Delhi High Court
Ganga Ram Hospital vs State on 22 June, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved On: 16th June, 2020
Pronounced on: 22nd June, 2020
+ CRL.M.A. No. 7661/2020 in W.P. (CRL.) 921/2020
GANGA RAM HOSPITAL ... Petitioner
Through: Mr. R. S. Suri and Mr.
Siddharth Luthra, Sr. Advs with
Mr. Rohit K Aggarwal and Ms.
Gunjan Sinha Jain, Advs. along
with Dr. (Brig.) S. Katosh
(Medical Superintendent)
Versus
STATE ... Respondent
Through: Mr. Rahul Mehra, Sr. Standing
Counsel (Crl.) with Mr. Rajesh
Mahajan, ASC (Crl.) and Mr.
Chaitanya Gosain, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
22.06.2020
Crl. M. A. 7661/2020 (for stay)
1. By the present application, the petitioner-applicant seeks
interim stay of all proceedings consequent on FIR No 0133, dated 5 th
June, 2020, registered at PS Rajinder Nagar against the applicant. The
W.P. (CRL.) 921/2020 Page 1 of 53
FIR alleges commission of offence, by the applicant, under Section
188 of the Indian Penal Code, 1860 (IPC). The complainant is "Amit
Kumar Pamasi (C/O) Dy Secretary Health", and the applicant is the
accused. The FIR (to the extent it is relevant) reads thus:
"Sub: Request for filing FIR under Section 188 IPC. Sir This
has reference to this department order No F.
2/08/2020/S.I/118 dated 30.04.2020 of order no. F.
52/DGHS/PH-IV/COVID-19/2020 prsecyhfw/6922-7022
dated 06.05.2020 of H & FW Department regarding
guidelines for tracking and monitoring of every COVID-19
suspected cases tested in various accredited labs across Delhi
wherein it was mandatory for the labs to collect sample only
through RT-PCR App. Further, CDMO cum Mission
Director, Central vide order dated 03.06.2020 has mentioned
that Sir Ganga Ram Hospital is still not using the RT-PCR
app even today i.e. 03.06.2020 which is a clear violation of
direction issued under the Epidemic Disease, COVID-19
regulation, 2020 issued under The epidemic Diseases Act,
1897. In view of violation of orders of this department, it is
requested to file an FIR under sections 188 IPC against
Medical Superintendent, Sir Ganga Ram Hospital and
informed accordingly to this department. This issues with
prior approval of competent authority."
History
2. In exercise of the powers conferred by Sections 2, 3 and 4 of
the Epidemic Diseases Act, 1897, the Hon'ble Lieutenant Governor of
Delhi issued Notification, dated 12th March, 2020, notifying the Delhi
Epidemic Diseases, COVID-19 Regulations, 2020 (hereinafter
referred to as "the 2020 COVID Regulations"). The directives,
contained in the said Regulations, are to be found in Regulations 4 to
17 thereof, which read thus:
W.P. (CRL.) 921/2020 Page 2 of 53
"4. All Hospitals (Government & Private) should have Flu
corners for screening , of suspected cases COVID-19 (Corona
Virus Disease 2019).
*****
17. With the concurrence of Health & Family Welfare
Department of Govt of NCT of Delhi, District: Disaster
Management Committee headed by District Magistrate IS
authorized for planning strategy regarding containment
measures for COVID-19 in their respective districts. The
District Magistrate may co opt more officers from different
departments for District Disaster Management Committee for
this activity under these regulations."
3. Prior to the issuance of the Orders dated 30 th April, 2020 and 6th
May, 2020, by the DGHS, GNCTD - of which the impugned FIR
alleges disobedience - guidelines, for COVID-19 testing were being
issued, from time to time, by the ICMR. The petitioner has placed, on
record, the Guidelines issued, by the ICMR, on 17 th March, 2020, 20th
March, 2020, 9th April, 2020 and 18th May, 2020. A reading thereof
reveals that it was only in the Guidelines, dated 18th May, 2020, that a
specific requirement was incorporated, to the effect that all testing of
COVID-19 suspected cases, whether symptomatic or symptomatic,
were to be conducted "by real-time RT-PCR test only".
4. Prior thereto, the petitioner asserts that a Specimen Referral
Form (SRF) had been issued by the ICMR, which was required to be
filled in, by the concerned labs, and transmitted, for communication,
to the local/District/state health authorities. The said SRF, at a plain
glance, is exhaustive, and contains all details, regarding the past
history of the person being tested, his, or her, exposure history,
clinical symptoms and signs, underlying medical conditions, and
W.P. (CRL.) 921/2020 Page 3 of 53
hospital treatment and investigation, if any. This form was also
modified, from time to time, incorporating further details, such as the
details of the referring doctor, "patient category", and the like.
5. On 20th April, 2020, the Health and Family Welfare
Department, GNCTD issued Order No F.51/DGHS/PH-IV/COVID-
19/2020/M/prsecyhfw/5259-5303, informing that the GNCTD had
created a COVID App, in which all Government/private COVID
testing labs and COVID hospitals were required to fill the requisite
data, to ensure proper follow-up of COVID-19 cases. The Order
required all concerned government/private hospitals to get the
requisite data filled on the COVID App immediately on regular basis
to supplement efforts for checking the spread of COVID-19, and also
directed all government/private labs to update the COVID App on
regular and immediate basis, after submission of each and every
sample for testing, as per the SRF.
6. On 30th April, 2020, Order No F. 2 / 08 / 2020 / S.1 / 118 was
issued, by the Chief Secretary, Delhi, in his capacity as Chairperson,
State Executive Committee, GNCTD. The Order expressed concern,
regarding the pendency of test samples, sent by districts in hospitals,
to various labs, for COVID-19 testing, multiplicity in reports,
resulting in difficulties and reconciliation of the data, and assessment
of the number of people getting infected with the COVID-19 virus.
This, the Order recited, was hampering effective management of the
COVID-19 pandemic by the GNCTD. Resultantly, the Order issued
the following directions:
W.P. (CRL.) 921/2020 Page 4 of 53
" a) Henceforth, the sampling and the testing data shall be at
the level of supervision of District magistrates concerned in
the enclosed format on a daily basis.
b) Further, the Heads of the Hospital/Institutions/testing-
facilities/labs concerned shall be responsible for furnishing
the requisite information to the District Magistrates of the
district in which such Hospital/Institutions/testing-
facilities/labs are located through the Chief District Medical
Officer (CDMO) concerned.
c) Chief District Medical Officer (CDMO) of every district
shall be responsible for submitting the said report to the
Department of Health and Family Welfare, Govt. of NCT of
Delhi on daily basis and updating the Test Report Format of
the Delhi Disaster Management Authority (already shared
with the Districts on April 29, 2020) by 6 PM every day.
d) District Magistrates shall ensure that correct and authentic
reports are timely submitted/updated every day without fail."
7. The RT-PCR App, which forms the fulcrum of controversy in
the present case, was developed by the ICMR, through the National
Informatics Centre (NIC), to enable collection centres to enter the
details of the SRF, while sending the swab samples to recognised labs
for RT-PCR tests. Consequent thereupon, Office Order No.
174/DGHS/PHW-IV/COVID-19/RTPCR App/2020/2625-69, dated
6th May, 2020 was issued by the DGHS, GNCTD, informing that the
said RT-PCR App could be downloaded from the Google store and
the IOS and further directing that all lab collection and test
requisitions for COVID-19 were to be processed only through the said
App. With effect from 8th May, 2020, manual/physical SRFs, at
collection centres, were required to be avoided. The said Office Order
merits reproduction, in extenso, thus:
W.P. (CRL.) 921/2020 Page 5 of 53
" GOVT. OF NCT OF DELHI
DIRECTORATE GENERAL OF HEALTH SERVICES
PUBLIC HEALTH WING.IV
3rd Floor, DGD Building School Block, Shakarpur, Delhi-
110092
Ph: 011-22482016, Email: [email protected]
F. No. 174/DGHS/PHW-IV/COVID-19/RTPCR App/2020/
2625-69 dated : 06.05.2020
Office Order
To streamline the data flow of tested persons for COVID-19
an app has been developed by ICMR through NIC to enable
collection centres to enter the details of Sample Reference
Form (SRF), while sending the swab samples to ICMR
recognized labs for RT-PCR tests.
The Government of India has launched this RT-PCR app
which is available for download in google store and IOS. All
lab collection and test requisition for COVID-19 are to be
processed through this app only while collecting the swab
sample for the test. The manual/physical sample Reference
Form (SRF) at the collection centres are to be avoided; thus
making the app mandatory w.e.f. 08.05.2020 onwards.
The ICMR accredited labs for COVlD-19 testing will also
follow the same and will further process only the RT-PCR
App received samples and may not accept the samples with
the manual SRF from 08.05.2020 onwards, This will reduce
the data entry at the labs and speed up results declaration. The
laboratories are also directed to ensure that the tests results
are reported within 24-48 hours in compliance of the WPC
3031/2020(Rakesh Malhotra Vs GNCTD & others).
The data entry initiated at the time of collection of swab for
testing will enable data flow of suspect cases into the system
for further action at the district Level as per the flow chart
attached with this office order (Enclosure 1 ).
All collection centres must ensure that in the case of
repeat and subsequent samples, the state unique ID
communicated by IDSP should be mentioned on the SRF,
W.P. (CRL.) 921/2020 Page 6 of 53
so that traceability of the sample testing of earlier positive
cases of COVID-19 is ensured.
To get the above app, districts are authorized to enter the
details of collection centres both public and private including
the district collection teams from the containment zones.
Once the details of these collection centres are entered in the
portal the credential of the app will be sent to the registered
phone numbers only.
The correction units are to be authorized by the DCs through
their NIC login.
Once we switch to ICMR portal for the lab reports then
all other efforts of testing without the RT-PCR lab will go
in vain.
Further, it is also informed that the lab reports received
without the address and contact details of the patients will not
be accepted by the state at any cost and such reports will be
reverted back to ICMR for de-recognization of the labs for
COVID-19 testing. Therefore, all the collection centres are
once again directed that the mobile number and the address of
the patient are mandatory fields to be incorporated in the
SRF, without which the exercise of collecting the sample is in
vain
These fields (addresses & contact numbers) are non-
negotiable as they are the foundation for surveillance and
contact tracing activities for the containment of COVID.I9
pandemic."
(Emphasis in original)
8. A reading of the above Office Order reveals that the details, to
be entered via the RT-PCR App, were the same as those contained in
the SRF of the ICMR, and that the RT-PCR App was aimed at
streamlining data flow of tested persons, reducing data entry at labs,
speeding up declaration of results and enabling data flow of suspected
cases into the system for further action at the district level. Prima
W.P. (CRL.) 921/2020 Page 7 of 53
facie, the contention, in para 7.10 of the petition, that the "RT-PCR
App is just an electronic (mobile) version of the physical Specimen
Referral Form (SRF)" merits acceptance. Indeed, Mr. Rahul Mehra,
learned Standing Counsel has not been able to demonstrate any
difference, between the details contained in the SRF of the ICMR, and
those required to be transmitted by the RT-PCR App.
9. On the same day, i.e. 6th May, 2020, Order No. 52/DGHS/PH-
IV/COVID-19/2020/prsecyhfw/6922-7022 was issued, by the Health
and Family Welfare Department, GNCTD, in exercise of the powers
conferred by the Delhi Epidemic Diseases, COVID-19 Regulations,
2020 (hereinafter referred to as "the 2020 COVID Regulations"),
which, in turn, were issued under the Epidemic Diseases Act, 1897
(hereinafter referred to as "the Epidemic Diseases Act"). The Order
directed all COVID testing labs to adhere to the following guidelines,
for effective tracking and monitoring of every COVID-19 suspected
case getting tested in various accredited labs across Delhi:
"GOVERNMENT OF NATIONAL CAPITAL TERRITORY
OF DELHI
HEALTH & FAMILY WELFARE DEPARTMENT 9rn
LEVEL, A-WING, DELHI SECRETARIAT, IP ESTATE,
NEW DELHI - 110 002
Ph: 011-23392017, Fax 011-23392464, email:
[email protected]
No. 52/DGHS/PH-IV/COVID-
19/2020/prsecyhfw/6922-7022 Date: 06/05/2020
ORDER
In exercise of the powers conferred by the (Delhi Epidemic
Diseases, COVID-19. regulations 2020 issued under the
Epidemic Diseases Act, 1897, all COVID testing labs are
directed to follow the below mentioned guidelines for
effective testing and monitoring of every COVID 19
suspected case getting tested at various accredited labs across
Delhi:
1. Sample should only be collected by ICMR accredited
labs for COVID-l9 testing;
2. All the pending samples with labs, as on 6.5.2020 must
be processed within 24 hours, i.e. by 1pm of 7/5/2020.
3. From 7/5/2020, reports of all samples collected must
be given within 24 hours and not later than 48 hours, in any
case.
4. It is mandatory for all accredited labs to use RTPCR
App for sample collection and they must ensure that all
requisite details are duly filled in RTPCR app;
5. With effect from 8/5/2020, manual Sample Requisition
Form (SRF) should not be accepted RT-PCR app filled
samples only should be accepted;
6. The collection centres in Delhi shall fill the SRF in
RT-PCR app only, else their samples would not be accepted
by the labs.
7. NO labs shall collect samples more than 10% of its
capacity, as overcrowding of samples lead to inordinate
delays;
8. Labs must update total number of pending samples
everyday by 6.00 pm, without fail at
[email protected]
The above guidelines also include directions of Hon'ble High
Court, Delhi dated 04.05.2020 in WP (C) 3031/2020 and CM
No. 10549/2020 & 10550/2020. Non compliance of the orders
will be viewed seriously and action will be taken immediately
as per the provisions of the Delhi Epidemic Diseases,
COVID-19 regulations, 2020 and other Rules and regulations
in this regard. "
The Order also warned that non-compliance, with the above
directions, would invite action, against the defaulting lab, as per the
provisions of the 2020 COVID Regulations, and other Rules and
Regulations applicable in that regard.
10. This was followed by a Corrigendum, dated 7th May, 2020,
issued by the Nursing Home Cell of the Directorate General of Health
Services, GNCTD (DGHS) which, inter alia, reiterated that, from that
date onwards, no manual Sample Requisition Form (SRF) would be
accepted, and the concerned private lab would receive samples only
after confirming that the details had been entered on the RT-PCR app.
The instructions contained in the said Corrigendum were to be found
in a Note, appended towards the end thereof, which may be
reproduced thus:
"Note:
1. The samples collected at Delhi Government COVID-
19 designated hospitals/CHC/CIC/CTC and by O/o Chief
District Medical Officer shall be labelled and packed in
transport container provided by the Lab having requisite
temperature as per protocol.
2. The collection centres/teams in Delhi shall fill details
on RT-PCR app only.
3. Henceforth, no manual Sample Requisition From
(SRF) shall be accepted.
4. The runner of the designated private Lab shall receive
the sample(S) only after confirming that the details have been
filled on RT-PCR app. He shall give a receipt of the number
of samples being transported.
5. The designated private Labs shall send the report
within 24 hours, but not later than 48 hours in any case, on E-
mail ID: [email protected]
6. The bills along with copy of the Form ID(s) and report
of the test(s) shall be submitted by the private Labs to O/o
CDMO-cum-Mission Director / Director / Medical Director /
Medical Superintendent of the hospital from where the
requisition for COVID-19 test has been made for payment
purposes in a weekly basis.
7. In case the designated private lab of Districts at S.Nos.
4 to 11 does not receive the sample or has informed that it has
already reached its maximum capacity, the sample may be
sent to Dr. Lal Path labs after consultation with the Nodal
Person of the said Lab regarding available capacity.
8. All samples collected by Private Labs from a public
facility shall ensure that the reports are submitted timely i.e.
within 24 hours, but not later than 48 hours, failing which the
payment for sample(s) tested will not be made.
9. No Labs shall collect sample more than 10% of its
declared capacity, as overcrowding of samples leads to
inordinate delays."
11. On 2nd June, 2020, a Show Cause Notice was issued, to the
petitioner, by the Health and Family Welfare Department, GNCTD.
The allegation, in the said Show Cause Notice, is not of particular
relevance to the present case, dealing, as it did, with following of the
ICMR Testing protocol for testing of asymptomatic patients.
However, it was acknowledged, in the said Show Cause Notice, that
the petitioner had been submitting daily reports, with regard to testing
and results of samples, tested for COVID-19 infection, to the
respondent.
12. On 3rd June, 2020, Order No F.50 (1) /PART FILE-III / 2020 /
IDSP / CDMO / CENTRAL: 181 was issued, by the DGHS, observing
that, in apparent disobedience of the aforenoted Office Order, dated 6 th
May, 2020, issued by the DGHS, proscribing use of manual/physical
SRFs at sample collection centres with effect from 8th May, 2020, and
usage, instead, of the RT-PCR App, the petitioner was still not using
the said App. In view thereof, the petitioner was directed to explain,
within two days, why it had not started using the RT-PCR App. The
petitioner was also directed to stop RT-PCR sampling of COVID-19
suspects/contact cases, with immediate effect.
13. On the very same day, i.e. 3rd June, 2020, the Health and Family
Welfare Department, GNCTD issued another Order No 52/DGHS/PH-
IV/COVID-19/2020/prsecyhfw/9985-10040, directing the petitioner-
Hospital, inter alia, to reserve 80% of its total bed strength for
COVID-19 cases, of which 51 beds were to be reserved for
Economically Weaker Section (EWS) category patients, who were to
be treated free. 20% of the beds, in the petitioner-Hospital, were
allowed to be reserved for treating non-COVID patients.
14. The petitioner has expressed chagrin, in the petition, at the fact
that, on the very same day, the Health and Family Welfare
Department of the GNCTD, directed the petitioner to reserve 80% of
its beds for treating COVID-19 patients and, practically in the same
breath, directed it to stop RT-PCR sampling of COVID-19
suspects/contact cases. There does appear to be some contradiction in
these orders; however, that is not, really, subject matter of controversy
before me in the present case.
15. On 4th June, 2020, the petitioner responded to the aforesaid
communications, dated 2nd June, 2020 and 3rd June, 2020, addressed,
to it, by the Health and Family Welfare Department, GNCTD.
Apropos the non-compliance, by it, with the requirement of using the
RT-PCR App, it was submitted, in para 9 of the said communication,
thus:
"Meanwhile vide DGHS F. No. 174/DGHS/PHW-
IV/COVID-19/RPTCT App/2020/2625-69 dated 06 May 20
RT PCR App was introduced which was required to be
adopted by all hospitals. The very next day the Nodal Officer
Sir Ganga Ram Hospital sought the User ID and the Password
for the RT PCR Application and also requested for a Data
Entry Operator from IDSP which was denied due to the
prevailing Lockdown situation the very reason why IDSP was
approached in the first place as this hospital too was affected
by the lockdown and band of movement across the borders of
Delhi as majority of our staff stay in Noida, Ghaziabad,
Gurugram and Faridabad. The undersigned, therefore,
approached the office of the Chief Minister for a Data Entry
Operator and was promised one from the Education
Department which also did not materialise. With concerted
efforts one data entry operator has been hired the details of
which are ready to be shared with CDMO who has been
contacted. Meanwhile in a unilateral decision vide CDMO
letter dated 03 June 20, RT-PCR sampling has been stopped
and Registration of Sir Ganga Ram Hospital for the RT-PCR
application denied, even when reporting was done within 24
hours of sampling, and no pending sufferers of 02 June
remained on 03 June."
16. On 4th June, 2020, the petitioner responded to the Show Cause
Notice, dated 2nd June, 2020 supra, in which it was averred that
personnel had been identified, by it, for registration for the RT-PCR
App, and permission had been sought, but had not been granted by the
GNCTD. On the next day, the petitioner addressed another
communication, to the IDHS, regretting its lapse in obtaining timely
registration for the RT-PCR App, which, it is submitted, was owing to
a communication gap and work pressure. The petitioner informed,
further, that it had identified a Data Entry Operator, for registration of
the RT-PCR App, as well as nine phlebotomists, whose details were
annexed. Once the Data Entry Operator was registered, the petitioner
undertook to enter all past entries in the RT-PCR App and to ensure
compliance, with the said requirement, in future.
17. On the very same day, i.e. 5th June, 2020, the impugned FIR
came to be registered, against the petitioner, at PS Rajinder Nagar, by
Amit Kumar Pamasi, from the office of the Deputy Secretary, Health,
GNCTD, alleging commission of offence, by the petitioner, under
Section 188 of the IPC. For ready reference, Section 188 of the IPC is
reproduced, thus:
"188. Disobedience to order duly promulgated by public
servant. -
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 disobedience causes or tends 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 6 months, or with fine which may
extend to one thousand rupees, or with both.
Explanation. - It is not necessary that the offender
should intend to produce harm, or contemplate his
disobedience as likely to produce harm. It is sufficient
that he knows of the order which he disobeys, and that
his disobedience produces, or is likely to produce,
harm."
18. By the present petition, the petitioner prays that the aforesaid
FIR, dated 5th June, 2020, be quashed. Prayer b), in the writ petition,
for issuance of an appropriate writ, quashing and setting aside the
Order, dated 3rd June, 2020 supra, whereby the petitioner has been
prohibited from conducting RT-PCR sampling for COVID-19
suspects/contact cases, has become infructuous, as the said order has
been withdrawn and the petitioner has been permitted to conduct
sampling.
19. Notice already stands issued in the writ petition. By the present
order, I am disposing of Crl.M.A. 7661/2020, whereby stay of
proceedings, consequent upon the impugned FIR, dated 5 th June,
2020, has been sought.
Rival submissions and Analysis
20. I have heard, at exhaustive length, Mr. R. S. Suri and Mr.
Sidharth Luthra, learned Senior Counsel for the petitioner, and Mr.
Rahul Mehra, learned Senior Standing Counsel (Criminal), for the
GNCTD/State.
21. Mr Suri and Mr Luthra, arguing for the petitioner, have,
essentially, predicated their case on three premises, viz.
(i) that Section 195, read with Section 2(d), of the Cr PC,
prohibited registration of an FIR in the case of commission of
an alleged offence under Section 188 of the IPC,
(ii) that the recitals in the FIR did not disclose the
commission of any cognizable offence, least of all under
Section 188, IPC, the requisite ingredients of the said offence
being absent, and
(iii) that, as the offence, if any, was trivial, Section 95 of the
IPC, too, operated to justify interdiction of the investigation.
22. Mr Rahul Mehra, per contra, stressed on the inadvisability of
High Courts interfering with the investigative process, consequent on
registration of an FIR, save and except in the rarest of cases. He also
characterized the reliance, by learned Senior Counsel for the
petitioner, on Section 195 of the Cr PC, as totally misguided, as
Section 195 came in for application only at the stage of taking of
cognizance by the competent criminal court, and not at the stage of
registration of an FIR. Finally, Mr Mehra submitted that, as public
health and life were involved, the offence could not be considered, by
the farthest stretch of imagination, as "trivial" and that, therefore,
Section 95 of the IPC had no application.
23. What is the scope of interference, by the High Court, with
investigation, consequent to registration of an FIR? Can any
interlocutory injunction, staying such investigation, be granted?
These, undoubtedly, are the pivotal issues, on the basis whereof the
prayer of the petitioner, for grant of ad interim stay, would be required
to be appreciated.
24. Imtiyaz Ahmed v. State of U.P.1 is an oft-quoted judgement,
on the issue of the power of the High Court, to stay investigation,
consequent to registration of an FIR. The Supreme Court was, in the
said case, seized with a challenge, to various interlocutory orders,
passed by the High Court of Allahabad, in a case, staying
investigation, consequent to registration of FIR, after which the matter
remained pending, in the High Court, for a long period of time. This
seriously impacted the investigative process, and compelled the
complainant, before the court below, to approach the Supreme Court.
After generally discussing, with statistics, the malady of criminal
cases remaining pending, in High Courts, for long periods of time
after grant of stay of investigation, the Supreme Court proceeded, in
para 55 of the report, to issue certain directions, to High Courts, "for
better maintenance of the rule of law and better administration of
justice". These directions, having been issued by the Supreme Court,
(2012) 2 SCC 688
are, naturally, binding on all High Courts. Para 55 of the report may
be reproduced, thus:
"Certain directions are given to the High Courts for better
maintenance of the rule of law and better administration of
justice:
While analysing the data in aggregated form, this
Court cannot overlook the most important factor in the
administration of justice. The authority of the High
Court to order stay of investigation pursuant to lodging
of FIR, or trial in deserving cases is unquestionable.
But this Court is of the view that the exercise of this
authority carries with it the responsibility to
expeditiously dispose of the case. The power to grant
stay of investigation and trial is a very extraordinary
power given to the High Courts and the same power is
to be exercised sparingly only to prevent an abuse of
the process and to promote the ends of justice. It is
therefore clear that:
(i) Such an extraordinary power has to be
exercised with due caution and circumspection.
(ii) Once such a power is exercised, the High
Court should not lose sight of the case where it
has exercised its extraordinary power of staying
investigation and trial.
(iii) The High Court should make it a point of
finally disposing of such proceedings as early as
possible but preferably within six months from
the date the stay order is issued."
25. Imtiyaz Ahmed1 was followed, much more recently, by a bench
of three Hon'ble Judges of the Supreme Court, in Asian Resurfacing
of Road Agency Pvt Ltd v. C.B.I.2 This decision, again, addressed,
specifically, the issue of grant of stay, by the High Court, in criminal
(2018) 16 SCC 299
cases, and followed, with approval, the principles enunciated in
Imtiyaz Ahmed1. The following observations, contained in paras 30
to 32, and 36, of the report, are relevant:
"30. It is well accepted that delay in a criminal trial,
particularly in the PC Act cases, has deleterious effect on the
administration of justice in which the society has a vital
interest. Delay in trials affects the faith in Rule of Law and
efficacy of the legal system. It affects social welfare and
development. Even in civil or tax cases it has been laid down
that power to grant stay has to be exercised with restraint.
Mere prima facie case is not enough. Party seeking stay must
be put to terms and stay should not be an incentive to delay.
The order granting stay must show application of mind. The
power to grant stay is coupled with accountability. [Siliguri
Municipality v. Amalendu Das, (1984) 2 SCC 436, para
4; CCE v. Dunlop India Ltd., (1985) 1 SCC 260, para; State
(UT of Pondicherry) v. P.V. Suresh, (1994) 2 SCC 70, para
15 and State of W.B. v. Calcutta Hardware Stores, (1986) 2
SCC 203, para 5]
31. Wherever stay is granted, a speaking order must be
passed showing that the case was of exceptional nature and
delay on account of stay will not prejudice the interest of
speedy trial in a corruption case. Once stay is granted,
proceedings should not be adjourned, and concluded within
two-three months.
32. The wisdom of the legislature and the object of final
and expeditious disposal of a criminal proceeding cannot be
ignored. In exercise of its power the High Court is to balance
the freedom of an individual on the one hand and security of
the society on the other. Only in case of patent illegality or
want of jurisdiction the High Court may exercise its
jurisdiction. The acknowledged experience is that where
challenge to an order framing charge is entertained, the
matter remains pending for long time which defeats the
interest of justice.
*****
36. In view of the above, situation of proceedings
remaining pending for long on account of stay needs to be
remedied. Remedy is required not only for corruption cases
but for all civil and criminal cases where on account of stay,
civil and criminal proceedings are held up. At times,
proceedings are adjourned sine die on account of stay. Even
after stay is vacated, intimation is not received and
proceedings are not taken up. In an attempt to remedy this
situation, we consider it appropriate to direct that in all
pending cases where stay against proceedings of a civil or
criminal trial is operating, the same will come to an end on
expiry of six months from today unless in an exceptional case
by a speaking order such stay is extended. In cases where
stay is granted in future, the same will end on expiry of six
months from the date of such order unless similar extension is
granted by a speaking order. The speaking order must show
that the case was of such exceptional nature that continuing
the stay was more important than having the trial finalised.
The trial court where order of stay of civil or criminal
proceedings is produced, may fix a date not beyond six
months of the order of stay so that on expiry of period of stay,
proceedings can commence unless order of extension of stay
is produced."
(Emphasis supplied)
26. The afore-extracted passages reveals that the Supreme Court
was concerned, principally - and, no doubt, justifiably - by the
protraction of criminal proceedings, after grant of stay, resulting in
frustrating of the cause of criminal justice. In the light of the
decisions in Imtiyaz Ahmed1 and Asian Resurfacing of Road Agency
Pvt. Ltd.2, while the authority, of the High Court, to stay criminal
proceedings, in an appropriate case, cannot be gainsaid, such authority
is to be exercised only on rare occasions, and, while so exercising
such authority, the High Court is to remain alive to the necessity of
expeditious conclusion of criminal proceedings, and to take steps
towards that end.
27. The governing principles, for grant of injunctions, nevertheless,
remain the same, whether the lis be civil or criminal, i.e. the existence
of a prima facie case, the balance of convenience being in favour of
grant of injunction, and the likelihood of irreparable loss, or prejudice,
resulting, were injunction not to be granted 3. To these, who the
decisions in Ramniklal N. Bhutta v. State of Maharashtra 4 and
Raunaq International Ltd v. I.V.R. Construction Ltd 5 have added a
fourth, namely public interest. Indeed, this fourth consideration may
even, to an extent, predominate over the earlier three, in view of the
principle, fossilised in jurisprudence worldwide, that public interest
always outweighs private interest.
28. Where, however, the case is at the stage of investigation, the
jurisdiction of the High Court - or of any court - to interdict the
investigation at any interlocutory stage, remains heavily
circumscribed, and the decisions, cited by Mr. Rahul Mehra, in this
context, are undoubtedly relevant. I proceed, therefore, to examine
the said decisions.
29. Sanapareddy Maheedhar Seshagiri v State of A.P. 6 - on which,
inter alia, Mr. Rahul Mehra relied - referred, exhaustively, to the
State of Mizoram v. Pooja Fortune Pvt Ltd, 2019 SCC OnLine 1741 being the most recent decision on
the point
(1997) 1 SCC 134
(1999) 1 SCC 492
(2007) 13 SCC 165
earlier pronouncements in R. P. Kapur v State of Punjab 7, State of
Haryana v. Bhajan Lal8 and Zandu Pharmaceutical Works Ltd v.
Mohd Sharaful Haque9 and, on the basis thereof, culled out its own
definitive principles. Paras 26 to 31 of the report merit reproduction,
in extenso, thus:
"26. At this stage, we may also notice the parameters
laid down by this Court for exercise of power by the High
Court under Section 482 Cr PC to give effect to any order
made under Cr PC or to prevent abuse of the process of any
court or otherwise to secure the ends of justice. In R.P.
Kapur v. State of Punjab, AIR 1960 SC 866, this Court
considered the question whether in exercise of its power
under Section 561-A of the Code of Criminal Procedure,
1898 (Section 482 Cr PC is pari materia with Section 561-
A of the 1898 Code), the High Court could quash criminal
case registered against the appellant who along with his
mother-in-law was accused of committing offences under
Sections 420, 109, 114 and 120-B of the Penal Code. The
appellant unsuccessfully filed a petition in the Punjab High
Court for quashing the investigation of the first information
report (FIR) registered against him and then filed appeal
before this Court. While confirming the High Court's order
this Court laid down the following proposition: (AIR p.
866)
"The inherent power of the High Court under Section
561-A Cr PC cannot be exercised in regard to matters
specifically covered by the other provisions of the
Code. The inherent jurisdiction of the High Court can
be exercised to quash proceedings in a proper case
either to prevent the abuse of the process of any court
or otherwise to secure the ends of justice. Ordinarily
criminal proceedings instituted against an accused
person must be tried under the provisions of the Code,
and the High Court would be reluctant to interfere
with the said proceedings at an interlocutory stage. It
AIR 1960 SC 866
1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426
(2005) 1 SCC 122 : 2005 SCC (Cri) 283
is not possible, desirable or expedient to lay down any
inflexible rule which would govern the exercise of this
inherent jurisdiction."
27. This Court then carved out some exceptions to the
abovestated rule. These are: (R.P. Kapur case [AIR 1960
SC 866] , AIR p. 866)
"(i) Where it manifestly appears that there is a legal
bar against the institution or continuance of the
criminal proceeding in respect of the offence alleged.
Absence of the requisite sanction may, for instance,
furnish cases under this category.
(ii) Where the allegations in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety, do not
constitute the offence alleged; in such cases no
question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the first
information report to decide whether the offence
alleged is disclosed or not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is
either no legal evidence adduced in support of the case
or the evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of cases it
is important to bear in mind the distinction between a
case where there is no legal evidence or where there is
evidence which is manifestly and clearly inconsistent
with the accusation made and cases where there is
legal evidence which on its appreciation may or may
not support the accusation in question. In exercising its
jurisdiction under Section 561-A the High Court would
not embark upon an enquiry as to whether the evidence
in question is reliable or not. That is the function of the
trial Magistrate, and ordinarily it would not be open to
any party to invoke the High Court's inherent
jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made
against the accused would not be sustained."
28. In State of Haryana v. Bhajan Lal [1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] this Court considered the
scope of the High Court's power under Section 482 Cr PC
and Article 226 of the Constitution to quash FIR registered
against the respondent, referred to several judicial
precedents including those of R.P. Kapur v. State of
Punjab [AIR 1960 SC 866], State of Bihar v. J.A.C.
Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272]
and State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC
561 : 1982 SCC (Cri) 283] and held that the High Court
should not embark upon an enquiry into the merits and
demerits of the allegations and quash the proceedings
without allowing the investigating agency to complete its
task. At the same time, the Court identified the following
cases in which FIR or complaint can be quashed: (Bhajan
Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] ,
SCC pp. 378-79, para 102)
"102.(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the Act concerned
(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
Act concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
29. The ratio of Bhajan Lal case [1992 Supp (1) SCC 335
: 1992 SCC (Cri) 426] has been consistently followed in the
subsequent judgments. In Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005
SCC (Cri) 283] this Court referred to a large number of
precedents on the subject and observed: (SCC pp. 129-30,
para 11)
"11. ... the powers possessed by the High Court under
Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision
in exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the
highest court of a State should normally refrain from
giving a prima facie decision in a case where the entire
facts are incomplete and hazy, more so when the
evidence has not been collected and produced before
the court and the issues involved, whether factual or
legal, are of magnitude and cannot be seen in their true
perspective without sufficient material. Of course, no
hard-and-fast rule can be laid down in regard to cases
in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage. It
would not be proper for the High Court to analyse the
case of the complainant in the light of all probabilities
in order to determine whether a conviction would be
sustainable and on such premise arrive at a conclusion
that the proceedings are to be quashed. It would be
erroneous to assess the material before it and conclude
that the complaint cannot be proceeded with. In a
proceeding instituted on complaint, exercise of the
inherent powers to quash the proceedings is called for
only in a case where the complaint does not disclose
any offence or is frivolous, vexatious or oppressive. If
the allegations set out in the complaint do not
constitute the offence of which cognizance has been
taken by the Magistrate, it is open to the High Court to
quash the same in exercise of the inherent powers
under Section 482 of the Code. It is not, however,
necessary that there should be meticulous analysis of
the case before the trial to find out whether the case
would end in conviction or acquittal. The complaint
has to be read as a whole. If it appears that on
consideration of the allegations in the light of the
statement made on oath of the complainant that the
ingredients of the offence or offences are disclosed and
there is no material to show that the complaint is mala
fide, frivolous or vexatious, in that event there would
be no justification for interference by the High Court.
When an information is lodged at the police station and
an offence is registered, then the mala fides of the
informant would be of secondary importance. It is the
material collected during the investigation and
evidence led in court which decides the fate of the
accused person. The allegations of mala fides against
the informant are of no consequence and cannot by
themselves be the basis for quashing the proceedings."
In the aforementioned judgment, this Court set aside the order
of the Patna High Court and quashed the summons issued by
the First Class Judicial Magistrate in Complaint Case No.
1613 (C) of 2002 on the ground that the same was barred by
limitation prescribed under Section 468(2) Cr PC.
30. In Ramesh Chandra Sinha case [(2003) 7 SCC 254 :
2003 SCC (Cri) 1613] this Court quashed the decision of the
Chief Judicial Magistrate, Patna to take cognizance of the
offence allegedly committed by the appellants by observing
that the same was barred by time and there were no valid
grounds to extend the period of limitation by invoking
Section 473 Cr PC.
31. A careful reading of the abovenoted judgments makes
it clear that the High Court should be extremely cautious and
slow to interfere with the investigation and/or trial of criminal
cases and should not stall the investigation and/or prosecution
except when it is convinced beyond any manner of doubt that
FIR does not disclose commission of any offence or that the
allegations contained in FIR do not constitute any cognizable
offence or that the prosecution is barred by law or the High
Court is convinced that it is necessary to interfere to prevent
abuse of the process of the Court. In dealing with such cases,
the High Court has to bear in mind that judicial intervention at
the threshold of the legal process initiated against a person
accused of committing offence is highly detrimental to the
larger public and societal interest. The people and the society
have a legitimate expectation that those committing offences
either against an individual or the society are expeditiously
brought to trial and, if found guilty, adequately punished.
Therefore, while deciding a petition filed for quashing FIR or
complaint or restraining the competent authority from
investigating the allegations contained in FIR or complaint or
for stalling the trial of the case, the High Court should be
extremely careful and circumspect. If the allegations
contained in FIR or complaint disclose commission of some
crime, then the High Court must keep its hands off and allow
the investigating agency to complete the investigation without
any fetter and also refrain from passing order which may
impede the trial. The High Court should not go into the merits
and demerits of the allegations simply because the petitioner
alleges malus animus against the author of FIR or the
complainant. The High Court must also refrain from making
imaginary journey in the realm of possible harassment which
may be caused to the petitioner on account of investigation of
FIR or complaint. Such a course will result in miscarriage of
justice and would encourage those accused of committing
crimes to repeat the same. However, if the High Court is
satisfied that the complaint does not disclose commission of
any offence or prosecution is barred by limitation or that the
proceedings of criminal case would result in failure of justice,
then it may exercise inherent power under Section 482 Cr
PC."
(Emphasis supplied)
30. State of A. P. v. Golconda Linga Swamy10 expressed much the
same sentiment, in the following passage (which was reproduced, and
followed, in State of A. P. v. Bajjoori Kanthaiah11):
"5. Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The
section does not confer any new powers on the High Court. It
only saves the inherent power which the Court possessed
before the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction may be
exercised, namely: (i) to give effect to an order under the
Code, (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction. No legislative enactment
dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart
from express provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by law.
That is the doctrine which finds expression in the section
which merely recognises and preserves inherent powers of the
High Courts. All courts, whether civil or criminal, possess in
the absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right
and to undo a wrong in course of administration of justice on
the principle quando lex aliquid alique concedit, conceditur et
id sine quo res ipsa esse non potest (when the law gives a
person anything, it gives him that without which it cannot
exist). While exercising powers under the section, the Court
does not function as a court of appeal or revision. Inherent
jurisdiction under the section though wide has to be exercised
sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the
section itself. It is to be exercised ex debito justitiae to do real
and substantial justice for the administration of which alone
(2004) 6 SCC 522
(2009) 1 SCC 114
courts exist. Authority of the court exists for advancement of
justice and if any attempt is made to abuse that authority so as
to produce injustice, the court has power to prevent such
abuse. It would be an abuse of the process of the court to
allow any action which would result in injustice and prevent
promotion of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that initiation or
continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends
of justice. When no offence is disclosed by the complaint, the
court may examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look into the
materials to assess what the complainant has alleged and
whether any offence is made out even if the allegations are
accepted in toto."
(Emphasis supplied)
Golconda Linga Swamy10 - and, consequently, Bajjoori
Kanthaiah11 - also went on to cite, with approval, R. P. Kapur 7
and Bhajan Lal8.
31. M. N. Ojha v. Alok Kumar Srivastav12, on which, too, Mr.
Rahul Mehra placed reliance, was a case in which the challenge was to
the order, of the learned Judicial Magistrate, summoning the accused
in an FIR. The Supreme Court held, on facts, that the FIR was a
mischievous attempt to harass and persecute the persons accused
therein (i.e. the appellants before the Supreme Court) and that, without
examining the facts, the learned Judicial Magistrate erred in
summoning the accused. That, therefore, was a case in which, in fact,
the Supreme Court quashed the proceedings. Mr. Mehra sought to
place reliance, on certain observations, contained in para 30 of the
(2009) 9 SCC 682
report, to the effect that interference, by the High Court, with criminal
proceedings, under Section 482 of the Cr PC, was permissible only
where a clear case, for such interference was made out, and that
frequent and uncalled for interference, at the preliminary stage of
investigation, could result in causing obstruction in progress of the
enquiry in a criminal case, which may not be in public interest. There
can be no cavil with these propositions. Interestingly, the Supreme
Court, in the said decision, relied on a passage from Pepsi Foods Ltd
v. Special Judicial Magistrate 13 , in which it was specifically held
that criminal law could not be set into motion as a matter of course.
32. Mr. Rahul Mehra also placed reliance on D.
Venkatasubramaniam v M.K. Mohan Krishnamachari 14. The
Supreme Court ruled, in the said decision, on three aspects, viz. (i) the
power of the High Court to interfere with the investigative process,
consequent to the lodging of FIR or filing of a criminal complaint, (ii)
the right, of the Police authorities, to investigate into the commission
of an alleged cognizable offence, and the exclusive province, reserved,
to them, in that regard and (iii) the jurisdiction, of the High Court, to
issue directions, regarding the manner in which the investigation was
to proceed. Regarding (ii) and (iii), which are fundamentally
interlinked, the Supreme Court held that the High Court could not
monitor the manner in which the investigation was to proceed,
investigation being a matter within the exclusive province of the
Police authorities. There can be no gainsaying this proposition which
is not, however, particularly relevant to the case at hand, as the
(1998) 5 SCC 749 : 1998 SCC (Cri) 1400
(2009) 10 SCC 488
petitioner does not seek any directions, regarding the manner in which
the Police is to investigate into the impugned FIR, nor does this Court
intend to pass any such directions. The emphasis, placed by Mr.
Rahul Mehra, on the autonomy of Police authorities, in the matter of
investigation, and the desirability of courts abstaining from directing
the manner in which the investigation is to be undertaken, is,
therefore, not really relevant to the controversy in issue.
33. Insofar as aspect (i), is concerned, the judgement in D.
Venkatasubramaniam14 observes, and holds, thus, relying on the
judgement of the Privy Council in King Emperor v. Khwaja Nazir
Ahmad15:
"2. It is well settled and this Court time and again
reiterated that the police authorities have the statutory right
and duty to investigate into a cognizable offence under the
scheme of Code of Criminal Procedure (for short "the Code").
This Court, on more than one occasion, decried uncalled for
interference by the courts into the domain of investigation of
crimes by police in discharge of their statutory functions. The
principle has been succinctly stated way back in King
Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA 203 :
AIR 1945 PC 18] and the same has been repeatedly quoted
with respect and approval.
3. The Privy Council observed that: (Khwaja Nazir
Ahmad case [(1943-44) 71 IA 203 : AIR 1945 PC 18] , IA p.
212)
"... Just as it is essential that every one accused of a
crime should have free access to a court of justice so
that he may be duly acquitted if found not guilty of the
offence with which he is charged, so it is of the utmost
importance that the judiciary should not interfere with
the police in matters which are within their province
AIR 1945 PC 18 : (1943-44) 71 IA 203
and into which the law imposes on them the duty of
inquiry."
4. The Privy Council further observed: (Khwaja Nazir
Ahmad case [(1943-44) 71 IA 203 : AIR 1945 PC 18] , IA
pp. 212-13)
"... In India, as has been shown, there is a statutory
right on the part of the police to investigate the
circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities,
and it would, as Their Lordships think, be an
unfortunate result if it should be held possible to
interfere with those statutory rights by an exercise of
the inherent jurisdiction of the court. The functions of
the judiciary and the police are complementary, not
overlapping, and the combination of individual liberty
with a due observance of law and order is only to be
obtained by leaving each to exercise its own function,
always, of course, subject to the right of the court to
intervene in an appropriate case when moved under
Section 491, Criminal Procedure Code to give
directions in the nature of habeas corpus. In such a case
as the present, however, the court's functions begin
when a charge is preferred before it, and not until then.
It has sometimes been thought that Section 561-A has
given increased powers to the court which it did not
possess before that section was enacted. But this is not
so. The section gives no new powers, it only provides
that those which the court already inherently possesses
shall be preserved and is inserted, as Their Lordships
think, lest it should be considered that the only powers
possessed by the court are those expressly conferred by
the Criminal Procedure Code, and that no inherent
power had survived the passing of that Act."
(emphasis supplied)
5. In State of W.B. v. S.N. Basak [AIR 1963 SC 447 :
(1963) 2 SCR 52] a Division Bench of three Judges of this
Court, while referring to the observations of the Privy Council
referred to hereinabove, observed: (AIR p. 448, para 3)
"3. ... With this interpretation, which has been put on
the statutory duties and powers of the police and of the
powers of the Court, we are in accord."
and it was further held: (AIR p. 448, para 3)
"3. ... The powers of investigation into cognizable
offences are contained in Chapter XIV of the Code of
Criminal Procedure. Section 154 which is in that
Chapter deals with information in cognizable offences
and Section 156 with investigation into such offences
and under these sections the police has the statutory
right to investigate into the circumstances of any
alleged cognizable offence ... and this statutory power
of the police to investigate cannot be interfered with by
the exercise of power under Section 439 or under the
inherent power of the court under Section 561-A of the
Criminal Procedure Code."
This Court, having found that the High Court had exceeded its
jurisdiction in interfering with the investigation, interfered
with the orders of the High Court by allowing the appeal
preferred by the State.
6. In State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC
554 : 1980 SCC (Cri) 272 : (1980) 2 SCR 16] , a three-Judge
Bench, speaking through Desai, J., after referring the
precedents including Khwaja Nazir Ahmad [(1943-44) 71 IA
203 : AIR 1945 PC 18] , held:
"25. There is a clear-cut and well demarcated sphere
of activity in the field of crime detection and crime
punishment. Investigation of an offence is the field
exclusively reserved for the executive through the
Police Department, the superintendence over which
vests in the State Government. The executive which is
charged with a duty to keep vigilance over law and
order situation is obliged to prevent crime and if an
offence is alleged to have been committed it is its
bounden duty to investigate into the offence and bring
the offender to book. Once it investigates and finds an
offence having been committed it is its duty to collect
evidence for the purpose of proving the offence. Once
that is completed and the investigating officer submits
report to the Court requesting the Court to take
cognizance of the offence under Section 190 of the
Code its duty comes to an end. On a cognizance of the
offence being taken by the Court the police function of
investigation comes to an end subject to the provision
contained in Section 173(8), there commences the
adjudicatory function of the judiciary to determine
whether an offence has been committed and if so,
whether by the person or persons charged with the
crime by the police in its report to the Court, and to
award adequate punishment according to law for the
offence proved to the satisfaction of the Court. There is
thus a well-defined and well-demarcated function in
the field of crime detection and its subsequent
adjudication between the police and the Magistrate.
This has been recognised way back in King
Emperor v. Khwaja Nazir Ahmad [(1943-44) 71 IA
203 : AIR 1945 PC 18] ....
*****
26. This view of the Judicial Committee clearly
demarcates the functions of the executive and the
judiciary in the field of detection of crime and its
subsequent trial and it would appear that the power of
the police to investigate into a cognizable offence is
ordinarily not to be interfered with by the judiciary."
34. Though Mr. Rahul Mehra places strong reliance on the afore-
extracted passages from D. Venkatasubramaniam14, the principles
enunciated therein, in the opinion of this Court, relate, prima facie, to
the jurisdiction of this Court to interfere with the investigative
process, rather than with the issue of whether, in a case where the FIR
does not disclose the commission of a cognizable offence,
investigation ought to be permitted to be undertaken at all. These are
distinct, and different, aspects, though the drawing line, between
them, is subtle; the submissions of Mr. Rahul Mehra, to that extent,
essentially obfuscate this distinction.
35. Yet another decision, on which Mr. Rahul Mehra placed great
reliance, is the judgement in State of Karnataka v. Pastor P. Raju16,
specifically to the following passage, therefrom:
"15. There is another aspect of the matter which deserves
notice. The FIR in the case was lodged on 15-1-2005 and the
petition under Section 482 Cr PC was filed within 12 days
on 27-1-2005 when the investigation had just commenced.
The petition was allowed by the High Court on 23-2-2005
when the investigation was still under progress. No report as
contemplated by Section 173 Cr PC had been submitted by
the in-charge of the police station concerned to the
Magistrate empowered to take cognizance of the offence.
Section 482 Cr PC saves inherent powers of the High Court
and such a power can be exercised to prevent abuse of the
process of any court or otherwise to secure the ends of
justice. This power can be exercised to quash the criminal
proceedings pending in any court but the power cannot be
exercised to interfere with the statutory power of the police
to conduct investigation in a cognizable offence. This
question has been examined in detail in Union of
India v. Prakash P. Hinduja, (2003) 6 SCC 195], where
after referring to King Emperor v. Khwaja Nazir Ahmad,
AIR 1945 PC 18, H.N. Rishbud v. State of Delhi, AIR 1955
SC 196, State of W.B. v. S.N. Basak, AIR 1963 SC
447, Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117
and State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554, it
was observed as under in para 20 of the Report (SCC):
"20. Thus the legal position is absolutely clear and
also settled by judicial authorities that the court would
not interfere with the investigation or during the course
of investigation which would mean from the time of
the lodging of the first information report till the
submission of the report by the officer in charge of the
(2006) 6 SCC 728
police station in court under Section 173(2) Cr PC, this
field being exclusively reserved for the investigating
agency."
This being the settled legal position, the High Court ought
not to have interfered with and quashed the entire
proceedings in exercise of power conferred by Section 482
Cr PC when the matter was still at the investigation stage."
36. Though the above observations of the Supreme Court, read in
isolation, may seem to support the submission, assiduously pressed by
Mr. Rahul Mehra, that this Court should adopt a "hands off" approach
in the present case, as the matter was still at the stage of investigation,
the observations have, in my opinion, to be seen in the backdrop of the
controversy which was before the Supreme Court. The respondent
Pastor P. Raju (hereinafter referred to as "Pastor", for the sake of
convenience), before the Supreme Court, was alleged to have
appealed, to certain persons, who were celebrating the Sankranthi
festival, to convert themselves to Christianity. This was resented, by
the said persons, resulting in the lodging of an FIR, against Pastor,
under Section 153-B of the IPC. Pastor was arrested and produced
before a Magistrate, who remanded him to judicial custody, as no
application for bail had been filed. The bail application, filed
subsequently, was rejected by the learned Magistrate on the ground
that Section 153-B of the IPC was a non-bailable offence. Pastor
moved the High Court, under Section 482, CrPC, contending that,
before initiation of proceedings under Section 153-B, IPC, prior
sanction, of the Central Government, or of the State Government or
the District Magistrate, as required by Section 196(1-A), CrPC, had
necessarily to be obtained and that, in the absence of such sanction,
the proceedings initiated against him were illegal and without
jurisdiction. This submission found favour with the High Court
which, accordingly, quashed the proceedings against Pastor. The
Supreme Court found the approach of the High Court to be erroneous,
on the ground that sanction, under Section 196 (1-A), CrPC, was
required before cognizance of the offence was taken, by the learned
Magistrate, and not before registration of an FIR. This provision, the
Supreme Court held, did not create any embargo to registration of a
criminal case, or investigation by the Police, or to submission of the
report, by the Police on completion of the investigation. When,
consequent thereto, the learned Magistrate was to take cognizance of
the offence, previous sanction of the Central Government, or the State
Government or the District Magistrate, was necessarily required to be
forthcoming, in the absence whereof violation of Section 196 (1-A),
CrPC, could be alleged. It was, therefore, held that, prior to taking of
cognizance by the learned Magistrate, and at the stage of investigation
by the Police, Section 196 (1-A), CrPC, had no application.
37. A holistic reading of the judgement of the Supreme Court
discloses that exception was taken, by the Supreme Court, to the High
Court quashing the proceedings, at the investigation stage, essentially
because the ground on which the High Court proceeded was
fundamentally erroneous in law, as it invoked Section 196 (1-A) of the
CrPC at a stage when the provision was not applicable at all.
Wholesale quashing of the investigation, on such an erroneous
premise, was, therefore, found, by the Supreme Court, to be
unsustainable.
38. The law declared by the Supreme Court, while, unquestionably,
binding on all judicial authorities, hierarchically below the Supreme
Court, under Article 141 of the Constitution of India, has, on occasion,
to be appreciated in the light of the controversy with which the
Supreme Court was engaged. It is for this reason that, on more than
one occasion, the Supreme Court has held that its judgements are not
to be read as Euclid's theorems 17. Pastor P. Raju16 is a case in which
the findings, on which Mr. Rahul Mehra places reliance, have
necessarily to be appreciated in the backdrop of the controversy before
the Supreme Court. They cannot, therefore, be treated as eviscerating,
in its entirety, Section 482 of the CrPC, or foreclosing, completely, the
power of the High Court to stay the investigative process, consequent
to the lodging of FIR, thereunder. In any event, in the wake of the
judgement in Imtiyaz Ahmed1, as followed, as late as in 2018, by the
Supreme Court in Asian Resurfacing of Road Agency Pvt Ltd2, it can
hardly be sought to be contended that interference, by the High Court,
at the stage of investigation by the police, consequent to registration of
FIR, or filing of the complaint, is completely proscribed.
39. Mr. Rahul Mehra, in fairness, did not pitch his case that high;
even while conceding the power, of this Court, to interfere, at the
stage of investigation consequent to FIR, and to stay the proceedings
in an appropriate case, he submits that such power is required to be
exercised on exceptional and rare occasions, where the investigation is
Union of India v Major Bahadur Singh (2006) 1 SCC 368; Haryana Financial Corporation v.
Jagdamba Oil Mills (2002) 3 SCC 496, among others
found to be completely unsustainable or mala fide, and cannot justify
interdiction, by this Court, in a case such as the present.
40. On the need for restraint, by the High Court, in such matters,
the last decision, on which Mr. Rahul Mehra relies, is Satvinder Kaur
v. State18 , specifically on the following passages, therefrom:
"14. Further, the legal position is well settled that if an
offence is disclosed the court will not normally interfere with
an investigation into the case and will permit investigation
into the offence alleged to be completed. If the FIR, prima
facie, discloses the commission of an offence, the court does
not normally stop the investigation, for, to do so would be to
trench upon the lawful power of the police to investigate into
cognizable offences. [State of W.B. v. Swapan Kumar Guha,
(1982) 1 SCC 561] It is also settled by a long course of
decisions of this Court that for the purpose of exercising its
power under Section 482 Cr PC to quash an FIR or a
complaint, the High Court would have to proceed entirely on
the basis of the allegations made in the complaint or the
documents accompanying the same per se; it has no
jurisdiction to examine the correctness or otherwise of the
allegations. [Pratibha Rani v. Suraj Kumar, (1985) 2 SCC
370, 395]
15. Hence, in the present case, the High Court committed a
grave error in accepting the contention of the respondent that
the investigating officer had no jurisdiction to investigate the
matters on the alleged ground that no part of the offence was
committed within the territorial jurisdiction of the police
station at Delhi. The appreciation of the evidence is the
function of the courts when seized of the matter. At the stage
of investigation, the material collected by an investigating
officer cannot be judicially scrutinized for arriving at a
conclusion that the police station officer of a particular police
station would not have territorial jurisdiction. In any case, it
has to be stated that in view of Section 178(c) of the Criminal
Procedure Code, when it is uncertain in which of the several
(1999) 8 SCC 728
local areas an offence was committed, or where it consists of
several acts done in different local areas, the said offence can
be enquired into or tried by a court having jurisdiction over
any of such local areas. Therefore, to say at the stage of
investigation that the SHO, Police Station Paschim Vihar,
New Delhi was not having territorial jurisdiction, is on the
face of it, illegal and erroneous. That apart, Section 156(2)
contains an embargo that no proceeding of a police officer
shall be challenged on the ground that he has no territorial
power to investigate. The High Court has completely
overlooked the said embargo when it entertained the petition
of Respondent 2 on the ground of want of territorial
jurisdiction.
16. Lastly, it is required to be reiterated that while
exercising the jurisdiction under Section 482 of the Criminal
Procedure Code of quashing an investigation, the court should
bear in mind what has been observed in the State of
Kerala v. O.C. Kuttan, (1999) 2 SCC 651 to the following
effect:
"Having said so, the Court gave a note of caution to
the effect that the power of quashing the criminal
proceedings should be exercised very sparingly with
circumspection and that too in the rarest of rare cases;
that the court will not be justified in embarking upon
an enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR or the
complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the
court to act according to its whim or caprice. It is too
well settled that the first information report is only an
initiation to move the machinery and to investigate into
a cognizable offence and, therefore, while exercising
the power and deciding whether the investigation itself
should be quashed, utmost care should be taken by the
court and at that stage, it is not possible for the court to
sift the materials or to weigh the materials and then
come to the conclusion one way or the other. In the
case of State of U.P. v. O.P. Sharma, (1996) 7 SCC
705 a three-Judge Bench of this Court indicated that
the High Court should be loath to interfere at the
threshold to thwart the prosecution exercising its
inherent power under Section 482 or under Articles
226 and 227 of the Constitution of India, as the case
may be, and allow the law to take its own course. The
same view was reiterated by yet another three-Judge
Bench of this Court in the case of Rashmi
Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397
where this Court sounded a word of caution and stated
that such power should be sparingly and cautiously
exercised only when the court is of the opinion that
otherwise there will be gross miscarriage of justice.
The Court had also observed that social stability and
order is required to be regulated by proceeding against
the offender as it is an offence against society as a
whole."
41. On the aspect that the FIR is required to disclose the
commission of a cognizable offence, Mr. Rahul Mehra submits that an
FIR is not an encyclopaedia, and relies, for the said proposition, on
the judgements of the Supreme Court in Supdt of Police, C.B.I. v.
Tapan Kumar Singh19 and State of U.P. v Naresh20.
42. Mr. Rahul Mehra has placed reliance on the following passages,
from Tapan Kumar Singh19:
"19. The High Court fell into an error in thinking that the
information received by the police could not be treated as a
first information report since the allegation was vague
inasmuch as it was not stated from whom the sum of rupees
one lakh was demanded and accepted. Nor was it stated that
such demand or acceptance was made as motive or reward for
doing or forbearing to do any official act, or for showing or
forbearing to show in exercise of his official function, favour
or disfavour to any person or for rendering, attempting to
render any service or disservice to any person. Thus there was
no basis for a police officer to suspect the commission of an
(2003) 6 SCC 175
(2011) 4 SCC 324
offence which he was empowered under Section 156 of the
Code to investigate.
20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details
relating to the offence reported. An informant may lodge a
report about the commission of an offence though he may not
know the name of the victim or his assailant. He may not even
know how the occurrence took place. A first informant need
not necessarily be an eyewitness so as to be able to disclose in
great detail all aspects of the offence committed. What is of
significance is that the information given must disclose the
commission of a cognizable offence and the information so
lodged must provide a basis for the police officer to suspect
the commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information
given suspects the commission of a cognizable offence, and
not that he must be convinced or satisfied that a cognizable
offence has been committed. If he has reasons to suspect, on
the basis of information received, that a cognizable offence
may have been committed, he is bound to record the
information and conduct an investigation. At this stage it is
also not necessary for him to satisfy himself about the
truthfulness of the information. It is only after a complete
investigation that he may be able to report on the truthfulness
or otherwise of the information. Similarly, even if the
information does not furnish all the details he must find out
those details in the course of investigation and collect all the
necessary evidence. The information given disclosing the
commission of a cognizable offence only sets in motion the
investigative machinery, with a view to collect all necessary
evidence, and thereafter to take action in accordance with law.
The true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the
police officer concerned is empowered under Section 156 of
the Code to investigate. If it does, he has no option but to
record the information and proceed to investigate the case
either himself or depute any other competent officer to
conduct the investigation. The question as to whether the
report is true, whether it discloses full details regarding the
manner of occurrence, whether the accused is named, and
whether there is sufficient evidence to support the allegations
are all matters which are alien to the consideration of the
question whether the report discloses the commission of a
cognizable offence. Even if the information does not give full
details regarding these matters, the investigating officer is not
absolved of his duty to investigate the case and discover the
true facts, if he can."
(Italics and underscoring supplied)
43. Likewise, Mr. Rahul Mehra relies on the following passages,
from Naresh20:
"31. The High Court has also fallen into error in giving
significance to a trivial issue, namely, that in respect of the
morning incident all the accused had not been named in the
complaint/NCR.
32. It is a settled legal proposition that an FIR is not an
encyclopaedia of the entire case. It may not and need not
contain all the details. Naming of the accused therein may be
important but not naming of the accused in FIR may not be a
ground to doubt the contents thereof in case the statement of
the witness is found to be trustworthy. The court has to
determine after examining the entire factual scenario whether
a person has participated in the crime or has falsely been
implicated. The informant fully acquainted with the facts may
lack necessary skill or ability to reproduce details of the
entire incident without anything missing from this. Some
people may miss even the most important details in narration.
Therefore, in case the informant fails to name a particular
accused in the FIR, this ground alone cannot tilt the balance
of the case in favour of the accused. (Vide Rotash v. State of
Rajasthan, (2006) 12 SCC 64 and Ranjit Singh v. State of
M.P., (2011) 4 SCC 336.)
(Emphasis supplied)
44. I may dispose of this submission, of Mr. Rahul Mehra, at this
juncture itself. There can be no gainsaying the proposition that an FIR
is not an encyclopaedia, and need not, necessarily, contain all details
of the act, constituting the offence alleged. The two decisions, on
which Mr. Rahul Mehra relies, i.e. Tapan Kumar Singh19 and
Naresh20, make the legal position, in this regard, clear. "All facts and
details relating to the offence", need not be contained in the FIR. The
informant, on the basis of whose information the FIR is registered,
may not know how the occurrence took place, and may not be an
eyewitness, who can disclose, in great detail, all aspects of the
offence. Non-naming of the accused, in the FIR, may not be a ground
to doubt the contents thereof. The informant "may lack necessary
skill or ability to reproduce details of the entire incident without
anything missing", and "may miss even the most important details in
narration" (as specifically noted in Naresh20). That, by itself, would
not vitiate the FIR. This principle, needless to say, is practically
axiomatic. Equally axiomatic, however, is the caveat, consciously
entered, by the Supreme Court, in the afore-extracted passage from
Tapan Kumar Singh19, that "the information given must disclose the
commission of a cognizable offence and ... must provide a basis for
the police officer to suspect the commission of a cognizable offence".
As observed in Tapan Kumar Singh19, "the question as to whether the
report is true, whether it discloses full details regarding the manner of
occurrence, whether the accused is named, and whether there is
sufficient evidence to support the allegations are all matters which are
alien to the consideration of the question whether the report discloses
the commission of a cognizable offence".
45. In the ultimate eventuate, therefore, the litmus test is whether
the allegations, and recital, in the FIR, disclose the commission of a
cognizable offence. If the answer to the question is in the negative,
there is no embargo, on the High Court, interfering with the
investigation, or in interdicting the process of the FIR - subject, of
course, in the case of any interlocutory interdiction, with satisfaction
of the requirement of a prima facie case, balance of convenience,
irreparable loss and public interest.
46. The only allegation in the impugned FIR, in the present case, is,
clearly, violation, by the petitioner, of the directions contained in the
Orders, dated 30th April, 2020 supra, of the GNCTD, and 6th May,
2020 supra, of the Health and Family Welfare Department, GNCTD,
to the extent these orders required collection of samples, for COVID-
2019 testing, to be done only through the RT-PCR App. There is no
other allegation in the FIR. There is no reference, in the FIR, to this
infraction, on the part of the petitioner, in collecting samples through
the RT-PCR app, having caused or obstruction, annoyance or injury,
or risk of obstruction, annoyance, or injury, to any person lawfully
employed, or having caused, or attempted to cause, danger to human
life, health or safety, or riot or affray. Disobedience of an order,
promulgated by a public servant, is, clearly, by itself not an offence
under Section 188 of the IPC. Section 188 is categorical in treating
such disobedience as an offence only if one or more of the
consequences, visualised in the Section, follow, as a result of such
disobedience. The FIR does not so allege, either expressly or by
necessary implication; consequently, it has to be held that the
allegations in the FIR do not disclose the commission of a cognizable
offence.
47. As already noted hereinabove, and at the cost of repetition, an
FIR need not be an encyclopaedia, or contain, within it, all minute
factual details, regarding the incident, which is alleged to amount to
an offence. Even so, the facts, stated in the FIR, and the allegations
contained therein, must disclose the commission of a cognizable
offence. Else, the very registration of the FIR would be unjustified.
48. Mr. Rahul Mehra, to his credit, strained every sinew, to
convince this Court that the alleged infraction, on the part of the
petitioner, imperilled not one, but many human lives. He endeavoured
to submit that the very purpose of introducing the RT-PCR App, was
to enable real-time monitoring of testing of COVID-2019 cases, and,
if necessary, providing immediate treatment. He also submitted that
several casualties had occurred, merely because of delay, in
transmitting, to the concerned authorities, the fact of a person, or
persons, being COVID-2019 positive. It was to avoid such delays,
submits Mr. Mehra, that the RT-PCR App was introduced. By failing
to take samples in accordance with the RT-PCR App, the petitioner,
therefore, submits Mr. Mehra, had disabled the authorities from being
able to react promptly, and, in the consequence, saving as many lives
as possible. The interlink, between the infraction alleged to have been
committed by the petitioner, and impairment of human health and, in
fact, loss of human life is, Mr. Mehra would submit, undeniable. The
COVID-2019 pandemic had created, Mr. Rahul Mehra submits, an
unprecedented situation, in which there was no room for
complacency. An example was required to be set, in his submission,
and while, ultimately, it was quite possible that the charge, against the
petitioner, of having committed an offence, under Section 188 of the
IPC, might be dropped, hospitals, and laboratories, who blindly
decided to violate governmental directives, regarding sampling of
COVID-2019 test cases, were required to be made aware of the fact
that no such aberration would be lightly tolerated.
49. This Court is, prima facie, not inclined to agree with Mr. Rahul
Mehra. In the first place, the impugned FIR does not allege any
impediment to human health, or loss to human life, having resulted, as
a consequence of the default, on the part of the petitioner, in
complying with the requirement of using the RT-PCR App. Secondly,
and, probably, more importantly, the various communications,
between the respondent as the petitioner, prior to launching of the
impugned FIR, do not disclose that, as a consequence of the failure,
on the part of the petitioner, to collect samples, for COVID-2019
testing using the RT-PCR App, any danger to human life, much less
any loss to human life, had resulted. The communications, to which
exhaustive reference has already been made hereinabove, merely
allege infraction, by the petitioner, in failing to comply with the
directive of using the RT-PCR App, and nothing more. The impugned
FIR, too, contains no such suggestion. It is only during oral
arguments, of Mr. Rahul Mehra, that it has been sought to be
suggested that, as a consequence of the default, on the part of the
petitioner, in using the RT-PCR App, human lives may have been
imperilled. The validity of the impugned FIR cannot be tested on the
basis of such an oral submission, unsupported by the official record.
Rather, the Show Cause Notice, dated 2nd June, 2020, issued to the
petitioner, acknowledges, candidly, that the petitioner had, daily, been
submitting the record of COVID-2019 testing, and its outcome, to the
respondent. No default, on the part of the petitioner, in submitting the
said data, or error or aberration therein, is alleged in the impugned
FIR.
50. The submission, of Mr. Mehra, that implicit obedience, by all
functionaries, with governmental directives, issued for the
management of the COVID-2019 pandemic, command implicit
obedience, is obviously unexceptionable. That, however, cannot
justify initiation of criminal action, against a hospital, alleging
commission, by it, of an offence, which the allegations in the FIR,
even taken at their face value, do not disclose. The necessity to ensure
compliance, with public functionaries, with governmental instructions,
cannot justify proceeding in a manner opposed to the law. That the
ends justify the means may, axiomatically, be true; legally, however,
the ends, as well as the means, have to conform to the law.
51. The first two circumstances, in which Bhajan Lal8 permits
interference, by the High Court, at the stage of investigation
consequent to registration of an FIR, are "where the allegations made
in the first information report, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused" and "where the allegations in
the first information report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under section 156(1) of the Code ...".
Without adverting to the other circumstances visualized, by the
Supreme Court, in the said decision, as meriting interference with the
investigative process, it is self-evident that, as the recitals, in the
impugned FIR, do not disclose the commission of any cognizable
offence, under Section 188, IPC, a clear prima facie case, in the
petitioner's favour, is made out, falling squarely within the parameters
of the Bhajan Lal8 principles.
52. This Court is aware of the fact that Regulation 18 of the 2020
COVID Regulations contains a warning, to the effect that any
person/institution/organization found violating any provision of the
said Regulations would be deemed to have committed an offence
punishable under Section 188 of the IPC. This caveat, entered as it is
in Regulations - albeit issued under the Epidemic Diseases Act -
cannot wish away the ingredients of Section 188 of the IPC, which
constitutes a plenary parliamentary legislation. If, therefore, the
failure, on the part of any person/institution/organization, to comply
with any provision of the 2020 COVID Regulations, results in one of
the consequences envisaged under Section 188, then, and only then,
can an offence, under the said provision, be said to have been
committed; not otherwise. The recital, to such effect, has necessarily
to find place in the FIR, though the truth, or sustainability, thereof,
may be subject matter of investigation to be conducted thereafter.
Besides, in the present case, violation, by the petitioner is alleged, not
directly of the 2020 COVID Regulations, but of governmental Office
Orders, issued thereunder. Be that as it may, the criminal process
cannot be initiated, against an institution, merely on the ground that
such violation has taken place, sans any allegation that it has led to
one of the consequences statutorily engrafted in Section 188 of the
IPC.
53. An ad interim injunction, restraining the Police from
investigating, consequent on the impugned FIR, would also seem to
be justified, on the touchstone of balance of convenience, irreparable
loss, and public interest - considerations which, in the facts of the
present case, and in the present times, are inextricably intertwined.
The petitioner-Hospital is, admittedly, a frontliner, in the war against
the COVID-2019 pandemic, being fought by the nation at present.
Though Mr. Rahul Mehra attempted to dichotomise the role of the
Hospital, vis-à-vis the doctors administering treatment therein, this
distinction, in my view, has no legs to stand on. A hospital, as a unit,
is a cohesive whole, comprising its administration, its doctors, its
paramedical staff, and every other person associated with its working,
and with administering therapy to the ailing. Allowing investigation,
consequent on the impugned FIR, to be undertaken, at this stage, on
the basis of a perceived distinction between the hospital, and the
doctors working therein, as suggested by Mr Rahul Mehra, would, in
my view, be severely detrimental to public interest, especially as there
is nothing in the FIR to suggest that the petitioner-Hospital has, in any
way, impeded its doctors in treating patients suffering from the
COVID-2019 pandemic, which is of paramount importance. Any
such investigation is bound to involve, and invite, its inevitable
sequelae, including summons, visits by the Police, and other
associated activities, with which, in my opinion, as things stand at
present, the petitioner-Hospital, at present, should not be burdened.
Involving the petitioner-Hospital in a criminal investigative process, at
this point of time, is bound to have its impact on the efforts, of the
petitioner-Hospital, to contribute to the management of the COVID-
2019 pandemic. Any such investigation would, therefore, be, in my
view, intrinsically opposed to public interest.
54. Any such investigation is also likely to result in irreparable
prejudice to the petitioner-Hospital, as subjection, to a criminal
investigation, with the publicity which it inevitably entails, would
irreparably mar the reputation of the petitioner-Hospital. In a case in
which the FIR does not even disclose the commission of a cognizable
offence, under Section 188 of the IPC, I am, prima facie, of the view
that no justification, for subjecting the petitioner-Hospital to such an
investigation, exists.
55. The balance of convenience would also be in favour of
interdicting, for the present, any investigation, consequent to the
impugned FIR. As and when the present petition is finally decided, if
it is found that no case, for quashing the impugned FIR, or the
investigation following thereupon, is made out, the Police could
always resume its investigation. If, on the other hand, this Court is,
ultimately, to find that the FIR is liable to be quashed, the detriment
caused, to the working, as well as to the reputation, of the petitioner-
Hospital, consequent to any investigation that may be undertaken in
the interregnum, would be irreversible.
56. I am, therefore, convinced that, tested on the principles of
existence of a prima facie case, balance of convenience, irreparable
loss, and public interest, the process of investigation, consequent to
the registration of the impugned FIR against the applicant, deserves to
be stayed, pending final disposal of the present writ petition.
57. In view thereof, I abstain from returning any findings, on other
issues raised by the petitioner, including the applicability of Section
95 of the IPC and Section 195 of the CrPC, leaving these issues open,
to be decided when the matter is finally heard.
58. In keeping with the directives issued by the Supreme Court in
such cases - especially directive (iii) in Imtiyaz Ahmed1 - and in the
interests of expediting of the proceedings, it is made clear that, on the
next date of hearing, i.e. 11th August, 2020, W.P. (Crl.) 921/2020
would be finally heard and disposed of. Counter affidavit, and
rejoinder, be mandatorily filed within the period stipulated in the
order, dated 15th June, 2020. No extension of time would be
permitted therefor, and, ordinarily, no adjournment would be granted
on 11th August, 2020.
59. The stay application is, accordingly, allowed. All proceedings,
consequent to the registration of the impugned FIR No 0133, dated 5th
June, 2020, registered at PS Rajinder Nagar, including investigation
by the Police, shall remain stayed, pending disposal of W.P. (Crl.)
921/2020.
60. All observations, in this judgement, are prima facie, and
intended only for disposing of the prayer of ad interim injunction, and
are not to be treated as a final expression of opinion, on the
contentions of either side.
C. HARI SHANKAR, J.
JUNE 22, 2020
HJ
