Jharkhand High Court
Deepak Prakash vs The State Of Jharkhand on 2 January, 2025
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.923 of 2023
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Deepak Prakash, aged about 62 years, son of Late Bipin Bihari
Prasad, Resident of A-39, Harmu Housing Colony, P.O. - Doranda,
P.S. - Argora, District- Ranchi (Jharkhand) ... Petitioner
Versus
1. The State of Jharkhand
2. The Circle Inspector-cum-Magistrate, Kanke Circle, P.O. & P.S.-
Kanke, District- Ranchi.
3. The Senior Superintendent of Police, Ranchi, P.O.- G.P.O., P.S.-
Kotwali, District- Ranchi ... Respondents
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For the Petitioner : Mr. Rahul Kumar, Advocate
Ms. Richa Lal, Advocate
For the State : Mr. Ashutosh Anand, AAG III
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Writ Petition (Cr.) under Article 226 of the Constitution of India has
been filed with a prayer for issuance of an appropriate writ (s)/order
(s)/direction (s) for quashing the entire criminal proceeding including the First
Information Report being Kanke P.S. Case No.141 of 2021 corresponding to
G.R. No.43 of 2022 and also the order taking cognizance dated 05.01.2022 in
connection with the said case, in which after submission of the charge-sheet,
the learned Judicial Magistrate-XII, Ranchi has taken cognizance of the offences
punishable under Sections 188, 269, 270 of the Indian Penal Code, 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 Judicial Magistrate-
XII, Ranchi.
3. The brief fact of the case is that on 18.06.2021, the petitioner being the
State President of Bhartiya Janta Party and an Hon'ble Member of the Rajya
Sabha, was leading an agitation opposing the farmers along with the co-
accused Member of Legislative Assembly of Kanke Legislative Assembly
Constituency, in presence of 75-80 persons, who took part in the protest. They
did not maintain the social distance and some persons were not putting on the
mask. As the possibility of spread of CORONA Epidemic could not be ruled
out by such acts of the petitioner, hence, the Circle Officer-cum-Magistrate,
Kanke Circle, Ranchi submitted a written-report to the Officer-In-Charge of
Kanke Police Station and basing upon the same, Kanke P.S. Case No.141 of
2021 was registered. Police took up investigation of the case and after
completion of the investigation, police submitted charge-sheet inter alia against
the petitioner for having committed the offences punishable under Sections
188, 269, 270 of the Indian Penal Code, Section 51 of the Disaster Management
Act, 2005 and Section 3 of Epidemic Diseases Act, 1897. Consequent upon the
same, the learned Judicial Magistrate, Ranchi has taken cognizance of the said
offences.
4. Learned counsel for the petitioner relies upon the judgment of this Court
in the case of Rajeev Singh Dugal @ Rajeev Duggal passed in Cr.M.P.
No.2313 of 2022 and submits that this Court in that case relied 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 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 obstructed any officer or
employee of the Central Government or the State Government or any person
authorized by the National Authority or State Authority or District Authority
in discharge of his concerned authority under the Disaster Management Act,
2005 nor there is any 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 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 of having indulged 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. It is
then submitted that as there is no allegation in respect of the essential
ingredients to constitute the offence punishable under Section 188 of the Indian
Penal Code, against the petitioner, hence, the offence punishable under Section
188 of the Indian Penal Code is not made out against the petitioner because of
lack of essential ingredients of the said office as well as, as no complaint
envisaged under Section 195 of the Code of Criminal Procedure having been
filed; in writing by the public servant concerned.
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 knew or had reason to
believe that any act of him was likely to spread the infection of any disease
dangerous to life and in the absence of any allegation regarding the same,
neither the offence punishable under Section 269 nor the offence punishable
under Section 270 of the Indian Penal Code is made out against the petitioner.
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 person present in
the alleged place of occurrence, was suffering from any infectious disease or
the petitioner 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 are considered to be true in their
entirety. It is lastly submitted by the learned counsel for the petitioner, that the
entire criminal proceeding including the First Information Report being Kanke
P.S. Case No.141 of 2021 corresponding to G.R. No.43 of 2022 and also the
order taking cognizance dated 05.01.2022 in connection with the said case
which is now pending before the learned Judicial Magistrate-XII, Ranchi, be
quashed and set aside.
10. Learned AAG III appearing for the State vehemently opposes the prayer
of the petitioner to quash and set aside the entire criminal proceeding including
the First Information Report being Kanke P.S. Case No.141 of 2021
corresponding to G.R. No.43 of 2022 and also the order taking cognizance
dated 05.01.2022 in connection with the said case which is now pending before
the learned Judicial Magistrate-XII, Ranchi and further submits that the
undisputed fact is that at the relevant time there were orders promulgated by
the competent authority of the State of Jharkhand for not assembling in large
numbers at public places and to maintain social distance in public gathering in
order to arrest the spread of COVID-19 pandemic and the petitioner being a
State President of a recognized political party, was expected to be well aware
about such prohibitory orders of the competent officer of the Government.
Hence, the conduct of the petitioner in unlawfully congregating 75-80 persons
in violation of such prohibitory order to maintain social distance and such
congregation of large number of people 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 W.P.
(Cr.), 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 of the Disaster
Management Act, 2005 is concerned, there is no allegation against the
petitioner of obstructing to any officer or employee of the Central Government
or the State Government or any person authorized by the National Authority
or State Authority or District Authority in discharge of his concerned duty
under the provisions of the Disaster Management Act, 2005 nor is there any
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 which 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 in the court concerned by the authority/person mentioned in
Disaster Management Act, 2005, rather an F.I.R. has been lodged; so for both
these reasons, the cognizance of the offence punishable under Section 51 of the
Disaster Management Act, 2005 taken by the learned Judicial Magistrate-XII,
Ranchi, firstly because of the same being taken on the basis of the 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 which
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.]"
Envisages 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; i.e., when by
violence against a Health Care Service Personnel, grievous hurt is also caused
to such victim. 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 F.I.R, 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 of 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. Therefore, the non-compliance of
the same will lead to illegality. 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)
15. 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 Judicial Magistrate-XII, Ranchi 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).
16. 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.
17. Now, coming to the facts of the case, there is no allegation against the
petitioner that the petitioner knew or had reason to believe that the alleged act
committed by him, is likely to spread infection of any disease which is
dangerous to life. Even in the F.I.R., there is no such allegation. The only
allegation is that by the acts of the petitioner, the possibility of the spread of
infectious diseases, cannot be ruled out. There is absolutely no allegation that
such act will spread the infection of any disease dangerous to life. There is no
allegation that any person suffering from any infectious diseases was present at
the place of occurrence at the time of occurrence nor during the investigation of
the case it could be found out that because of the acts committed by the
petitioner there was spread of any infection of any diseases dangerous to life
after the alleged offence committed by the petitioner. Under such
circumstances, 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 269 of the Indian Penal Code
is also not made out against the petitioner.
18. 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 any 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.
19. 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 also not made out,
against the petitioner.
20. In view of the discussions made above as none of the offences of which
cognizance has been taken by the learned Judicial Magistrate-XII, Ranchi, is
made out against the petitioner, even if the entire allegations 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
including the First Information Report being Kanke P.S. Case No.141 of 2021
corresponding to G.R. No.43 of 2022 and also the order taking cognizance
dated 05.01.2022 in connection with the said case which is now pending before
the learned Judicial Magistrate-XII, Ranchi, be quashed and set aside qua the
petitioner only.
21. Accordingly, the entire criminal proceeding including the First
Information Report being Kanke P.S. Case No.141 of 2021 corresponding to
G.R. No.43 of 2022 and also the order taking cognizance dated 05.01.2022 in
connection with the said case which is now pending before the learned Judicial
Magistrate-XII, Ranchi, is quashed and set aside qua the petitioner only.
22. Accordingly, this W.P. (Cr.), stands disposed of.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 02nd of January, 2025
AFR/ Animesh
