Jharkhand High Court
Rajeev Singh Dugal @ Rajeev Duggal Aged ... vs The State Of Jharkhand ... Opposite ... on 12 June, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.2313 of 2022
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Rajeev Singh Dugal @ Rajeev Duggal aged about 64 years, son of
Purushottam Singh Dugal, resident of Holding No.4, Jubilee Road,
Near Beldih Triangle, Bistupur, P.O. & P.S. Bistupur, District East
Singhbhum (Jharkhand). ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Indrajit Sinha, Advocate
Mr. Sagar Kumar, Advocate
For the State : Ms. Priya Shreshtha, Spl. P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the entire criminal proceeding in connection with
Bistupur P.S. Case No.87 of 2020 corresponding to G.R. No.659 of 2021
registered for the offences punishable under Sections 188, 269, 270 of the Indian
Penal Code and Section 54 of the Disaster Management Act, 2005 and Section 3
of Epidemic Diseases Act, 1897 in which consequent upon submission of
charge-sheet, cognizance has been taken inter alia against the petitioner for
having committed the offences punishable under Sections 188, 269, 270 of the
Indian Penal Code and Section 51 of the Disaster Management Act, 2005 and
Section 3 of Epidemic Diseases Act, 1897 and the said case is now pending
before the learned Chief Judicial Magistrate, Jamshedpur.
3. The brief facts of the case is that on 25.04.2020, the informant and others
got information that in violation of the restrictions imposed during the COVID-
19 pandemic, the petitioner opened his hotel and spa and some persons were
partying in the said hotel. After investigation, police submitted charge-sheet
and cognizance has been taken as already indicate above.
4. Learned counsel for the petitioner relies upon the judgment of this Court
in the case of Ajay Sakuja vs. The State of Jharkhand passed in Cr.M.P.
No.2541 of 2021 dated 13.05.2024 paragraphs-10 and 11 of which read as
under:-
"10. So far as the offence punishable under Section 51(b) of the
Disaster Management Act, 2005 is concerned, in view of Section 60
of the said Act, certainly the court ought not have taken cognizance
except on a complaint made by the authority/officer concerned, who
has been authorized under Section 60 of the said Act, as already
indicated above in the foregoing paragraphs of the Judgment, to
make such complaint. Otherwise also, in the absence of any
allegation that the petitioner refused to comply with any direction
given by or on behalf of the Government or Executive Committee or
Disaster Authority under the Act, even if the allegations made
against the petitioner are considered to be true in their entirety, still
the offence punishable under Section 51(b) of the Disaster
Management Act, 2005 is not made out.
11. So far as the offence punishable under Section 3 of the Epidemic
Diseases Act, 1897 is concerned, as rightly submitted by the learned
counsel for the petitioner that there is no allegation against the
petitioner to constitute any of the offences for which penalty has
been provided for in Section 3 of the Epidemic Diseases Act, 1897;
as there is no allegation against the petitioner of disobeying any
regulation or order made under the Epidemic Diseases Act, 1897
nor there is any allegation of any violation having committed
against a Health Care Service Personnel or damage or loss to any
property having been caused. Under such circumstances, this Court
is of the considered view that even if the entire allegation made in
the F.I.R, the materials collected during the investigation as
mentioned in the case diary and the charge sheet are considered to be
true in their entirety, still the offence punishable under Section 3 of
the Epidemic Diseases Act, 1897 is not made out."
and submits that in view of Section 60 of the Disaster Management Act,
2005, the Court ought not have taken cognizance of the offence punishable
under Section 51 (b) of the said Act except on a complaint made by the
authority/officer concerned, who has been authorized under Section 60 of the
said Act.
5. Learned counsel for the petitioner further submits that there is no
allegation against the petitioner that the petitioner refused to comply with any
direction given by or on behalf of the Government or Executive Committee or
Disaster Authority under the Act. Hence, no offence punishable under Section
51 (b) of the Disaster Management Act, 2005 is made out against the petitioner.
6. So far as the offence punishable under Section 3 of Epidemic Diseases
Act, 1897 is concerned, learned counsel for the petitioner submits that there is
no allegation against the petitioner to indulge in any act constituting any of the
offences for which penalty has been provided for in Section 3 of the Epidemic
Diseases Act, 1897, as there is no allegation against the petitioner of disobeying
any regulation or any order made under the Epidemic Diseases Act, 1897 nor is
there any allegation of any violation having been committed against a Health
Care Service Personnel or damage or loss to any property having been caused.
Hence, it submitted that the offence punishable under Section 3 of Epidemic
Diseases Act, 1897 is also not made out against the petitioner.
7. So far as the offence punishable under Section 188 of the Indian Penal
Code is concerned, learned counsel for the petitioner relies upon the judgment
of this Court in the case of Dr. Nishikant Dubey vs. The State of Jharkhand
passed in Cr.M.P. No.3102 of 2022 dated 10.05.2024 paragraphs-13 and 16 of
which read as under:-
"13. Having heard the submissions made at the Bar and after going
through the materials in the record, it is pertinent to refer to Section
188 of the Indian Penal Code which reads as under:-
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 persons 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 six 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.
The essential ingredients of the offences punishable under Section 188 of
the Indian Penal Code are as follows:-
(i) There was promulgation of an order;
(ii) Such promulgation was made by a public servant;
(iii) Public servant was legally empowered to make the
promulgation;
(iv) Promulgation directed not to do certain things or to take
certain orders in connection with certain property in his
possession or management;
(v) Accused knew of the promulgation;
(vi) Accused disobeyed it;
(vii) Such disobedience caused or intended to cause obstruction,
annoyance, injury or risk of the same to a person lawfully
employed or caused or tender to cause danger to human life,
health or safety, or caused or tender to cause riot or affray.
16. It is needless to mention that Section 195 of the Code of
Criminal Procedure envisages filing of a complaint in writing by
the public servant concerned, the contempt of whose lawful
authority has been committed or some other public servant to whom
he is administratively subordinate."
and submits that Section 195 of the Code of Criminal Procedure
envisages filing of a complaint in writing by the public servant concerned and
there is no allegation of the essential ingredients to constitute the offence
punishable under Section 188 of the Indian Penal Code. Hence, it is submitted
that the offence punishable under Section 188 of the Indian Penal Code is not
made out against the petitioner because of lack of essential ingredients and no
complaint envisaged under Section 195 of the Code of Criminal Procedure
having been filed.
8. So far as the offence punishable under Section 269 and 270 of the Indian
Penal Code is concerned, learned counsel for the petitioner submits that there
is no allegation against the petitioner that the petitioner was present at the
place of occurrence. The petitioner has been arrayed as an accused as he is one
of the Directors of M/S. S.R.P. Oil Private Limited which is the owner of the
hotel Alcor and the company has not been arrayed as an accused. Relying upon
the judgment of Hon'ble High Court of Punjab and Haryana in the case of
Sidak Singh Sandhu vs. U.T. Chandigarh & Another dated 27.07.2022,
learned counsel for the petitioner submits that in order to attract the offence
punishable under Section 269 of the Indian Penal Code, the accused must
commit any act in which he is likely to spread infection of any disease which is
dangerous to life but there is no allegation that any of the persons arrested or
any other person present in the alleged place of occurrence, was suffering from
any infectious disease or having done any act with knowledge or reason to
believe that such act was likely to spread the infection of any disease
dangerous to life. Hence, it is submitted that the offence punishable under
Section 269 of the Indian Penal Code is not made out against the petitioner.
9. So far as the offence punishable under Section 270 of the Indian Penal
Code is concerned, learned counsel for the petitioner submits that the word
'malignantly' means villainously, in a spiteful manner. It is then submitted
that, there is no allegation against the petitioner of doing anything malignantly
nor is there any allegation against the petitioner that the petitioner knew or had
reason to believe that his act is likely to spread infection of any disease which is
dangerous to life. Hence, it is submitted that as none of the offences for which
cognizance has been made against the petitioner is made out, even if the
allegations made against the petitioner considered to be true in their entirety,
hence, it is submitted that the entire criminal proceeding in connection with
Bistupur P.S. Case No.87 of 2020 corresponding to G.R. No.659 of 2021 which is
now pending before the learned Chief Judicial Magistrate, Jamshedpur be
quashed and set aside.
10. Learned Spl.P.P. appearing for the State vehemently opposes the prayer
of the petitioner to quash and set aside the entire criminal proceeding in
connection with Bistupur P.S. Case No.87 of 2020 corresponding to G.R. No.659
of 2021 which is now pending before the learned Chief Judicial Magistrate,
Jamshedpur. Learned Spl.P.P. appearing for the State submits that the
undisputed fact is that at the relevant time there were orders promulgated by
the competent authority of the State Government for not opening of hotels with
the objective of arresting the spread of COVID-19 pandemic. As the petitioner
were well aware about such prohibitory orders of the competent officer of the
Government, it is submitted that, hence the conduct of the petitioner in
opening the hotel in violation of such prohibitory order, amounts to his
knowledge and having reason to believe that such act of him will result in
spreading the infectious disease of COVID-19 which is dangerous to life. It is
next submitted that both the offences punishable under Section 269 and 270 of
the Indian Penal Code , are made out against the petitioner. Therefore, it is
submitted that this Cr.M.P., being without any merit, be dismissed.
11. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, it is pertinent to mention
here that so far as the offence punishable under Section 51 (b) of the Disaster
Management Act, 2005 is concerned, there is no allegation against the
petitioner of refusing to comply with any direction given by or on behalf of the
Government or National Executive Committee or State Executive Committee
or the District Authority under the Disaster Management Act, 2005. Section 60
of the Disaster Management Act, 2005 reads as under:-
"60. Cognizance of offences.--No court shall take cognizance of an
offence under this Act except on a complaint made by--
(a) the National Authority, the State Authority, the Central
Government, the State Government, the District Authority or any
other authority or officer authorised in this behalf by that Authority or
Government, as the case may be; or
(b) any person who has given notice of not less than thirty days
in the manner prescribed, of the alleged offence and his intention to
make a complaint to the National Authority, the State Authority, the
Central Government, the State Government, the District Authority or
any other authority or officer authorised as aforesaid." (Emphasis
supplied)
envisages that cognizance of the offences punishable under Disaster
Management Act, 2005 can only be taken on a complaint made by the
authority/person mentioned therein but in this case, as no complaint has been
filed directly with the court concerned rather an F.I.R. has been lodged; so on
both these reasons, the cognizance of the offence punishable under Section 51
(b) of the Disaster Management Act, 2005 taken by the court, firstly because of
the same has been taken on the basis of police report and secondly, as there is
lack of the essential ingredients to constitute the said offence, is bad in law.
12. So far as the offence punishable under Section 3 of Epidemic Diseases
Act, 1897 is concerned, Section 3 of the Epidemic Diseases Act, 1897 reads as
under:-
"3. Penalty.--[(1)] Any person disobeying any regulation or
order made under this Act shall be deemed to have committed an
offence punishable under Section 188 of the Indian Penal Code (45 of
1860).
[(2) Whoever,--
(i) commits or abets the commission of an act of violence against
a healthcare service personnel; or
(ii) abets or causes damage or loss to any property,
shall be punished with imprisonment for a term which shall not be
less than three months, but which may extend to five years, and with
fine, which shall not be less than fifty thousand rupees, but which
may extend to two lakh rupees.
(3) Whoever, while committing an act of violence against a
healthcare service personnel, causes grievous hurt as defined in
Section 320 of the Indian Penal Code (45 of 1860) to such person,
shall be punished with imprisonment for a term which shall not be
less than six months, but which may extend to seven years and with
fine, which shall not be less than one lakh rupees, but which may
extend to five lakh rupees.]"
shows that there are three different kinds of offences for which penalty
has been provided for in the said Section 3 of the Epidemic Diseases Act, 1897,
first one under Section 3 (1) of the Epidemic Diseases Act, 1897 relates to a
person disobeying any regulation or order made under the Epidemic Diseases
Act, 1897. There is obviously no allegation against the petitioner of disobeying
any regulation or order made under the Epidemic Diseases Act, 1897. Section 3
(2) (i) & (ii) of the Epidemic Diseases Act, 1897 is regarding the offence of
commission of act of violence against the Health Care Service Personnel or
abetting or causing damage or loss to any property. There is no allegation
against the petitioner of causing any loss to any property nor is there any
allegation of violence against the Health Care Service Personnel. Section 3(3) of
the Epidemic Diseases Act, 1897 relates to an aggravated form of offence
punishable under Section 3(2) (i) of the said Act; that is when by violence
against a Health Care Service Personnel, grievous hurt is also caused to such
victim and as none of the said allegation has been made against the petitioner
in the F.I.R., charge sheet or anywhere in the case diary, hence, this Court is of
the considered view that even if the entire allegation made against the
petitioner in the FIR, the materials collected during the investigation and
charge-sheet are considered to be true in their entirety, still the offence
punishable under Section 3 of Epidemic Diseases Act, 1897 is not made out
against the petitioner.
13. So far as the offence punishable under Section 188 of the Indian Penal
Code is concerned, in the F.I.R. there is no reference to any promulgation of
any order which has been violated by the petitioner. Section 195 of the Code of
Criminal Procedure debars any court from taking cognizance of any offence
punishable under Sections 172 to 188, of the Indian Penal Code both inclusive;
or any abetment or attempt to commit such offence or any criminal conspiracy
to commit such offence except on the complaint in writing of the public servant
concerned or of some other public servant; to whom he is administratively
subordinate.
14. It is a settled principle of law that the provisions of section 195 of the
Code of Criminal Procedure is mandatory and the non-compliance of which
will vitiate the prosecution. It is relevant to refer paragraph-33 of the judgment
of the Hon'ble Supreme Court of India in the case of C. Muniappan & Others
vs. State of Tamil Nadu reported in (2010) 9 SCC 567 which reads as under:-
"33. Thus, in view of the above, the law can be summarised to
the effect that there must be a complaint by the public servant whose
lawful order has not been complied with. The complaint must be in
writing. The provisions of Section 195 CrPC are mandatory. Non-
compliance with it would vitiate the prosecution and all other
consequential orders. The court cannot assume the cognizance of the
case without such complaint. In the absence of such a complaint, the
trial and conviction will be void ab initio being without
jurisdiction." (Emphasis supplied)
Now coming to the facts of the case, in this case as the undisputed fact
remains that there has not been any complaint filed by any public servant in
terms of Section 195 of the Cr.P.C.. Thus, this Court has no hesitation in
holding that the learned Magistrate has committed a grave illegality in taking
the cognizance of the offence punishable under Section 188 of the Indian Penal
Code more so when there is no allegation regarding the essential ingredients to
constitute the offence punishable under Section 188 of the Indian Penal Code as
has been referred to in the foregoing paragraphs of this judgment; in the case
of Dr. Nishikant Dubey vs. The State of Jharkhand (supra).
15. So far as the offence punishable under Section 269 of the Indian Penal
Code is concerned, the essential ingredients to constitute the said offence are:-
(i) the accused unlawfully or negligently does any act;
(ii) the accused either knows or had reason to believe that such act is likely to
spread the infection of any disease dangerous to life.
16. Now, coming to the facts of the case, undisputedly the petitioner was not
present at the place at the time of the occurrence. The petitioner has been
arrayed as an accused only because he is the one of the Directors of the
company which owns the hotel which was opened in violation of the
prohibitory orders promulgated in connection with COVID-19 pandemic. The
company has not been arrayed as an accused. As there is no material in the
record to suggest that any of the persons who were present at the place of
occurrence, were suffering from any disease infectious or otherwise. There is
no allegation against the petitioner of having committed any act which he
knew or had a reason to believe to be likely to spread infection of any disease
dangerous to life. Under such circumstances, this Court is of the considered
view that the offence punishable under Section 269 of the Indian Penal Code is
also not made out against the petitioner.
17. So far as the offence punishable under Section 270 of the Indian Penal
Code is concerned, the essential ingredients to constitute the said offence are as
under:-
(1) The accused malignantly does an act,
(2) The accused knew or had reason to believe to be likely that such act
will spread the infection of any disease dangerous to life.
18. Now, coming to the facts of the case, there is no allegation against the
petitioner of having done any act malignantly. The expression 'malignantly'
indicates that there ought to be a higher degree of malice or evil, projected or
evident in the act alleged. There is no allegation of any malignant act
committed by the petitioner. In the absence of this essential ingredient to
constitute the offence punishable under Section 270 of the Indian Penal Code,
this Court is of the considered view that even if the entire allegations made
against the petitioner are considered to be true in their entirety; still the offence
punishable under Section 270 of the Indian Penal Code is not made out, against
the petitioner.
19. In view of the discussions made above as none of the offences of which
cognizance has been taken by the learned Chief Judicial Magistrate,
Jamshedpur, is made out against the petitioner, even if the entire allegation
against him are considered to be true, therefore, in the considered opinion of
this Court, continuation of this criminal proceeding, in respect of the petitioner,
will certainly amount to abuse of process of law. Hence, this Court is of the
considered view that this is a fit case where the entire criminal proceeding in
connection with Bistupur P.S. Case No.87 of 2020 corresponding to G.R. No.659
of 2021 which is now pending before the learned Chief Judicial Magistrate,
Jamshedpur, be quashed and set aside qua the petitioner only.
20. Accordingly, the entire criminal proceeding in connection with Bistupur
P.S. Case No.87 of 2020 corresponding to G.R. No.659 of 2021 which is now
pending before the learned Chief Judicial Magistrate, Jamshedpur, is quashed
and set aside qua the petitioner only.
21. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 12th of June, 2024
AFR/ Animesh-Saroj
