Kerala High Court
Zainudheen P.M vs The State Of Kerala on 19 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942
Crl.MC.No.4580 OF 2020(B)
AGAINST THE ORDER/JUDGMENT IN CC 612/2020 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,HOSDURG
CRIME NO.195/2018 OF RAJAPURAM POLICE STATION, KASARAGOD
PETITIONERS/ACCUSED:
1 ZAINUDHEEN P.M, AGED 36 YEARS
S/O.MUHAMMED, RESIDING AT PUNACHAKARA HOUSE, KALLAR
VILLAGE, RAJAPURAM (P.O), KASARAGOD DISTRICT.
2 FATHIMA SAUDA,
AGED 30 YEARS
W/O.ZAINUDHEEN P.M., ACHALAMKARY HOUSE, BHAGAMANDALA,
KODUGU DISTRICT, KARNATAKA STATE.
BY ADVS.
SHRI.JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.JAISON ANTONY
RESPONDENT/COMPLAINANT (STATE):
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
19.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No.4580 OF 2020(B) 2
ORDER
Aggrieved by the registration of crime for the
offence under Clauses 6, 4(2)(c) and 5 of the
Kerala Epidemic and Diseases Ordinance, 2020 and
Section 118(e) of Kerala Police Act, 2011, the
accused came up.
2. In order to attract Section 118(e) of the
Kerala Police Act, 2011, there should be some act
causing danger to the public or failure to public
safety. Annexure A4 certificate would show that
they were not having symptoms of any disease. As
such, prima facie, it appears that Section 118(e)
of the Kerala Police Act will not stand attracted.
Division Bench of this court had already laid down
the legal position pertaining to the application of
Section 118(e) in Santhosh M.J. v. State of Kerala
[2018 (2) KHC 360] in the following lines:
"13. In the case on hand, unless the 'act'
of accused causes danger to public or failure
in public safety, the penal provision under
S.118(e) will not be attracted. The "act"
which is contemplated by the prosecution is
using of a mobile phone while driving a vehicle
and thereafter assuming that it may cause
danger to public or failure in public safety.
In the absence of any statutory provision which
prevents use of a mobile phone while driving a
motor vehicle, it may not be possible to infer
that danger will be caused in the process."
3. Clause 4(2)(c) of the Kerala Epidemic and
Disease Ordinance, 2020 is not a penal provision,
but enables the State Government to have its own
delegated legislation in the matter. Annexure A6
and A7 are the two ordinances promulgated on
29.03.2020 and 02/07/2020 respectively. Annexure
A8 is the Ordinance issued by the Central
Government.
4. Clause 4(2)(c) deals with the right of
Government to regulate state borders for such
period as may be deemed necessary, for which
Annexure A6 regulation was issued on 29/03/2020,
wherein no provision was incorporated regulating or
sealing any state borders except Clause 2(4)
regulating entry of person from Covid affected
countries. A subsequent regulation was also issued
by the State Government (Annexure A7) on
02/07/2020. But the alleged incident took place
prior to the issuance of Annexure A7 regulation,
that is on 01/06/2020.
5. Clause 6 of Annexure A8 notification of the
Central Government is extracted below for
reference:
(i) There shall be no restriction on inter-
State and intra-State movement of persons and
goods. No separate permission/approval/e-permit
will be required for such movements.
(ii) However, if a State/UT, based on
reasons of public health and its assessment of
the situation, proposes to regulate movement of
persons, it will give wide publicity in advance
regarding the restrictions to be placed on such
movement, and the related procedures to be
followed.
(iii) Movement by passenger trains and
Shramik special trains; domestic passenger air
travel; movement of Indian Nationals stranded
outside the country and of specified persons to
travel abroad; evacuation of foreign nationals;
and sign-on and sign-off of Indian seafarers
will continue to be regulated as per SOPs
issued.
(iv) No State/UT shall stop the movement of
any type of goods/cargo for cross land-border
trade under Treaties with neighbouring
countries.
6. Clause 6(1) says that there shall not be any
restriction on the inter-State and intra-State
movement of persons and goods, for which no
separate permission is necessary. Even going by
Clause 6(1)(2) of Annexure A8, it is clear that no
restriction was imposed regarding inter-State and
intra-State movement of persons and goods till
01/06/2020, the date of alleged incident except
Annexure A6, wherein no provision was made
regulating, restricting inter-State movement of
persons and goods. Hence the entire proceedings
and the crime registered are hereby quashed.
Crl.M.C. is allowed accordingly.
Sd/-
P.SOMARAJAN
JUDGE
msp
APPENDIX
PETITIONER'S/S ANNEXURES:
ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME
NO.195/2018 OF RAJAPURAM POLICE STATION.
ANNEXURE A2 CERTIFIED COPY OF THE CHARGE SHEET IN
C.C.NO.612/2020 ON THE FILES OF JUDICIAL
FIRST-CLASS JUDICIAL MAGISTRATE COURT-I,
HOSDURG.
ANNEXURE A3 CERTIFIED COPY OF THE MEMO OF EVIDENCE.
ANNEXURE A4 TRUE COPY OF THE MEDICAL CERTIFICATES
ISSUED BY THE MEDICAL OFFICER, TO THE
PETITIONERS AND THEIR CHILDREN, AFTER
UNDERGONE THE QUARANTINE.
ANNEXURE A5 TRUE COPY OF THE KERALA EPIDEMIC DISEASES
ORDINANCE, 2020.
ANNEXURE A6 TRUE COPY OF THE NOTIFICATION DATED
29.03.2020 BEARING NUMBER G.O(P)
16/2020/H&FWD.
ANNEXURE A7 TRUE COPY OF THE NOTIFICATION DATED
02.07.2020 BEARING NUMBER G.O(P)
35/2020/H&FWD.
ANNEXURE A8 TRUE COPY OF THE ORDER DATED 30.05.2020
BEARING NUMBER 40-3/2020-D.M-I(A) ISSUED BY
THE MINISTRY OF HOME AFFAIRS, GOVERNMENT OF
INDIA.
RESPONDENTS ANNEXURES:NIL
//TRUE COPY//
P.A. TO JUDGE
