Madras High Court
Tamilmaran vs The State Represented By on 28 April, 2022
Crl.O.P.No.9386 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.9386 of 2022
and Crl.M.P.No.5471 of 2022
Tamilmaran ... Petitioner
Vs
The State Represented by,
The Inspector of Police,
Veppur Police Station,
Cuddalore District.
(Suo Moto Crime No.1238 of 2020) ... Respondent
PRAYER: This Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, pleased to call for the records in Crime No.1238 of
2020 on the file of the Inspector of Police, Veppur Police Station, Cuddalore
District and quash the proceedings in so far as it relates to the petitioner herein.
For Petitioner : Mr.S.Chandrasekaran
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/14
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.9386 of 2022
ORDER
This Criminal Original Petition has been filed seeking to call for the
records in Crime No.1238 of 2020 on the file of the Inspector of Police, Veppur
Police Station, Cuddalore District and quash the proceedings in so far as it
relates to the petitioner herein.
2. The case of the prosecution is that on 14.08.2020, at about 03.15
p.m., when the respondent police were on patrol duty to monitor the adherence
of 144 Cr.P.C., order imposed by the Government in order to control and
prevent the Corona Virus, the petitioner was riding a two wheeler without
wearing mask. Thereby, the respondent police had registered a suo moto case in
Crime No. 1238 of 2020 against the petitioner for the offences under Sections
188 and 270 of IPC. The said criminal proceedings is under challenge in this
criminal original petition.
3. The learned counsel appearing for the petitioners would submit
that the petitioner is innocent. According to Section 195(1)(a) of Cr.P.C., no
Court can take cognizance of an offence under Section 188 of IPC, unless the
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Crl.O.P.No.9386 of 2022
public servant has a written order from the authority. He would further submit
that the petitioner had never involved in any unlawful activity and there is no
evidence that the petitioner restrained anybody and the respondent had
registered the case under Sections 188 and 270 of IPC., as against the
petitioner. Therefore, he sought for quashing the proceedings.
4. The learned counsel for the petitioner would further submit that
there was absolutely no violence and that there was no intention on the part of
the petitioner to spread infection of disease dangerous to life. There is
absolutely no material to show that the petitioner was infected with any disease
dangerous to life. Thereby, the proceedings against the petitioner is nothing but
abuse of process of law.
5. The learned counsel for the petitioner would also 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
the case of Sri Raja Vs Inspector of Police, Sivakasi Town Police Station
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Crl.O.P.No.9386 of 2022
Virudhunagar District and other in Crl.O.P(MD).No.7922 of 2019 etc batch
dated 30.08.2019. He would further submit that though the incident was
happened during the Covid-19 pandemic period, there is no material to show
that neither the petitioner was affected by Covid-19 nor he indulged in any
Malignant Act likely to spread infection of disease dangerous to life.
6. The learned counsel for the petitioner would further submit that
under similar circumstances in the case of Prakash Vs. The Inspector of
Police, Samayanallur Police Station and other in Crl.O.P.(MD).No.8657 of
2021, this Court finding that it is trivial in nature and that the petitioners have
not intentionally done any Act to spread the disease, has quashed the
proceedings. He would also submit that in similar matters, the Government has
also proposed to drop the proceedings, which have been registered during the
pandemic period against the public.
7. The learned counsel for the petitioner would submit that in a
similar circumstances, the Madurai Bench of this Court had allowed the
petitions and quashed the proceedings in the following cases:-
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Crl.O.P.No.9386 of 2022
(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.
(vii) Ranjith Vs The Inspector of Police, Madurai and another
made in Crl.O.P(MD).No.11003 of 2021 dated 10.08.2021.
8. The learned Additional Public Prosecutor for the respondent would
submit that the petitioner during the Covid-19 pandemic period had breached
the Covid-19 pandemic protocol and attempted to spread infection to others.
However, he would fairly concede that there was no violence.
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Crl.O.P.No.9386 of 2022
9. He would further submit that Section 188 of IPC is a cognizable
offence and therefore it is the duty of the police to register a case. Though
there is a bar under Section 195(1) (a) of Cr.P.C. to take cognizance for the
offence under Section 188 of IPC, it does not mean that the police cannot
register FIR and investigate the case. Therefore, he vehemently opposed the
quash petition and prayed for dismissal of the same.
10. Heard the learned counsel and perused the materials available on
record.
11. The offence under Sections 188 and 270 of IPC are concerned, as
per the contents of the First Information Report, it is seen that the petitioner
was riding a two wheeler without wearing mask during the pandemic period. It
is a trivial matter in which no offence of grievous nature is involved. Even
though Section 144 Cr.P.C order was in force, during the relevant time the
respondent police ought to have warned the petitioner to go in-door, instead of
that, they filed a case. It is also not the case of the respondent that at the time
of the incident, the petitioner was affected by Covid-19 virus.
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Crl.O.P.No.9386 of 2022
12. 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 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."
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Crl.O.P.No.9386 of 2022
13. 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."
14. The only question for consideration is that whether the
registration of case under Sections 188 and 270 of IPC., registered by the
respondent is permissible under law or not? In this regard it is relevant to
extract Section 195(1)(a) of the Criminal Procedure Code, 1973:-
“195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and for
offences relating to documents given in evidence. (1) No
Courts hall take cognizance-
(a) (i) of any offence punishable under sections
172 to 188 (both inclusive)of the Indian Penal Code (45
of 1860), or
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Crl.O.P.No.9386 of 2022
(ii) of any abetment of, attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit, such
offence, except on the complaint in writing of the public
servant concerned or of some other public servant to
whom he is administratively subordinate;...”
Therefore, it is very clear that for taking cognizance of the offences
under Section 188 of IPC, the public servant should lodge a complaint in
writing and other than that no Court has power to take cognizance.
15. The learned counsel for the petitioner, in support of his
contentions, relied upon a judgement in a batch of quash petitions, reported in
2018 2 L.W (Crl) 606 in Crl.O.P(MD).No.1356 of 2018, dated 20.09.2018 in
the case of Jeevanandham and others Vs State represented by the Inspector
of Police, Velayuthampalayam Police Station, Karur District, and this Court
held in Paragraph-25, as follows :-
"25. In view of the discussions, the following
guidelines are issued insofar as an offence under Section
188 of IPC, is concerned:
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Crl.O.P.No.9386 of 2022
a) A Police Officer cannot register an FIR for any of
the offences falling under Section 172 to 188 of IPC.
b) A Police Officer by virtue of the powers conferred
under Section 41 of Cr.P.C will have the authority to
take action under Section 41 of Cr.P.C., when a
cognizable offence under Section 188 IPC is committed
in his presence or where such action is required, to
prevent such person from committing an offence under
Section 188 of IPC.
c) The role of the Police Officer will be confined
only to the preventive action as stipulated under Section
41 of Cr.P.C and immediately thereafter, he has to
inform about the same to the public servant
concerned/authorised, to enable such public servant to
give a complaint in writing before the jurisdictional
Magistrate, who shall take cognizance of such complaint
on being prima facie satisfied with the requirements of
Section 188 of IPC.
d) In order to attract the provisions of Section 188
of IPC, the written complaint of the public servant
concerned should reflect the following ingredients
namely;
i) that there must be an order promulgated by
the public servant;
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Crl.O.P.No.9386 of 2022
ii) that such public servant is lawfully
empowered to promulgate it;
iii) that the person with knowledge of such
order and being directed by such order to abstain from
doing certain act or to take certain order with certain
property in his possession and under his management,
has disobeyed;
and
iv)that such disobedience causes or tends to cause;
(a) obstruction,annoyance or risk of it to any
person lawfully employed; or
(b) danger to human life, health or safety; or
(c) a riot or affray.
e) The promulgation issued under Section 30(2) of
the Police Act, 1861, must satisfy the test of
reasonableness and can only be in the nature of a
regulatory power and not a blanket power to trifle any
democratic dissent of the citizens by the Police.
f) The promulgation through which, the order is
made known must be by something done openly and in
public and private information will not be a
promulgation. The order must be notified or published
by beat of drum or in a Gazette or published in a
newspaper with a wide circulation.
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Crl.O.P.No.9386 of 2022
g) No Judicial Magistrate should take cognizance
of a Final Report when it reflects an offence under
Section 172 to 188 of IPC. An FIR or a Final Report
will not become void ab initio insofar as offences other
than Section 172 to 188 of IPC and a Final Report can
be taken cognizance by the Magistrate insofar as
offences not covered under Section 195(1)(a)(i) of
Cr.P.C.
h) The Director General of Police, Chennai and
Inspector General of the various Zones are directed to
immediately formulate a process by specifically
empowering public servants dealing with for an offence
under Section 188 of IPC to ensure that there is no delay
in filing a written complaint by the public servants
concerned under Section 195(1)(a)(i) of Cr.P.C."
16. The learned counsel for the petitioner also relied upon the similar
facts of the case covered under recent Judgment of this Court in the case of 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 reported in (2019) 4 MLJ (Crl) 175.
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Crl.O.P.No.9386 of 2022
17. In the light of the above definition, for attracting offences under
Sections 188 and 270 IPC also, there are no materials to show that the
petitioner was affected by Covid-19 virus and the virus spread to others. Since
in the absence of any such materials on record, the offence under Sections 188
and 270 IPC are not attracted.
18. In the case on hand, the First Information Report has been
registered by the respondent for the offences under Sections 188 and 270 of
IPC. He is not a competent person to register FIR for the offences under
Section 188 of IPC. As such, the First Information Report or Final Report is
liable to be quashed for the offences under Section 188 of IPC.
19. Taking all these aspects into account, this Court is of the
considered view that the proceedings in Crime No.1238 of 2020 on the file of
the respondent police is nothing but abuse of process of law and is hereby
quashed.
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Crl.O.P.No.9386 of 2022
A.D.JAGADISH CHANDIRA,J.
rgi
20. Accordingly, this Criminal Original Petition stands allowed.
Consequently, connected Criminal Miscellaneous Petition is closed.
28.04.2022
rgi
Index : Yes/No
Internet : Yes/No
Speaking/Non-speaking order
To
1. The Inspector of Police,
Veppur Police Station,
Cuddalore District.
2.The Public Prosecutor,
High Court of Madras.
Crl.O.P.No.9386 of 2022
and Crl.M.P.No.5471 of 2022
https://www.mhc.tn.gov.in/judis
