Delhi High Court
Sarmad Ahmed vs State Of Nct Of Delhi & Ors. on 12 October, 2021
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 6th September, 2021
Decided on: 12th October, 2021
+ CRL.M.C. 1681/2021
SARMAD AHMED ..... Petitioner
Represented by: Mr.M.R. Shamshad, Mr.Arijit Sarkar
and Ms.Nabeela Jamal, Advocates.
versus
STATE OF NCT OF DELHI & ORS. ..... Respondents
Represented by: Mr.G.M. Farooqui, APP for the State
with SI Vijay, PS Madhu Vihar.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By this petition, petitioner seeks quashing of charge-sheet dated 2nd
April, 2021 filed by the respondent/State in FIR No.102/2020 dated 7th April,
2020 registered at PS Madhu Vihar, District East, New Delhi for offences
punishable under Section 188 IPC and Section 3 of the Epidemic Disease
Act, 1897.
2. Grievance of the petitioner in the present petition is to the invocation
of the quarantine order retrospectively and on the basis of an alleged
violation based on the phone call detail of the petitioner, the above noted
FIR stood registered and a charge-sheet filed.
3. Briefly the facts resulting in registration of the FIR No.102/2020 are
that the petitioner left India for France on 19th October, 2019 and returned
back to India on 5th February, 2020. When the petitioner returned back to
India no orders directing mandatory institutional/home quarantine were in
force. On 30th January, 2020, WHO declared Covid-19 as a public health
Signature Not Verified
Digitally Signed By:JUSTICE
Signing Date:13.10.2021
09:49:45
emergency. Much after the petitioner came back to India from France on 5th
February, 2020, the Government of India on 12th March, 2020 issued
guidelines in the wake of Covid-19 situation thereby asking people to follow
mandatory quarantine norm of 15 days for those who had travelled to and
from China, Italy, Iran, Republic of Korea, France, Spain and Germany.
4. On 14th March, 2020 a person representing to be from Health
Department visited the residential premises of the petitioner and asked about
his travel plans which the petitioner informed. The petitioner also informed
that he had no symptoms of Covid-19. On 22nd March, 2020 the
Government of India announced one day Janta Curfew followed by the
complete lockdown for a period of 21 days in order to contain the effect of
spread of Covid-19. On 7th April, 2020 the above noted FIR was registered
against the petitioner under Section 188 of the IPC, Section 3 of the
Epidemic Disease Act, 1897.
5. The allegations in the FIR were that the petitioner was directed to
keep himself in home quarantine from 16th March, 2020 to 30th March,
2020. To track the movement of the petitioner the CDR of his mobile phone
was taken out and it was noticed that on 19th , 20th, 23rd March, 2020 and
many other times he violated the condition of home quarantine, visiting
various places without informing the competent authority, thereby
endangering the life of general public.
6. On 4th December, 2020 the petitioner came to know about the
registration of the said FIR. On 25th March, 2021 the petitioner was served
with a notice under Section 41A of Cr.P.C. to appear at PS Madhu Vihar on
27th March, 2021 at 4.00 PM. On 2nd July, 2021 summons were issued to
the petitioner. On 7th July, 2021 the petitioner received a phone call from PS
Signature Not Verified
Digitally Signed By:JUSTICE
Signing Date:13.10.2021
09:49:45
Madhu Vihar asking him to collect the summons, hence the present petition.
7. As per the FIR, on 19th, 20th, 23rd March, 2020 and many other times,
the petitioner violated the norms which fact came to be known to the
respondent by analysing the call detail records of the petitioner. A status
report in response to the present petition has been filed by the State.
According to the status report, the CDR of the petitioner's mobile phone was
obtained from 15th March, 2020 to 6th April, 2020 and on 3rd April, 2020 the
petitioner was found violating as he was found roaming at different places
on 3rd April, 2020.
8. Relevant clauses 12 and 17 of the guidelines issued by the Ministry of
Home Affairs dated 24th March, 2020 are as under:
"12. All persons who have arrived into India after 15.02.2020,
and all such persons who have been directed by health care
personnel to remain under strict home/institutional quarantine
for a period as decided by local Health Authorities, failing
which they will be liable to legal action under Sec. 188 of the
IPC.
xxx
17.Any person violating these containment measures will be
liable to be proceeded against as per the provisions of Section
51 to 60 of the Disaster Management Act, 2005, besides legal
action under Sec. 188 of the IPC."
9. The issue in the present petition is that the petitioner having come to
India on 5th February, 2020 whether the guidelines issued by the respondent,
which were applicable from 15th February, 2020, could have been made
applicable to the petitioner from 5th February, 2020. It is well settled that a
restriction cannot be imposed retrospectively. The guidelines dated 24th
March, 2020 were made applicable from 15th February, 2020. However, the
petitioner had entered India on 5th February, 2020 and not on/or after 15th
Signature Not Verified
Digitally Signed By:JUSTICE
Signing Date:13.10.2021
09:49:45
February, 2020. As per the charge-sheet, the petitioner violated the
quarantine order dated 16th March, 2020 which was in force till 30th March,
2020 when the guidelines were applicable to the people who had come on or
after 15th February, 2020 the petitioner not falling in that category having
entered India on 5th February, 2020. Thus, this Court is of the considered
view that the very genesis of the prosecution case against the petitioner is
faulted. Further though the case in the charge-sheet is for violation on 19th,
20th and 23rd March, 2020 till 30th March, 2020 however, now in the status
report it is alleged that the petitioner was out on 3rd April, 2020. It is thus
evident that an all together new case is now being made out in the status
report which is contrary to the charge sheet.
10. Be that as it may, besides the conflicting stands in the charge-sheet
and the status report, the fact that once the guidelines issued on 24th March,
2020 were applicable for people entering India on or after 15th February,
2020 the same could not have been given further retrospective operation for
the petitioner who had arrived in the country on 5th February, 2020,
therefore the petitioner cannot be subjected to the prosecution for the
offences as mentioned above.
11. Consequently, FIR No.102/2020 under Section 188 of the IPC and
Section 3 of the Epidemic Disease Act, 1897, registered at PS Madhu Vihar,
East District, New Delhi and the proceedings pursuant thereto are quashed.
12. Petition is disposed of.
13. Order be uploaded on the website of this court.
(MUKTA GUPTA)
JUDGE
OCTOBER 12, 2021/'vn'
Signature Not Verified
Digitally Signed By:JUSTICE
Signing Date:13.10.2021
09:49:45
