Syed Taha Arsalan And 4 Others vs The State Of Telangana And Another
2021 Latest Caselaw 2281 Tel

            HON'BLE SRI JUSTICE K. LAKSHMAN

            CRIMINAL PETITION No.6537 OF 2020
ORDER:

The present Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973, to quash the proceedings in C.C.

No.1641 of 2020 on the file of Judicial Magistrate of First Class

(Special Mobile PCR) at Karimnagar against the petitioners herein.

2. The petitioners herein are accused Nos.1 to 5 in the said

Calendar Case. The offences alleged against them are under Sections

- 188, 269 and 270 of IPC, Section - 3 of the Epidemic Diseases Act,

1897 (for short 'E.D. Act') and Section - 51 (b) of the Disaster

Management Act, 2005 (for short D.M. Act) respectively.

3. Heard Mr. Mohd. Fasiuddin, learned counsel for the

petitioner and learned Assistant Public Prosecutor appearing on behalf

of respondents.

4. CASE OF PROSECUTION:

LW.1, Sub-Inspector of Police, Karimnagar II Town Police

Station, while performing patrolling duty on 15.04.2020 from 0800

hours to 1400 hours, he found gathering of 60 to 70 people near

Madeena Kiran Shop at Kashmeergadda, where, accused Nos.1 to 5

stationed their TATA Indigo Manza Car bearing registration No.AP

31BG 7220 and Maruthi Alto Car bearing registration No.AP 01 AD

6987 on the road and were distributing dry ratio bags to the said

people without following the State and Central Government Orders of KL,J Crl.P. No.6537 of 2020

COVID-19 and without obtaining prior permission from District

Authority. Even they have not followed the social distance of three

feet from each other, due to which, the innocent people gathered at

one place also did not maintain social distance. On account of such

acts of accused, there was every chance of spreading Corona Virus to

the society in Karimnagar Town causing endanger to human lives.

Thus, the accused have committed the aforesaid offences.

5. CONTENTIONS OF PETITIONERS:

i) Mr. Mohd. Fasiuddin, learned counsel for the petitioners,

would submit that the petitioners were forcibly got bound over and

registered a false case against them. He would further submit that the

petitioners in good faith distributed ration kits to the deserving people

in the morning hours during lockdown on account of COVID-19 in

good faith and by taking precautionary measures, such as wearing

masks and maintaining physical distance of three feet etc. Thus, they

did not commit any offence, much less the aforesaid alleged offences.

In support of the same, he has relied upon G.O.Ms.No.13 of Health

and Family Welfare (D) Department, Government of Telangana, dated

21.03.2020 and G.O.Ms.No.116 of General Administration

Department, dated 30.05.2021.

ii) Learned counsel for the petitioners would further submit

that there are no specific allegations attracting the aforesaid offences.

The police did not examine any independent witness to the effect that

the petitioners did not wear masks and did not follow the physical KL,J Crl.P. No.6537 of 2020

distance etc. and, thus, the investigation conducted by the police is

improper. The charge sheet lacks the ingredients of the aforesaid

offences.

iii) With the aforesaid submissions, learned counsel sought to

quash the proceedings against the petitioners.

6. CONTENTIONS ON BEHALF OF PROSECUTION:

i) Learned Assistant Public Prosecutor would submit that there

are specific allegations against the petitioners herein. There are triable

issues to be decided by the trial Court only after full-fledged trial, but

not at this stage. The petitioners have to prove their innocence. The

police after conducting the investigation filed the charge sheet. The

defence taken by the petitioners may not be considered in the present

petition filed under Section - 482 of Cr.P.C.

ii) With the aforesaid submissions, learned Assistant Public

Prosecutor sought to dismiss the present petition.

7. FINDING OF THE COURT:

i) The main allegation against the petitioners herein by the

complainant, Sub-Inspector of Police, is that during lock down

imposed by the State as well as Central Government, the petitioners

distributed the ration kits to the poor people without wearing masks

and without maintaining physical distance of three feet, and thereby

there was every chance of spreading Corona Virus to the society in

Karimnagar Town which endangers to human life. On the other hand, KL,J Crl.P. No.6537 of 2020

it is contended by the accused that they have distributed the ration kits

to the deserving people during lock down period by wearing masks

and following the physical distance of three feet etc. In support of

their contention, they have filed copies of photographs, paper

clippings and articles published in different News Papers etc. A

perusal of the same would show that the people found therein wore the

masks while distributing the ration kits.

ii) It is relevant to note that the police have not examined any

independent witness to support of their case. LW.1 is none other than

the complainant and Sub-Inspector of Police. LW.2 and LW.3 are

police constables said to be eye witnesses to the facts of the case.

LW.4 and LW.5 are panch witnesses in whose presence the police

drew rough sketch. It is relevant to note that in the charge sheet is has

been specifically mentioned that there is no incriminating material

found. LW.6 is the first Investigating Officer, who issued the FIR,

while LW.7 is the second Investigating Officer, who filed charge

sheet. Thus, it is clear that there is no independent witness examined

by the police to speak about the acts committed by the accused

attracting the aforesaid offences.

iii) In view of the above rival submissions, it is apposite to

extract the relevant provisions of IPC, ED Act and DM Act, which are

as under:

INDIAN PENAL CODE

"188. Disobedience to order duly promulgated by public servant.--Whoever, knowing that, by an order promulgated by KL,J Crl.P. No.6537 of 2020

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 person 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 trends 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.

Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.

Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."

"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."

"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 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."

KL,J Crl.P. No.6537 of 2020

EPIDEMIC DISEASES ACT

3. Penalty.--(1) Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860).

(2) Whoever,--

(i) commits or abets the commission of an act of violence against a healthcare service personnel; or

(ii) abets or cause damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.

(3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code (45 of 1860) to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees."

DISASTER MANAGEMENT ACT

"51. Punishment for obstruction, etc.--

Whoever, without reasonable cause--

(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or KL,J Crl.P. No.6537 of 2020

(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years."

iv) In view of the above, the legislative intent behind Section -

195 Cr.P.C. is that an individual should not face criminal prosecution

instituted upon insufficient grounds by person actuated by malice or

frivolity of deposition and to save the time of the court being wasted

by endless prosecution. In the absence of complaint by the public

servant concerned under Section - 195 Cr.P.C., the offence

under Section - 188 of IPC against accused cannot be sustained.

v) In order to convict any person for commission of offence

punishable under Section - 188 IPC, the Court has to satisfy itself that

the accused had not only violated the order promulgated by a public

servant but also the accused had actual knowledge of issuance of such

order. In the case on hand, there is no whisper in the charge sheet that

the accused had knowledge of the order.

KL,J Crl.P. No.6537 of 2020

vi) In Bhoop Singh Tyagi v. State1, the Delhi High Court held

that a person booked under Section - 188 of IPC must have actual

knowledge of public servant's order requiring him to do or abstain

from doing some act. It was further held that acquiring or gaining of

such knowledge is a pre-requisite and any proof of general notification

promulgated by a public servant would not satisfy the requirement.

vii) In N.T. Rama Rao v. The State of A.P., rep. by Public

Prosecutor2 while dealing with the offences under Sections - 188 and

283 of IPC, the learned Single Judge held as under:

"5) Even if the allegation that the petitioner conducted public meetings at three road junctions contrary to the permission accorded for conducting of a public meeting only at one specified place is true, such a direction under Section 30 of the Police Act, 1861 could have been given only by the Superintendent or the Assistant Superintendent of Police of the District but not by any of their subordinates. If such a permission is granted under Section 30 of the Police Act, 1861 and is violated, Section 195 (1) (a) of Code of Criminal Procedure mandates that the complaint in this regard has to be made by the public servant concerned or some other person to whom such a public servant is administratively subordinate to enable any Court to take cognizance of an offence under Section 188 of Code of Criminal Procedure.

In the present case, the charge sheet was filed by the Sub Inspector of Police, who could not have

. 2002 Cri.L.J. 2872

. Criminal Petition No.5323 of 2009, decided on 17.09.2009 KL,J Crl.P. No.6537 of 2020

been the authority to grant permission for the public meeting and therefore, the complaint/charge sheet is in violation of the mandatory provision of Section 195(1)(a) of Code of Criminal Procedure.

6) That apart, the offence alleged to have been committed under Section 283 of the Indian Penal Code by the petitioners and others is obviously in consequence to the alleged offence under Section 188 of Indian Penal Code and is not an independent of the same. Even otherwise, the conduct of public meeting at three road junctions or obstruction to the traffic could not have been considered as causing any danger or injury to any person. In so far as the obstruction in any public way is concerned, which can also be covered by Section 283 of the Indian Penal Code, the charge sheet cites only one witness to speak about the traffic jam caused by the road show. But, when the conduct of the public meeting at least at one place has been permitted and if the gathering for that public meeting resulted in any inconvenience by way of obstructing the traffic, the same cannot be considered to be with necessary guilty mens rea to construe the existence of an offence punishable under Indian Penal Code. Under the circumstances, none of the offences alleged can be said to have any reasonable basis and in any view, the complaint/charge sheet being in violation of Section 195 (1) (a) of Code of Criminal Procedure, has to fail.

7) As the complaint has failed due to its unsustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

KL,J Crl.P. No.6537 of 2020

viii) In Thota Chandra Sekhar v. The State of Andhra

Pradesh, through S.H.O., P.S. Eluru Rural, West Godavari

District3 relying on various judgments including N.T. Rama Rao2

and the guidelines laid down by the Hon'ble Supreme Court in State

of Haryana v. Bhajan Lal4, more particularly, guideline No.6, which

says that where there is an express legal bar engrafted in any of the

provisions of the Code or the concerned Act (under which a criminal

proceeding is instituted) to the institution and continuance of the

proceedings and/or where there is a specific provision in the Code or

the concerned Act, providing efficacious remedy to redress the

grievance of the party, a learned Single Judge of High Court of

Judicature at Hyderabad for the States of Telangana and Andhra

Pradesh quashed the proceedings in the said C.C. by exercising power

under Section 482 of Cr.P.C. It further held that the proceedings shall

not be continued due to technical defect of obtaining prior permission

under Section - 155 (2) of Cr.P.C. and taking cognizance on the

complaint filed by V.R.O. and it is against the purport of Section - 195

(1) (a) of Cr.P.C.

ix) In the case on hand, the police did not mention in the charge

sheet that the petitioners herein had knowledge of the order

promulgated by the public servant. Further, as already discussed

above, the police has not even examined any independent witness to

show that the petitioners did not wear any mask and that they did not

. Criminal Petition No.15248 of 2016, decided on 26.10.2016

. (1992) Supp. 1 SCC 335 KL,J Crl.P. No.6537 of 2020

maintain physical distance of three feet etc., and that on account of

their acts, the innocent people gathered at one place causing chance of

spreading Corona Virus to the society in Karimnagar.

x) On the other hand, the petitioners filed copies of

photographs, paper clippings and Articles published in various news

papers / magazines etc., showing that they were distributing the ration

kits to the deserving people in good faith during lock down by

wearing masks etc. In support of his contention, learned counsel for

the petitioner would submit that the act of petitioners in distributing

the ration kits to the deserving people during lock down period would

not amount to an offence as alleged by the prosecution against them in

view of Clause -17 of G.O.Ms.No.13 of Health and Family Welfare

(D) Department, Government of Telangana, dated 21.03.2020 and

instruction Nos.11 and 12 of G.O.Ms.No.116 of General

Administration Department, dated 30.05.2021.

xi) A perusal of the said G.O.Ms. No.13 would reveal that it

was issued by the Government of Telangana in exercise of the powers

conferred under Section - 2 of the E.D. Act, framing certain

regulations called as 'The Telangana Epidemic Diseases (COVID-19)

Regulations, 2020'. Clauses - 16 and 17 of the regulation in the said

G.O. are relevant, which are as under:

"16. Any person, institution, organization violating any provision of these Regulations shall be deemed to have committed an offence punishable under section 188 of Indian Penal Code KL,J Crl.P. No.6537 of 2020

(45 of 1860). The empowered officers may penalize any person, institution, organization found violating provisions of these Regulations or any further orders issued by Government under these Regulations.

17. No suit or legal proceedings shall lie against any person for anything done or intended to be done in good faith under these Regulations."

xii) In continuation of the said G.O.Ms.No.13, the State

Government has also issued G.O.Ms.No.14, dated 23.03.2020,

framing some more regulations to ensure social distancing to restrict

the spread of COVID-19, to be followed by all Shops, establishments

etc. In the said G.O., it is also mentioned that violation of the social

distancing norms shall be punishable under Sections - 188, 269 and

270 of IPC.

xiii) A perusal of the G.O.Ms.No.116, dated 30.05.2021 would

reveal that it was issued in exercise of powers conferred under the

Disaster Management Act,2005, on account of pandemic situation, the

Government has extended the lockdown with certain modifications

across the State of Telangana from 31.05.2021 to 09.06.2021 by

issuing directives to the concerned to implement the instructions

therein strictly. Even in the said G.O., instruction Nos.11 and 12

under the caption "General Instructions" is relevant to extract, which

are as under:

"11. Any violation of the aforesaid instructions shall result in prosecution under Sections 51 to 60 KL,J Crl.P. No.6537 of 2020

of Disaster Management Act, 2005 and Section 188 of IPC as well as other applicable laws.

12. No suit or legal proceedings shall lie against any person for anything done or intended to be done in good faith under these regulations."

xiv) In view of the above, the contention of the petitioners that

they have distributed the ration kits to the deserving people in 'good

faith' and, thus, their act would not amount to have committed any

offence under Sections - 188, 269 and 270 of IPC and so also under

Section - 3 of E.D. Act and Section - 51 of D.M. Act, is sustainable.

xv) More over, Section - 3 of the E.D. Act envisages that any

person disobeying any regulation or order made under this Act shall

be deemed to have committed an offence punishable under section

188 of IPC. This Court has already held that the petitioners have not

committed any offence, much less the offences under Section - 188 of

IPC. Section - 52 of the D.M. Act prescribes punishment for making a

false claim for obtaining any relief, assistance, repair, reconstruction

or other benefits consequent to disaster from any officer of the

authorities mentioned therein. In the present case, there is no

allegation whatsoever against the petitioners of having made any false

claim, let alone for obtaining any relief, assistance, repair,

reconstruction or other benefits consequent to disaster from any

officer of the Government or other authority. In view of the aforesaid,

the allegation in respect of the offence punishable under Section - 52

of the D.M. Act cannot be sustained against the accused. The facts of KL,J Crl.P. No.6537 of 2020

the present case fall within the parameters laid down by the Apex

Court in Bhajan Lal4. Therefore, continuation of proceedings in C.C.

No.1641 of 2020 is not warranted and the same are liable to be

quashed.

8. CONCLUSION:

i) Applying the principle laid down in the above said

judgments and in view of the above said discussion, the proceedings

in C.C. No.1641 of 2020 on the file of Judicial Magistrate of First

Class (Spl.Mobile PCR), Karimnagar, are hereby quashed against the

petitioners herein.

ii) The present Criminal Petition is accordingly allowed.

iii) Since the proceedings are quashed against the petitioners,

the petitioners are at liberty to file appropriate application afresh

before the Magistrate for return of the vehicles seized by the police,

and the Magistrate shall consider the same in accordance with law.

As a sequel, miscellaneous petitions, if any, pending in the

Criminal Petition shall stand closed.

_________________ K. LAKSHMAN, J 04th August, 2021 Mgr