Madras High Court
A.Danielwillson vs State Represented By on 5 April, 2022
Crl.O.P.No.7703 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.7703 of 2022
and
Crl.M.P.No.4424 of 2022
A.Danielwillson ... Petitioner
Vs
State Represented by
The Sub Inspector of Police,
Tiruvarur Taluk,
Tiruvarur.
(Crime No.738 of 2020) ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of the Criminal
Procedure Code, pleased to call for records and quash the proceedings as
against the petitioners in Crime No.738 of 2020, pending on the file of the
respondent.
For Petitioner : Mr.M.Fazil Perarivalan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/8
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Crl.O.P.No.7703 of 2022
ORDER
This Criminal Original Petition has been filed, to call for records in
Crime No.738 of 2020 on the file of the respondent and quash the same.
2. The brief facts of the case is that the respondent has suo motu
registered a case in Crime No.738 of 2020 against the petitioner for the
offence punishable under Sections 336, 270, 188 of IPC read with Section 3
of the Epidemic Diseases Act, 1897, 51(b) of the Disaster Management Act,
2005 & Section 179 of the Motor Vehicles Act, 1988. The allegation in the
complaint against the petitioner is that on 27.04.2020, when the
Sub-Inspector of Police, Thiruvarur Taluk, Thiruvarur accompanied with
two other policemen were on regular patrol duty to see whether anyone was
violating the Section 144 Cr.P.C issued by the Central and State
Government to prevent the spread of the Corona, the petitioner was found
riding in his two wheeler near Pavithiramanikkam Kadai Street, Thiruvarur
and when the respondent had enquired the petitioner, he has not stated any
reasons. Based on the complaint given by the Sub-Inspector of Police, a
case in Crime No.738 of 2020 was registered for the offence punishable
under Sections 336, 270, 188 of IPC read with Section 3 of the Epidemic
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Crl.O.P.No.7703 of 2022
Diseases Act, 1897, 51(b) of the Disaster Management Act, 2005 & Section
179 of the Motor Vehicles Act, 1988.
3. The learned counsel appearing for the petitioner would submit that
the petitioner had come out of his house for medicines during Covid-19
pandemic period, whereas, the respondent has registered the case against
him. He would further submit that the respondent cannot straight away
register the case under Section 188 of IPC and there is no material to show
that the petitioner had intentionally come out to spread infection to others.
4. The learned counsel appearing for the petitioner would further
submit that the petitioner has also applied for passport. The learned counsel
appearing for the petitioner would submit that the Government has also
issued orders directing the withdrawal of cases registered during Covid-19
pandemic period.
5. The learned counsel appearing for the petitioner would further
submit that the facts of the case are similar to the case covered in the
decision reported in 2018 2 LW (Crl) 606 [Jeevanandham and others Vs
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Crl.O.P.No.7703 of 2022
The Inspector of Police Velayuthampalayam Police Station, Karur
District] dated 20.09.2018 and in Sri Raja Vs Inspector of Police,
Sivakasi Town Police Station Virudhunagar District and other in
Crl.O.P(MD).No.7922 of 2019 etc batch dated 30.08.2019.
6. The learned Additional Public Prosecutor appearing for the
respondent would submit that the petitioner was found riding his two
wheeler on 27.04.2020 during Covid-19 pandemic/lockdown period, in
defiance the Standard Operating Procedure (SOP) issued by the Central and
State Government. He would further submit that the facts of this case are
covered under the Judgment referred to above.
7. Heard both sides and perused the materials available on record.
8. In the Judgment reported in 2018 2 LW (Crl) 606 [Jeevanandham
and others Vs The Inspector of Police Velayuthampalayam Police
Station, Karur District] dated 20.09.2018, it has been held that the police
has no right to file a case under Section 188 of IPC and to investigate the
same without getting proper permission from the concerned Jurisdictional
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Crl.O.P.No.7703 of 2022
Magistrate. Here, there is no material to show that before registering the
case, permission of the concerned jurisdictional Magistrate has been
obtained. In such circumstances, the respondent has no right to register the
case and to investigate the matter.
9. Further, there is no material to prove that the petitioner had
knowingly attempted to spread infection of any disease dangerous to life
and it is also not the case of the respondent that at the time of the incident,
the petitioner was affected by Covid-19. So, the contention that coming out
during pandemic period will spread the disease is without any basis.
10. Section 188 of IPC defines disobedience to order duly
promulgated by public servant to spread infection 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.
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Crl.O.P.No.7703 of 2022
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."
11. Section 270 of IPC defines Malignant act likely to spread
infection of disease dangerous to life as under:-
"Whoever malignantly does any act which is, and which
he knows or has reason to believe to be, likely to spread the
infection of any disease dangerous to life, shall be punished
with imprisonment of either description for a term which may
extend to two years, or with fine, or with both."
12. Considering the nature of allegations and the offence involved in
this case, this Court is of the opinion that coming out of the house during
pandemic period should not held to be a reason for spoiling the future of the
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Crl.O.P.No.7703 of 2022
petitioner. Unintended casual act, without any act of violence, should not
take away the future of the petitioner. Moreover, it is also brought to the
notice of this Court that the Government is also going to drop all these
cases, which have been registered during the pandemic period against the
public.
13. Taking all these aspects into account, this Court is of the
considered view that the proceedings pending in Crime No.738 of 2020
dated 27.04.2020 on the file of the respondent is nothing but abuse of
process of law and is hereby quashed. This Criminal Original Petition
stands allowed. Consequently, connected miscellaneous petition is closed.
05.04.2022
Internet:Yes
Index : Yes/No
Speaking/Non-Speaking order
nti
To
1.The Sub Inspector of Police,
Thiruvarur Taluk,
Tiruvarur.
2.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.7703 of 2022
A.D.JAGADISH CHANDIRA.J,
nti
Crl.O.P.No.7703 of 2022
05.04.2022
https://www.mhc.tn.gov.in/judis
