Telangana High Court

Sri. Etala Rajender vs The State Of Telangana on 18 November, 2024

Author: K. Lakshman

Bench: K. Lakshman

          HON'BLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL PETITION No.879 OF 2024

ORAL ORDER:

Heard Mr. J. Prabhakar, learned Senior Counsel representing

Mr. Gummalla Bhasker Reddy, learned counsel for the petitioner

and Mr. Syed Yasar Mamoon, learned Additional Public

Prosecutor appearing on behalf of respondent No.1 - State.

2. This Criminal Petition is filed under Section - 482 of the

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

C.C. No.241 of 2022 pending on the file of Special Judicial

Magistrate of First Class for Excise Cases, Hyderabad.

3. The petitioner herein is arraigned as sole accused in the

said case. The offences alleged against him are under Section -

188 of IPC and Section - 51 (b) of the Disaster Management Act,

2005 (for short D.M. Act).

4. Respondent No.2 lodged a complaint dated 12.10.2021

with Jammikunta Town Police Station stating that on 10.10.2021

he was deputed for Law & Order Bandobast on the outdoor

meeting conducted with star complainer, Mr. M. Raghunandan

Rao, MLA, BJP State Secretary in support of BJP contesting

KL,J

candidate having obtained permission by the petitioner herein vide

proceedings No.L/2564/2021, dated 11.10.2021 at Bizigirisharif to

canvas for the bye-elections to be conducted for Huzurabad

Assembly Constituency. When he attended law & order bandobast

at 18.30 hours found that the petitioner violated the model code of

Conduct by gathering more than 1000 people for his outdoor

meeting and thereby violated COVID-19 pandemic protocol by

non-wearing masks, maintenance of social distance and

sanitization which are clearly mentioned in the permission dated

11.10.2021. Therefore, he requested the police to take action

against the petitioner herein.

5. On receipt of the said complaint, the police of

Jammikunta Town registered a case in Crime No.316 of 2021 for

the aforesaid offences. On completion of investigation,

Investigating Officer laid the charge sheet against the petitioner

and the same was taken on file vide C.C. No.241 of 2022 for the

aforesaid offences.

6. During the course of investigation, LW.6 - the

Investigating Officer recorded statement of respondent No.2 as

LW.1 and LW.2, an eye-witness. LW.3 is the person who made

KL,J

C.D. by copying from video camera and issued 65-B Certificate

and LWs.4 and 5 are panch witnesses.

7. Perusal of statements of LWs.1 and 2 recorded under

Section - 161 of Cr.P.C. would reveal that they in one voice stated

about the violation of model Code of Conduct by the petitioner and

others by gathering more than 1000 people for his outdoor meeting

and violated COVID-19 protocol by non-wearing masks,

maintenance of social distance and sanitization which are clearly

mentioned in the permission letter dated 11.10.2021.

8. It is relevant to refer to Section - 188 of IPC and Section

51 (b) of D.M. Act, and the same are extracted hereunder:

"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 person lawfully employed, be punished with simple imprisonment for a term

KL,J

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."

"51. Punishment for obstruction, etc.--

Whoever, without reasonable cause--

(a) obstructs any officer or employee of the Central Government or the State

KL,J

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

(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."

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

Prosecutor 1 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

. Criminal Petition No.5323 of 2009, decided on 17.09.2009

KL,J

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 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

KL,J

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 un- sustainability, the proceedings in their entirety have to fail, though the 1st accused alone approached this Court by way of this Criminal Petition."

KL,J

10. In Thota Chandra Sekhar v. The State of Andhra

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

District 2 relying on various judgments including N.T. Rama Rao1

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

State of Haryana v. Bhajan Lal 3, 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.

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

. (1992) Supp. 1 SCC 335

KL,J

11. As per Section 51 (b) of the D.M. Act, there should be

refusal to comply with the 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 the Act. There is no mention about the

instructions issued by either the Central Government or the State

Government or National Executive Committee or the State

Executive Committee or the District Authority under the Act. In

the complaint of respondent No.2 and the statements of LWs.1 and

2 recorded under Section - 161 of Cr.P.C. they have not mentioned

the said facts. The police have not even examined any independent

witness to show that the petitioner did not wear any mask and that

he did not maintain physical distance and sanitization etc., and that

on account of his acts, innocent people gathered at one place

causing chance of spreading Corona Virus to the society in

Bizigirisharif Village. Thus, without considering the said aspects,

the Investigating Officer laid the charge sheet and the trial Court

took cognizance of the aforesaid offences.

12. In Bhajan Lal3, the Apex Court cautioned that power of

quashing should be exercised very sparingly and circumspection

KL,J

and that too in the rarest of rear cases. While examining a

complaint, quashing of which is sought, Court cannot embark upon

an enquiry as to the reliability or genuineness or otherwise of the

allegations made in the FIR or in the complaint. The Apex Court

in the said judgment laid down certain guidelines/parameters for

exercise of powers under Section - 482 of Cr.P.C., which are as

under:

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose

KL,J

the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the

KL,J

accused and with a view to spite him due to private and personal grudge."

The said principle was reiterated by the Apex Court in catena of

decisions.

13. Learned Additional Public Prosecutor would further

contend that the trial Court dismissed the discharge application

filed by the petitioner vide Crl.M.P. No.1079 of 2023 on

22.09.2023. Therefore, the petitioner cannot seek quashment of the

proceedings in C.C. No.241 of 2022. But, dismissal of discharge

application is not a ground to maintain the present petition filed

under Section - 482 of Cr.P.C. to quash the proceedings in C.C.

No.241 of 2022.

14. In the light of the above discussion and the principle laid

down in the aforesaid decisions, continuation of proceedings in