Jayprakash Tiwari vs State Of Uttarakhand & Another
2022 Latest Caselaw 3594 UK

       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
       Criminal Misc. Application No.1823 of 2022

Jayprakash Tiwari                                  .....Applicant

                                 Vs.

State of Uttarakhand & another                  .....Respondents

Present:- Mr. G.C. Lakhchaura, Advocate for the applicant.

Mr. Pramod Tiwari, Brief Holder, for the State of Uttarakhand/1.

Hon'ble Sharad Kumar Sharma, J (Oral)

The present C482 Application, the applicant, who has been charged for the offence under section 269 and 270 of the IPC, is being tried in Criminal Case No.600 of 2020, "State of Uttarakhand Vs. Vinay Sikarwal and others", which stood registered against him as a consequence of the submission of the Charge Sheet, being Charge Sheet No.514 of 2020, dated 14th September 2020, and the consequential summoning order dated 15th October, 2020, whereby, the applicant was summoned to face the aforesaid trial for the alleged involvement of the present applicant in the offence under sections 269 and 270 of the IPC.

2. The brief facts of the case are that, according to the applicant, an FIR dated 03.05.2020, was got registered at Police Station Muni-ki-Reti, District Tehri Garhwal, as against the applicant on an allegation, that while driving a car along with some other persons during the period when the Covid 19 restrictions were imposed by the Government of

India, due to the Covid-19 pandemic situation, the car was being driven in violation of the guidelines and the permission which stood granted to the applicant by the Additional District Magistrate, with regards to the number of the passengers, which were permitted to be carried in the vehicle, which according to the permission granted, it was only in respect of total 9 persons, limited to three persons per car, but in each of the cars one person was found to be extra, travelling in the car, which had created a risk of spread of pandemic, and hence, the act of the applicant as complaint of in the FIR dated 3rd May 2020, was taken as to be an offence under section 188, 269, and 270 of IPC, and section 2/3 of the Pandemic Act, 1987, and under Section 51 (b) of the Disaster Management Act.

3. The investigation was carried, and the Charge Sheet was submitted, being Charge Sheet No. 514 of 2020, against the applicant and the other co- accused persons for the offences, as referred to hereinabove. On completion of the investigation, it is the case of the applicant that without application of mind, and without there being any sufficient material consideration made by the court, a mechanical conclusion has been arrived at for leveling an allegation of the commission of the offence under section 269 and 270 of the IPC, on the present applicant. After the submission of the Charge Sheet, the cognizance had been taken by the court of Judicial Magistrate, Narendra Nagar, Tehri Garhwal, on 15th October 2020, the summoning order was

issued on 15th October 2020, which are the subject matter of challenge in the present 482 application.

4. Learned Counsel for the applicant had submitted that no offence under sections 269 and 270 of IPC, are made out for the reason being that in order to attract an individuals involvement in the commission of the offences under section 269 of the Indian Penal Code, the basic ingredient, which is required is the instrumentality of an individual to have indulged into an act, which had a possibility of spreading of the disease. The allegation attributed to the applicant was limited to the extent of carrying number of passengers more than the permissible limit.

5. In that eventuality, if there was a violation of the permission granted, the issue would be as to whether the said offence could be at all said to be an offence under sections 269 and 270 of the Indian Penal Code or not? It has been argued by the learned Counsel for the applicant, from the prospective that section 269 of the IPC could have been attracted, had there been a condition that the passengers who were being carried in the vehicle allegedly beyond the permissible limit, which was granted by the Additional District Magistrate, could have been attracted only subject to the condition that any of the passengers, which were being carried beyond the permissible limit were already infected with Covid-19, and the said determination could have been made only after medical examination, prior to taking of the cognizance under sections 269 and 270 of the IPC,

the medical test, and examination of the passengers which were being carrying in the car was taken up by the competent authority to arrive at a conclusion that there was a possibility of the spread of a disease, which was dangerous to life, and the said determination could have been only arrived at only when there was a test conducted upon the passengers, which were allegedly being carried by the present applicant in the car for which the permission was granted.

6. Learned counsel for the applicant submits, that in order to make out an offence under section 269 of IPC, according to his interpretation given to section 269 of IPC, apart from the fact that, it should be unlawful or negligent act, he submits that section 269 of IPC, could be only attracted in those circumstances, where any of the passengers, which were being carried in the car beyond the permissible limit were found to be infected by Covid-19, and until and unless, any of the passengers, which were being carried were determined to be positive Covid-19. Section 269 of IPC would not be attracted.

7. In support of his contention, the learned counsel for the applicant has made reference to a judgment of the Punjab and Haryana High Court, as rendered by the coordinate Bench of the said Court in the matters of "Sidak Singh Sandhu Vs. U.T. Chandigarh and another", and particularly, he has drawn the reference to paragraph no.14, of the said judgment, which is extracted hereunder:-

"14. That with respect to the offence under section 269 and 270 IPC, it is required of the prosecution that the person should be suffering from Covid- 19 positively and was wandering in an around the neighboring area or in the locality in violation of the Regulation relating to Lockdown due to pandemic situation and spreading infection. The petitioner having not been found Covid- 19 positive due to lack of conducting the test and since there were no symptoms, the ingredients of offence punishable under section 269 and 270 IPC are not attracted."

8. What he submits is that if paragraph no.14, of the said judgment, is taken into consideration, there has had to be an establishment by the prosecution after conducting the medical test that the person was suffering from Covid-19 positive, and he was wandering in an around the place, which could have increased the possibility of the spread of the disease in the locality, and wandering of the person during the period of restriction would obviously amount to be an act under section 269 of the IPC, for a possibility of spreading of the disease, but the distinction which has been carved out by the learned counsel for the applicant is that merely wandering of a person, which in the instant case, would be of carrying of the passengers in the car beyond the permissible limit, section 269 of IPC could have been only attracted when prior to registration of the FIR, under section 269 of IPC, had the competent authorities, conducted a Covid-19 test upon the passengers, which were being carried, and if any of the passengers were found to be Covid 19 positive, in that eventuality, only the implications of section 269 of IPC, could have been attracted.

9. He submits that in the absence of there being any test being conducted prior to the registration of the FIR under sections 269 and 270 of IPC, on which cognizance has been taken, it cannot be said that the applicant was at all responsible for commission of the offence under section 269 of IPC, for any act of his, which could have ultimately resulted into increase of the disease, which was dangerous to life.

10. Learned counsel for the applicant while making reference to paragraph nos.14 and 16, of the said judgment, and the argument which has been extended by him, is not acceptable, because that was not a conclusion drawn by the court, but rather it was an averment and submission which were advanced by the learned counsel, which were required to be considered by the court while arriving at a conclusion as to whether an offence under section 269 and 270 of IPC, are made out or not.

11. Learned counsel had further referred to paragraph no.12, of the judgment, which has dealt with the judgment of the Division Bench of the Bombay High Court as rendered in Criminal Application (Appl) No.453 of 2020, "HLA SHWE and others Vs. State of Maharashtra", as decided on 21.09.2020, and while drawing its implications from the aforesaid judgment, the Division Bench in order to bring an act within the ambit of section 269 of IPC, what has been provided, therein, is that prior

to taking the cognizance or the registration of the complaint, it was incumbent upon the authority that they ought to have tested the passengers, who were allegedly traveling in the car beyond the permissible limit, and if any of the passengers were found to be suffering from Covid-19 positive, then only the provision of section 269 of IPC, could have been made applicable as against the applicant.

12. He further submits that in the absence of there being any test being conducted, it would run contrary to the observations made in paragraph nos.14 and 17, of the judgment of the Bombay High Court, that too to arrive at a conclusion as to whether the individual had any instrumentality in spread of the pandemic. What was necessary was that if the passengers were being carried beyond the permissible limit, and upon the same being found to be in violation of the terms of permission granted, it was necessary for the respondent authorities that prior to registering of the FIR under sections 269 and 270 of the IPC, the authority ought to have conducted the test, on the passengers, which were thus being carried in order to arrive at a positive conclusion, as to whether at all they were Covid-19 positive patients or not, until and unless, the said process was being carried, what he intends to argue is that section 269 of IPC could not be made out because no act of negligence was established by the respondent by on conducting a test on the passengers, which were being carried by the applicant in excess to the permission granted by the Additional District Magistrate.

13. The argument of the learned counsel for the applicant if it is read in the context of the intentions contained under section 269 of IPC, it contemplates that the person who is said to have committed an offence under section 269 of IPC, he must have a reason to believe that the accused was instrumental in the spread of the disease or an infection, and that could have been possible in the context when the situation contemplated in paragraph no.12, of the Punjab and Haryana High Court judgment, based upon the judgment of the Bombay High Court, when the test was conducted by the authorities, at the time when the vehicle was apprehended by them, thus in the absence of there being any test conducted, and in the absence of any of the passengers being found to be tested positive, it cannot be said that the applicant was at all instrumental in spread of infectious disease, which was dangerous to life, because before drawing any conclusion, as such, there has had to be a satisfaction by the authorities, and they ought to have conducted a test on the passengers, which were being carried in the vehicle beyond the permissible limit and having not done so, the argument is that there was no material, as such before the respondent authorities to drive a reason to believe that the applicant was at all instrumental in spread of the infectious disease which was dangerous to life.

14. In that eventuality, and the aspect which has been dealt with by the Punjab and Haryana High Court in the matters of Sidak Singh Sandhu (Supra) because when no action was taken by the authorities

as against the conduct or an act of the negligence against whom the offence under section 269 of IPC, is attempted to be drawn, the act of prosecution under section 269 of IPC and 270 of IPC, of the person without there being a credible material before the authorities would be bad in the eyes of law. As per the case at hand admittedly when the vehicle was being apprehended, or even thereafter ever there was no test conducted and there was no determination made by the authorities that any of the passengers which were being carried were infected by the Covid- 19 virus, and as such, section 269 of IPC, would not be made out against the present applicant.

15. As a consequence thereto, and for the reasons assigned above, the C482 Application is allowed. The proceedings of the Criminal Case No.600 of 2020, "State of Uttarakhand Vs. Vinay Sikarwal and Others", pending before the Judicial Magistrate, Narendra Nagar, Tehri Garhwal, would hereby stand quashed qua the present applicant only.

(Sharad Kumar Sharma, J.) 14.11.2022 NR/