of thousand crores of public money. It is misappropriation of public property and money." and 19 - "It is clear that the concerned officials are more interested in giving undue profits to the vaccine manufacturing companies. This is an offence under Section 409 of IPC. It is also an offence under Prevention of Corruption Act. In Raman Lal v/s. State of Rajasthan 2000 SCC OnLine Raj 226, it is ruled as under :

D] Conspiracy - I.P.C. Sec. 120(B) - Apex Court made it clear that an inference of conspiracy has to be drawn on the basis of circumstantial evidence only because it becomes difficult to get direct evidence on such issue - The offence can only be proved largely from the inference drawn from acts or illegal omission committed by them in furtherance of a common design - Once such a conspiracy is proved, act of one conspirator becomes the act of the others - A co- conspirator who joins subsequently and commits overt acts in furtherance of the conspiracy must also be held liable - Proceeding against accused can not be quashed."

14-crwp3923-2022.doc

5. On perusal of the order of issuance of process, it appears that the learned Magistrate has issued process observing that the accused have violated Circular dated 22/08/2020 issued by Ajay Bhalla. It is stated that in spite of direction from the Home Secretary to all States and Administrators of all Union Territories that no restriction may be imposed on inter-state movement of the State or persons, the State of Maharashtra has imposed restrictions for movement of local train, canteens, shopping malls, gymnasium, Yoga center, indoor sports and other social activities and, therefore, prima-facie, the case for offence under Sections 166, 167, 304(A), 420 and 120(B) of Indian Penal Code, 1860 and under Sections 51(b), 54 and 55 of Disaster Management Act, 2005, is made out.

6. On prima-facie perusal of the averments made in the complaint, in my opinion, none of the essential ingredients of the offence alleged against the present petition are made out even if allegations are accepted on their face value. The order dated 11 th August, 2021 has been passed by the State Government in exercise of the powers under Section 2 of the Epidemic Diseases Act, 1897 and also the powers conferred under the provisions of the Disaster Management Act, 2005. This order has been passed by accused no. 1 on behalf of state government.

7. Section 166 of Indian Penal Code reads as under :-

"Public servant disobeying law, with intent to cause injury to any person. - Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury

14-crwp3923-2022.doc

to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."

8. In so far as the petitioner is concerned, prima facie, there is no allegation either in the complaint or in the material produced along with the complaint that the petitioner has knowingly disobeyed any direction of law or has conducted himself as a public servant causing injury to any person. In so far as the offences under Sections 304-A, 420 and 120-B of Indian Penal Code and 51(b), 54 and 55 of Disaster Management Act, 2005 are concerned, prima facie, in my opinion, the averments in the complaint accepted to be correct on the face of it, are not sufficient to constitute the offences as alleged against the petitioner. If that be the case, the present case would fall within the "extra-ordinary situation" and continuation proceedings would amount to abuse of process of court as contemplated by the judgment of Apex Court in the case of Prabhu Chawla (supra).

9. The learned Advocate for the complainant relied on the judgment in the case of Bindeshwari and Ors. v/s. State of U.P. and Ors. reported in MANU/UP/3127/2022 in support of his submission that in a proceeding under Section 482 of Code of Criminal Procedure, 1973, the defense of accused persons cannot be considered. There cannot be a dispute about the preposition of law that, but in the facts of the case, the averments in the complaint and the material available before the learned Magistrate on the date of issuance of process are not sufficient to constitute essential ingredients of offences alleged against petitioner therefore question of considering defense does not arise.

14-crwp3923-2022.doc

10. In so far as the judgment of Hon'ble Apex Court in the case of State of Maharashtra and Others v/s. Greatship (India) Limited reported in 2022 SCC OnLine SC 1262 is concerned, the Hon'ble Apex Court in the said case was considering the proceedings arising out of the fiscal statute and in the light of those provisions, the Hon'ble Apex Court held that the availability of statutory remedy cannot be easily bypassed. In the case of Daxaben (supra), the Hon'ble Apex Court was considering the exercise of powers by the High Court under Section 482 of Code of Criminal Procedure, 1973 to quash proceedings on the basis of settlement between the parties and in the context of said facts, it was held that the High Court cannot quash the prosecution initiated under Section 307 of Indian Penal Code, which falls under the category of heinous and serious offence and which is treated as the offence against the society. Both judgments referred above are not applicable in the facts of the case as the essential ingredients of offences alleged against petitioner are not fulfilled by taking allegations in complaint on their face value.

11. It is next submitted by the learned Advocate for the complainant by relying upon the judgment of the Hon'ble Apex Court in the case of Sunil Todi and Others v/s. State of Gujarat and Another reported in 2021 SCC OnLine SC 1174 that once the Magistrate exercises discretion, the High Court would not entertain petition to challenge the discretion exercised by the Magistrate. There can be no dispute about the principles of law laid down by the Hon'ble Apex Court but the power of High

14-crwp3923-2022.doc

Court and the scope of judicial review under Section 482 of Code of Criminal Procedure, 1973 having been settled by various judgments of the Hon'ble Apex Court, whenever the Court is of the opinion that the continuation of the proceedings would amount to abuse of process of the Court, the High Court is duty bound to protect a citizen. In the facts of the case as stated above, the allegations in complaint along with the averments in representation made to the Home Secretary, are not sufficient to constitute essential ingredients of the offence alleged against the petitioner therefore aforesaid judgment has no application to the case.

12. The learned Advocate for the complainant states that the machinery of Bombay Municipal Corporation is being misused by petitioner. Having considered the cause-title of the petition, it appears that the petition has been filed by the petitioner in his individual capacity.

13. The learned Advocate for the complainant submitted that the petitioner has suppressed material facts from this Court. He states that complainant be granted opportunity to file detailed reply to the petition.

14. In view of the prima-facie observations made above, in my opinion, arguable questions are raised. Hence, Rule.

15. There shall be interim relief in terms of prayer clause (b) qua petitioner only.

(AMIT BORKAR, J.)