Madras High Court
Mohammed Harish vs The State Of Tamil Nadu on 7 October, 2021
Crl.O.P.(MD)No.13878 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.10.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No. 13878 of 2021
Mohammed Harish ... Petitioner/Sole Accused
Vs.
1.The State of Tamil Nadu,
Rep by the Inspector of Police,
Melur Police Station,
Madurai District.
In Crime No.315 of 2020 ... 1st Respondent/Complainant
2.C.Balamurugan ... 2nd Respondent/Defacto Complainant
Prayer:Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records relating to the impugned FIR in Crime No.315 of 2020 on
the file of the first respondent and quash the same as illegal.
For Petitioner : Mr.A.Mohan
For R1 : Mr.K.Sanjai Gandhi
Government Advocate (Crl.Side)
ORDER
This Criminal Original Petition has been filed to quash the FIR in
Crime No.315 of 2020 on the file of the first respondent.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.13878 of 2021
2. The case of the prosecution is that on 10.04.2020, the petitioner
violated 144 curfew imposed by the government by roaming near
Alagarkovil-Melur Road, Madurai District, without proper reason. Since
curfew was in force, a case has been registered in Cri.No.315 of 2020 for
the offence punishable under Sections 188 & 269 of IPC.
3. Seeking quashment of the First Information Report, this petition is
filed, mainly on the ground that none of the allegations mentioned in the
First Information Report, attract any of the offences against this petitioner.
4. Heard both sides.
5.According to the learned counsel for the petitioner, on 10.04.2020,
he went out of the house only for the purpose of purchasing medical
supplies from the nearby pharmacy. Except that, no purpose to him for
roaming around the place. But, without proper enquiry, the respondent
police registered a case in Crime No.315 of 2020 as if without wearing face
masks, the petitioner was roaming in the road at the time of prohibition due
to Covid-19. But, no prima facie case has been made out in the FIR.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.13878 of 2021
6. The common and judicial notice has also been taken into account
that due to the pandemic situation, on 20.04.2020, throughout the
Tamilnadu, curfew has been imposed, under Section 144 Cr.P.C for the
purpose of controlling the spread of Covid – 19 virus. At that time, this
petitioner was found defying the curfew near Alagarkovil-Melur Road,
Madurai District. No doubt that the petitioner is defying the curfew imposed
by the government.
7. But, however, it is seen that the offence under Section 188 IPC is
non cognizable offence. In respect of which, First Information Report has
been filed by the police and this position has been settled by this Court in
the judgment reported in 2018 2 LW (crl) 606 Jeevanandham and other
Vs. Inspector of Police, Sivakasi Town Police Station, Virudhunagar
District], dated 20.09.2018. So, Section 188 IPC cannot be made applicable,
since police has no power to register the case under Section188 IPC.
8. Next allegation is that he was roaming around the area, which leads
to spread the disease. But that cannot be considered that he caused spread of
the disease. So, the casual outings, cannot be construed an offence under
Section 269 IPC.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.13878 of 2021
9. Moreover, it is seen that he is only aged about 19 years at the time
of occurrence. So, probably it can be taken only casual outing. So, the
casual outing, cannot be construed as offence. It is a trivial offence. By
which, no damage was done. The Police Officer would have warned him to
go home. Without doing this, he registered a case against him.
10.It is further seen that the petitioner has applied for passport and
verification has also been made and during the course of verification, it was
found that the petitioner was involved in this offence. So, as mentioned
earlier, it is trivial offence and it is not affected the future career of the
petitioner. It is seen that for the purpose of purchasing medicines, he has
gone to the medical shop. So, absolutely, there is no intention, on the part of
the petitioner to roam around that area, without any purpose.
11. Moreover, it can also be taken judicial notice that the case filed
during the pandemic period against public is going to be dropped by the
government. So, considering this fact also, nothing is going to be served by
prosecuting the case in Crime No.315 of 2020, against the petitioner.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.13878 of 2021
12. Taking totality of the circumstance, the FIR in Crime No.315 of
2020, on the file of the first respondent police is required to be quashed and
accordingly, the same is quashed and the Criminal Original Petition is
allowed.
07.10.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is presented is
the correct copy, shall be the responsibility of the advocate/litigant
concerned.
To
1. The Inspector of Police,
Melur Police Station,
Madurai District.
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No.13878 of 2021
G.ILANGOVAN,J.,
dss
Crl.O.P.(MD)No. 13878 of 2021
07.10.2021
https://www.mhc.tn.gov.in/judis
