Subramanian vs The State Rep.
2022 Latest Caselaw 8470 Mad

Citation : 2022 Latest Caselaw 8470 Mad
Judgement Date : 22 April, 2022

Madras High Court

Subramanian vs The State Rep. on 22 April, 2022

                                                                                  Crl.O.P.No.9059 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 22.04.2022

                                                            CORAM

                         THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                                 Crl.O.P.No.9059 of 2022
                                                           and
                                                 Crl.M.P.No.5266 of 2022

                      Subramanian                                               ... Petitioner

                                                              Vs

                      1.The State rep., by,
                        The Sub-Inspector of Police,
                        Madathukulam Police Station,
                        Tiruppur District.
                        (Crime.No.1297 of 2020)

                      2.Marimuthu.S,
                        Sub-Inspector of Police,
                        Madathukulam Police Station,
                        Tiruppur district.                                      ... Respondents

                      Prayer: Criminal Original Petition is filed under Section 482 of the Criminal
                      Procedure Code, pleased to call for the records in Crime No.1297 of 2020
                      on the file of the first respondent police and quash the same.


                                    For Petitioner      :     Mr.S.Sivakumar
                                    For Respondents     :     Mr.A.Gokulakrishnan
                                                              Additional Public Prosecutor


                      1/8

https://www.mhc.tn.gov.in/judis
                                                                                      Crl.O.P.No.9059 of 2022



                                                             ORDER

This Criminal Original Petition has been filed seeking to call for the

records in Crime No.1297 of 2020 on the file of the first respondent police

and quash the same.

2. The brief facts of the case is that the second respondent has suo

moto registered a case in Crime No.1297 of 2020 against the petitioner and

the members of DMK political parties for the offence punishable under

Section 143, 269 & 271 of I.P.C The allegations in the complaint against

the petitioner is that on 24.10.2020, when the Sub-Inspector of Police,

Madathukulam 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 virus, the petitioner and other accused belong to DMK political

party were found assembled at Madathukulam Bus stand for welcoming

their MLA without getting proper permission from the authorities

concerned. Thereby, the first respondent had registered a case against them.

https://www.mhc.tn.gov.in/judis Crl.O.P.No.9059 of 2022

3. The learned counsel appearing for the petitioner would submit that

the petitioner applied for passport and by the letter for clarification dated

31.03.2021 sent by the Regional Passport Office, the petitioner came to

know about that the case in Crime No.1297 of 2020 is pending against the

petitioner. He would further submit that the first respondent cannot straight

away register a case under Section 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 further

submit that the Government has also issued orders directing withdrawal of

cases registered during Covid-19 pandemic period which was 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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.9059 of 2022

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 during Covid-19

pandemic/lockdown period, along with other accused were assembled in

Madathukulam Bus stand for welcoming their MLA on 24.10.2020, 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 Judgments 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 143 of IPC and to investigate the

same without getting proper permission from the concerned Jurisdictional

https://www.mhc.tn.gov.in/judis Crl.O.P.No.9059 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. In so far, Section 143 of IPC is concerned,

143. Punishment — Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extent to six months, or with fine, or with both.

The expression "unlawful assembly" is defined in Section 141 of IPC

and any member of the said unlawful assembly is punishable under Section

143 of IPC. If the object of the assembly is not unlawful, the Act cannot

attract Section 141 of IPC. Thereby any person forming such assembly

cannot neither be convicted under Section 143 of IPC nor can be convicted

either under Section 147 or Section 149 of IPC.

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 respondents that at the time of the incident,

the petitioner was affected by Covid-19. So, the contention that coming out

https://www.mhc.tn.gov.in/judis Crl.O.P.No.9059 of 2022

during pandemic period will spread the disease is without any basis.

11. Section 269 of IPC defines negligent act to spread infection 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."

12. In this case other than gathering to welcome their MLA, the

petitioner has not indulged in any act of violence.

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

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

https://www.mhc.tn.gov.in/judis Crl.O.P.No.9059 of 2022

cases, which have been registered during the pandemic period against the

general public.

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