Madras High Court
S.Balamurugan vs The State Represented By on 20 April, 2022
Crl.O.P.No.8925 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.8925 of 2022
S.Balamurugan,
S/o.Selvam ... Petitioner
Vs
The State Represented by,
The Sub-Inspector of Police,
Cuddalore OT Police Station,
Cuddalore District.
(Crime No.270 of 2021) ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of the Criminal
Procedure Code, to call for the records of the proceedings in Crime No.270
of 2021 on the file of the Cuddalore OT Police Station, Cuddalore District,
and quash the same.
For Petitioner : Mr.D.Saravanan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/8
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Crl.O.P.No.8925 of 2022
ORDER
This Criminal Original Petition has been filed, to call for records in
Crime No.229 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.270 of 2021 against the petitioner for the
offence punishable under Sections 188 and 270 of IPC. The allegation in
the complaint against the petitioner is that on 15.05.2021, when the
Sub-Inspector of Police, Cuddalore OT Police Station, Cuddalore,
accompanied with two other policemen were on 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
roaming near Cuddalore OT Manikoondu 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.270 of
2021 was registered for the offence punishable under Sections 188 and 270
of IPC.
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Crl.O.P.No.8925 of 2022
3. The learned counsel appearing for the petitioner would submit that
the petitioner had come out of his house for purchase of 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 registered the case under Sections 188 and 270 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 Government has also issued orders directing the withdrawal
of cases registered during Covid-19 pandemic period and the withdrawal
cases have registered for violation of Covid-19 pandemic rules.
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
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
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Crl.O.P.No.8925 of 2022
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 loitering in his two
wheeler 15.05.2021 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
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
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Crl.O.P.No.8925 of 2022
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.
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
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Crl.O.P.No.8925 of 2022
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:-
"270. Malignant Act likely to spread infection of disease
dangerous to life -
Whoever malignantly does any act which is, and which
he knows or has reason the 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
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
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Crl.O.P.No.8925 of 2022
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.270 of 2021
dated 15.05.2021 on the file of the respondent is nothing but abuse of
process of law and is hereby quashed. This Criminal Original Petition
stands allowed.
20.04.2022
Internet :Yes/No
Index : Yes/No
Speaking/Non-Speaking order
rgm/arb
To
1.The Sub-Inspector of Police,
Cuddalore OT Police Station,
Cuddalore District.
2.The Public Prosecutor,
High Court of Madras.
A.D.JAGADISH CHANDIRA.J,
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.8925 of 2022
rgm/arb
Crl.O.P.No.8925 of 2022
20.04.2022
https://www.mhc.tn.gov.in/judis
