Madras High Court

Subash Chanthira Bose vs The State Represented By on 20 April, 2022

                                                                                  Crl.O.P.No.8803 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.8803 of 2022
                                                           and
                                                 Crl.M.P.No.5128 of 2022

                      Subash Chanthira Bose,
                      S/o.Dhatchinamoorthy                                      ... Petitioner

                                                              Vs

                      The State Represented by,
                      The Inspector of Police,
                      Srimushnam Police Station,
                      Cuddalore District.
                      (Crime.No.189 of 2021)                                    ... Respondent

                      Prayer: Criminal Original Petition is filed under Section 482 of the Criminal
                      Procedure Code, pleased to call for the records relating the FIR in Crime
                      No.189 of 2021 on the file of the respondent and quash the same.

                                    For Petitioner      :     Mr.T.Muruganatham

                                    For Respondent      :     Mr.A.Gokulakrishnan
                                                              Additional Public Prosecutor




                      1/10

https://www.mhc.tn.gov.in/judis
                                                                                       Crl.O.P.No.8803 of 2022



                                                            ORDER

This Criminal Original Petition has been filed, to call for the records

relating the FIR in Crime No.189 of 2021 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.189 of 2021 against the petitioner for the

offence punishable under Sections 188 and 269 of IPC. The allegation in

the complaint against the petitioner is that on 25.05.2021, when the

Sub-Inspector of Police, Srimushnam Police Station, 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 in his

two wheeler in front of Srimushnam Theradi Veedhi 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.189 of 2021 was registered for the offence punishable under

Sections 188 and 269 of IPC.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 of 2022

3. The learned counsel 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 had registered a case

against him. He would further submit that the respondent cannot straight

away registered the case under Sections 188 and 269 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 submit that

the petitioner has completed his graduation in B.E and had applied for

passport seeking job in abroad. When the case is pending, it came to notice

of this Court that because of the pendency of the case, enquiry of the

Passport Officer is kept pending. He 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 of 2022

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

Crl.O.P(MD).No.7922 of 2019 etc batch dated 30.08.2019.

6. The learned counsel for the petitioners would further submit that in

a similar circumstances, the Madurai Bench of this Court had allowed the

petitions and quashed the proceedings in the following cases:-

(i) C.Manikandan Vs The Sub-Inspector of Police, Thoothukudi District made in Crl.O.P(MD).No.9150 of 2021 dated 12.07.2021.

(ii) Prakash Vs The Inspector of Police, Madurai and another made in Crl.O.P(MD).No.8657 of 2021 dated 13.07.2021.

(iii) Astile Sebas Vs The Sub Inspector of Police, Kanyakumari District and another made in Crl.O.P(MD).No.4819 of 2021 dated 19.07.2021.

(iv) S.Rajendran Vs The Inspector of Police, Madurai District and another made in Crl.O.P(MD).No.9724 of 2021 dated 22.07.2021.

(v) Vijaya Vs The Inspector of Police, Madurai District and another made in Crl.O.P(MD).No.10172 of 2021 dated 29.07.2021.

(vi) Rajan Vs The Sub Inspector of Police, Tirunelveli District made in Crl.O.P(MD).No.10926 of 2021 dated 09.08.2021.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 of 2022

(vii) Ranjith Vs The Inspector of Police, Madurai and another made

in Crl.O.P(MD).No.11003 of 2021 dated 10.08.2021.

7. The learned Additional Public Prosecutor appearing for the

respondent would submit that the petitioner was found loitering in his two

wheeler on 25.05.2021 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.

8. Heard both sides and perused the materials available on record.

9. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 of 2022

obtained. In such circumstances, the respondent has no right to register the

case and to investigate the matter.

10. 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.

11. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 of 2022

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."

12. Section 269 of IPC defines negligent act likely to spread infection

of disease dangerous to life as under:-

"269. Negligent act likely to spread infection of disease dangerous to life:

Whoever unlawfully or negligently 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 six months, or with fine, or with both."

13. 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.8803 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.

14. Taking all these aspects into account, this Court is of the

considered view that the proceedings pending in Crime No.189 of 2021

dated 25.05.2021 on the file of the respondent is nothing but abuse of