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.880 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.235 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 offence alleged against him is under Section - 188

of IPC.

4. Respondent No.2, Flying Squad Team-2 gave a

complaint dated 12.10.2021 with Jammikunta Twon Police Station

stating that on the said date the petitioner herein and his leaders

conducted road show by violating the Model Code of Conduct with

more than 1000 people as against the permissible people mentioned

in the permission C.No.L/2564/2021-195 of R.O. 31-Huzur;abad

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Assembly Constituency and thereby the petitioner violated the

protocol of COVID-19 i.e., non-wearing of mask, proper

sanitization and social distance etc. 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.315 of 2021 for

the offences under Section - 188 of IPC and 51 (b) of the Disaster

Management Act, 2005. On completion of investigation,

Investigating Officer laid the charge sheet against the petitioner for

the offence under Section - 188 of IPC and the same was taken on

file as C.C. No.235 of 2022 for the aforesaid offence.

6. During the course of investigation, LW.7 - Investigating

Officer recorded statement of respondent No.2 as LW.1 and two

(02) eye-witnesses as LWs.2 and 3. LW.4 is the person who made

C.D. by copying from the video camera of LW.3. LWs.5 and 6 are

panch witnesses.

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

Section - 161 of Cr.P.C. would reveal that both of them in one

voice stated that the petitioner obtained permission from the

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Returning Officer for conducting an election campaign and road-

show along with Mr. Ramesh Rathod, M.P. on 12.10.2021 around

10.40 AM to 1.00 P.M. In the said permission, it is mentioned that

there should be not more than 1000 people in the programme, but

the petitioner violated the permission rules and also COVID-19

rules.

8. In view of the above, it is relevant to refer to Section -

188 of IPC and the same is 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 impris- onment 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

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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."

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 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

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

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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 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

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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."

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

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

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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.

11. The Investigating Officer did not follow the procedure

laid down under Section - 155 of Cr.P.C. Further, in the charge

sheet, there is reference to the petitioner and others, but the

Investigating Officer did not conduct investigation with regard to

others. Charge sheet is filed only against the petitioner and

. (1992) Supp. 1 SCC 335

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cognizance was also taken against him. Contents of charge sheet

including statements of LWs.1 and 2 lack the ingredients of

Sections - 188 of IPC.

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

quashing should be exercised very sparingly and circumspection

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

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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 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

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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 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.1077 of 2023 on

22.09.2023. Therefore, the petitioner cannot seek quashment of the

proceedings in C.C. No.235 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.235 of 2022.

14. In view of the aforesaid discussion and the principle laid

down in the aforesaid decision, continuation of proceedings in the