Calcutta High Court (Appellete Side)

Jagadish Chandra & Ors vs The State Of West Bengal & Anr on 26 April, 2023

                 IN THE HIGH COURT AT CALCUTTA
                CRIMINAL REVISIONAL JURISDICTION
                          APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE


                             CRR 1968 of 2022

                       Jagadish Chandra & Ors
                                   Vs.
                      The State of West Bengal & Anr.


For the petitioner            :     Mr. Arunangshu Chakraborty
                                    Ms. Geniya Mukherjee
                                    Ms. Shrabani Banerjee
                                    Mr. Arijit Bera
                                    Ms. Jeba Rashid


For the State                 :     Mr. P.K. Dutta, Ld. APP
                                    Md. Kutubuddin
                                    Mr. Santanu Deb Roy

Heard on                      :     23.03.2023

Judgment on                   :     26.04.2023


Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the initiation and/or continuation

of the proceeding being G.R. case No. 672 of 2021, pending before the court of

Learned Additional Chief Judicial Magistrate, Raghunathpur, District Purulia,

present application has been preferred under section 482 of the code of

Criminal procedure praying for quashing the same. One Asha Mondal Roy on

23.09.2021 filed a written complain alleging that in the evening of that date

she went to market for shopping, where she found the present petitioners

claimed themselves as Dhannantari (expert doctor) were dissuading and

leading common people at Santuri market, stating that many people died due

to administering vaccine used to combat Corona virus Disease of 2019 (in

short COVID). They also requested people in that area not to take COVID

vaccine because the COVID patients can only recover by the treatment

prescribed by them. It has been further alleged in the complain that hearing

this, people of that locality got frightened about COVID vaccination. They

(Petitioners herein) also distributed some leaflets in order to misguide the

people and their only object was to earn by illegal means, propagating their

fake medical treatment. With the help of such false propagation, they have

misguided people, which may create tension in the locality.

2. On the basis of the said written complain police initiated the proceeding

against the present petitioners under sections

188/153/417/419/505/506/120B/34 of the Indian Penal Code (in shout IPC)

read with 51 (B) and 54 of the National Disaster Management Act, 2005 (in

shout Act of 2005). After completion of investigation police submitted charge-

sheet under the aforesaid sections against the petitioners herein.

3. Mr. Arunangshu Chakraborty learned counsel appearing on behalf of the

petitioners submits that even assuming not admitting that the petitioners

asked the people not to take COVID vaccine, then how the same can be

treated as cheating or impersonation or conspiracy, specially when freedom of

expression is guaranted under article 19 of the Constitution of India. He

further submits that the leaflet attached with the FIR clearly shows that it

referred two qualified doctors and nutritionists for free consultation and it is

not understandable how an attempt to creat awareness about side effects of

COVID vaccination and/or to give advice to consult qualified doctors and

nutritionists prior to go for Vaccination, can be treated as an offence under the

IPC or under the Act of 2005. He further submits that unfortunately the

Magistrate had taken cognizance upon charge-sheet, though no case has been

made out under any of the provisions of the said statutes. The learned

magistrate without caring to apply his mind to the allegations, as well as so

called material evidence collected in support of the charge-sheet, which

comprises of a hand bill, one white colour maruti van (ambulance) and one

permission copy of Searite Hospital and welfare society Bakhrahat, south 24

Parganas, had taken Cognizance of the offence. Taking of Cognizance on the

basis of aforesaid documents, which were seized by police in support of

prosecution case, only indicates non-application of mind by learned

magistrate. In fact out of two leaflets one leaflet only states how one can get

himself cured without medicine from COVID by following certain procedure

and taking sufficient food. Invitation was also made through the leaflet that

one may take advice free of cost and details of which was referred through

website link.

4. Mr. Chakraborty further submits that Government of India filed an

affidavit in Supreme Court in connection with writ petition civil no. 580 of

2021 wherein the health department, Government of India submitted that

administering of COVID Vaccine and using of mask merely advisory and not

mandatory. The other leaflet which has been distributed pertains to the

untimely death of two young ladies who died due to side effect of COVID

vaccination. He further submits that said death news has been circulated

through various news channel. Accordingly it is clear that if the allegations

contained in the FIR are taken even at their face value and accepted in their

entirety, it does not prima facie constitute any offence against the present

petitioners. He further submits Article 19 of the constitution of India guranted

freedom of speech and expression subject to reasonable restrictions contained

in Article 19(2) to (6) and accordingly expressing opinion if any, against the

COVID vaccination or about wearing mask is not an offence under any of the

provisions of IPC or under Act, of 2005.

5. Accordingly Mr. Chakraborty submits that cognizance taken by the

Magistrate is clear abuse of the process of the court. There is no allegation that

the petitioners who are members of a "Movement" having its own website, have

cheated any person by giving advise not to take vaccine. He also submits that

by no stretch of imagination, expressing opinion and asking to take advice for

covid treatment free of cost can be treated as an offence. Police has made a

false submission before the court that the petitioners demanded themselves

that they are doctors having capacity to cure COVID without any medicine but

the contents of leaflet, relied in support of the prosecution case, makes it clear

that in the leaflet name of the doctors given with their address with whom

consultation can be made free of cost. Mr. Chakraborty strenuously argued

that the materials collected in support of the allegation do not disclose any

cognizable offence which can justify a trial before the learned Magistrate. He

further submits that said criminal proceeding is manifestly accompanied with

malafide and the allegations made in the First Information Report (FIR) are so

absurd and inherently improbable on the basis of which no prudent man can

ever reach a just conclusion that there exists sufficient ground for proceeding

against the accused. In fact the petitioners merely expressed their opinion

regarding the side effect of COVID vaccination and have only adviced local

people to take advice from the registered doctors and nutritionists free of cost

whose names and address are given for consultation in the leaflet. In this

context he further submits that every citizen of India has right to express his

opinion against using any medicine which has not been accepted till date by

the World Health Organization as a sure shot remedy and when it is still under

clinical trial. He further submits Covishield vaccination has been banned in

many European Countries for harmful side effects. Moreover, no material has

been collected by the police that due to opinion allegedly expressed by the

petitioners any person has been cheated nor there is any material to show that

the petitioners introduced themselves as doctor for their personal gain.

Accordingly the petitioners have prayed for quashing the aforesaid proceeding.

6. Mr. Santanu Deb Roy learned Counsel appearing on behalf of the State

produced the case diary and submits that materials available in the case diary

does not justify continuation of further proceeding and materials collected

during investigation can hardly result in a conviction against the accused

persons.

7. I have gone through the FIR along with leaflets attached with the FIR.

Though in the FIR, it has been stated that the petitioners were propagating

that many people died due to COVID Vaccination and a COVID patient can

recover from illness only by the medicatioin prescribed by them but the

attached leaflet which is written in Bengali goes to show that in the first leaflet

they have only stated that two young ladies died due to side effect of the

COVID vaccination and accordingly the petitioners under the banner of

"Awaken India Movement" asked the people to get following detailed

information before one should go for COVID Vaccination

(i) About necessity of COVID vaccination

(ii) Whether such vaccination has passed clinical tests for injecting in

human body

(iii) How far such vaccination is safe for human body

(iv) What are the present and future side effects of such vaccination

(v) How many people died and how many people suffered damage due to

such vaccination.

In the second and third pages of the leaflet they have only stated about

certain steps and concluded that neither the lockdown nor the social

distancing can keep someone safe from COVID but it's the immunity power of

a human being which can protect people from COVID. At the end, for free

medical advice name and address of consultant doctors have also been given.

8. On perusal of the case diary it appears that during investigation police

has recorded statements of some persons under section 161 of the Cr.P.C. and

had seized said leaflet and one ambulance in support of prosecution case. On

perusal of the statements recorded by the police under section 161 of the

Cr.P.C, it appears that the witnesses have tried to demonstrate that the

petitioners attemped to create panic among the common people by distributing

leaflet and propagating through leaflet about their own method of combating

the disease in total disregard to the treatment prescribed by Government, but

no evidence or document has been placed before the court, as to how and

upon whom it created panic or who has affected by such panic or how it had

frightened the common people.

9. In fact in the supplementary affidavit filed by the petitioner, the

petitioner has referred an affidavit dated 13.01.2022 filed on behalf of the

Union of India before Supreme Court of India in connection with writ petition

(Civil No. 580/2021) and paragraph 13 and 14 of the said affidavit runs as

follows:

"Consent of persons with disabilities" It is humbly submitted that the directions and guidelines released by Government of India and Ministry of Health and Family Welfare, do not envisage any forcible vaccination without obtaining consent of the concerned individual. It is further humbly submitted that vaccination for COVID-19 is of larger public interest in view of the ongoing pandemic situation. It is duly advised, advertised and communicated through various print and social media platforms that all citizens should get vaccinated and systems and processes have been designed to facilitate the same. However, no person can be forced to be vaccinated against their wishes.

Exemption from vaccination certificates for persons with disabilities: it is most respectfully submitted that the Government of India has not issued any SOPs which make carrying of vaccination certificate mandatory for any purpose."

10. Furthermore in the supplementary affidavit dated 30 th August, 2022 the

petitioner has also brought to the notice of the court the Casualty Assessment

result of 254 reported serious adverse events following immunization cases

following COVID-19 vaccination, dated 17 th May, 2022 which states that 78

out of 254 cases were found to have a consistent casual association to

vaccination and out of 78 cases 31 cases were vaccine product-related reaction

including two deaths and 47 cases were immunization anxiety related reaction.

122 cases have an inconsistent casual association to immunization (co-

incidental-not linked to vaccination) including 83 death cases. 33 cases were

in the indeterminate category including one death case. Said casual

assessment result concludes that the overall benefits of vaccination are

overwhelmingly greater than the small risk of harm. However, as a measure of

utmost precaution all emerging signals of harm are being constantly tracked

and reviewed periodically.

11. In this context the observation made in paragraph 15 by the Apex

Court in suo-moto writ petition (civil no. 3 of 2021) can be referred,

"The supreme court of United States, speaking in the wake of the present COVID-19 pandemic in various instances, has overruled policies by observing, inter alia, that "Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the constitution cannot be put away and forgotten" and "a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights".

12. I have considered the materials in the record as well as is the case diary

wherefrom it appears that the petitioners were booked and charge-sheet

submitted under sections 188/153/417/419/505/506/120B/34 of the IPC

and sections 51(B)/54 of the Act of 2005. In this context it can be said that

Section 188 of IPC provides punishment for any person for disobedience of any

order promulgated by a public servant lawfully empowered to promulgate such

order. Here informant in the present case admittedly not a public servant and

as such filing of the charge-sheet and/or taking cognizance in the present

case under said section is barred under section 195(1) (a) (i) of the Cr.P.C

because under the said section, there is clear cut bar for taking cognizance of

the offence punishable under section 172-188 (both inclusive) of IPC except

on the complaint in writing of the public servant concerned or some other

public servant to whom he is administratively subordinate. Provisions of

section 195 Cr.P.C. are mandatory and no court has jurisdiction to take

cognizance of any of the offences mentioned therein unless there is a

complaint in writing as is required under that section. (Reliance has been

placed upon para 5 of M.S. Ahlawat Vs. State of Haryana reported in

(2000) (1) SCC 278). In view of absolute bar against the courts for taking

cognizance of the offence punishable under section 188 except in the manner

provided by section 195 of the Cr.P.C., cognizance is barred by law and the bar

under section 195 (1) of Cr.P.C. clearly applicable in the instant matter and

learned Magistrate is not at all empowered to take cognizance under that

section.

13. The petitioners are also booked under section 153 of the IPC and

needless to say that section 153 of IPC deals with the provocation with intent

to cause riot. By no stretch of imagination allegations leveled in the FIR and

materials collected in the case diary suggest for a moment that any allegation

of provocating riot has been leveled against the petitioners herein and as such

said section does not have any application in the present context. Similarly

section 505 of IPC can be triggered to a person whoever makes publishes or

circulate any statements or rumor or report with intent to cause or which is

likely to cause fear or alarm to the public or to any section of the public. In an

offence under section 505, mens rea is the essential ingredient of the offence

and the prosecution is required to show that with intent to cause which he

knew to be likely to cause fear or alarm to the public, offender induced any

person to commit an offence against the state or public tranquility. No such

allegation has been leveled against the accused persons/petitioners. On the

contrary the contents of the leaflet allegedly distributed under the banner of a

movement, goes to show that they tried to aware people according to their own

philosophy and way of thinking/perception and no mens rea is apparently

reflected to the materials available in the record. Section 506 deals with

punishment for criminal intimidation but in the present context there is no

allegation that the accused persons threatened anyone with injury to any one's

person reputation or property or they have done anything with intent to cause

alarm to anyone to perform any act which he was not legally bound to do.

Similarly though prosecution have alleged commission of offences under

section 417 and 419 of the IPC against the petitioners which deals with the

punishment for cheating by personation but there is nothing to show that

under the definition of cheating as stated in section 415 of the code, the

petitioners have deceived any person fraudulently or dishonestly by making

false or misleading representation induced any person including the person

who has lodged the complain to deliver any property to any person nor there is

any material to show that they have pretended themselves to be a doctor or

has represented themselves as doctor so that the provisions relating to

cheating can attract in the present case. It is now well settled that absence of

culpable intention at the time of making promise being absent no offence of

cheating can be said to have been made out. On the contrary contents of

leaflet clearly refers to the names of doctors and others with whom they are

suggesting for making free consultation.

14. Though the accused persons are also booked under the provision of

section 51(B) and section 54 of the Act of 2005 but on perusal of section 60 of

that Act it appears that no court shall take cognizance of offence under the

said Act except on a complaint made by either the National authority or State

authority or the central Government or the State Government or the district

authority or any other authority or officer authorized in this behalf by that

authority or Government as the case may be or by any person who has given

notice of not less than 30 days in the manner prescribed of the alleged offence

and his intention to make a complaint before any of the above authority.

From the facts and circumstances of the case, it is also clear that the present

proceeding is again barred under section 60 of the Act of 2005.

15. When no offence is made out and the allegations do not disclose any

cognizable offence, the question of application of section 120(B) or 34 of the

IPC does not arise in the present context.

16. In this context it would not be out of context to refer observation of Apex

Court in a similar type of occurrence being Writ Petition Civil No. 1220 of 2021

(Rachana Gangu & another Vs. Union of India & others) where the submission

before the Court was that after vaccination, two daughters of the petitioners

aged 18 and 20 years suffered from severe Adverse Effects Following

Immunization (AEFI) and died untimely. The petitioners had made

representations to the authorities concerned which had not been adequately

replied. The Apex Court in the said judgment was pleased to observe as

follows:-

" Though ordinarily we would have considered relegating the petitioners to the appropriate regular remedies because the matter might involve determination of certain basic questions of fact so as to bring it within the four-corners of a case of medical negligence but having regard to the post- mortem report filed with the additional documents, the submissions that the Government has not represented to the petitioners' representation, and the nature of reliefs claimed, it appears appropriate to call upon the respondents to reply."

17. In view of aforesaid discussion it is clear that the prosecution has

miserably failed to substantiate from materials available in the record that

even if allegations are taken in it's face value, it disclose essential ingredients

of the offences under which the petitioners are booked and charge sheeted.

The allegations are patently absurd and inherently improbable so that a

prudent person can ever reach a conclusion that there are sufficient grounds

for proceeding. In the present case the magistrate's exercise in taking

cognizance on charge sheet is capricious and arbitrary having based on no

evidence and /or on the basis of materials which are barred by law in taking

cognizance and as such it suffers from fundamental legal defects. On perusal

of FIR, the final report and all other documents accompanied it, I am satisfied

that no case is made out against any of the petitioners and it cannot be