The Single Bench of the Delhi High Court in the case of Decathlon Sports India Pvt. Ltd. vs State Nct of Delhiconsisting of Justice Asha Menon reiterated that Section 195 CrPCbars the court from taking cognizance in some cases i.e., offences punishable u/s 172 to 188 IPC (both inclusive) or its abetment or attempt, or criminal conspiracy, except on the complaint in writing of the public servant concerned, or his superiors.
Or
The Single Bench of the Delhi High Court in the case of Decathlon Sports India Pvt. Ltd. vs State Nct of Delhiconsisting of Justice Asha Menon expounded that the offence u/s 188 IPC was made cognizable only to facilitate the police to take immediate action, including the arrest of a person, who is found disobeying the orders issued for maintenance of law and order and in the interest of public health. That purpose cannot be converted into one that subjects the offender to unnecessary harassment and entails violation of Article 21 of the Constitution of India, guaranteeing the right to life, of which liberty is an inalienable facet.
Facts
This petition was filed under Articles 226/227 of the Constitution of India read with Section 482 CrPC for quashing FIR registered u/s 188 IPC, wherein petitioner who failed to close the showroom by 8 pm was proceeded against, for having violated the Covid-19 notification for closing time for shops.
Contentions Made
Petitioner: Mo FIR could have been registered against the petitioner without the written complaint of the Competent Authority, i.e., the Assistant Commissioner of Police. Quashing of the FIR was necessitated as the police were summoning the petitioner, unlawfully u/s 41A CrPC.
Respondent: Since the violation of the Covid-19 norms was a cognizable offence, the police were entitled to take cognizance of the commission of the offence and register the FIR. Law proscribed the taking of cognizance by the court without a complaint of the public servant, but not the submission of a charge-sheet including such a complaint.
Observations of the Court
The Bench noted that Section 188 IPC renders disobedience to an order duly promulgated by a public servant an offence.
It further noted that Section 195 CrPCdoes not allow the court to take cognizance in some cases i.e., offences punishable u/s 172 to 188 IPC (both inclusive) or its abetment or attempt, or criminal conspiracy, except on the complaint in writing of the public servant concerned, or his superiors. It is settled law that in the absence of the complaint, taking of cognizance is bad and such taking of cognizance has been quashed by the High Courts and the Apex Court.
Coming to whether the FIR could be quashed, it was held that the samewas only in compliance with prescribed procedure, and so long as it disclosed the commission of an offence, and in the absence of any other valid ground, it cannot be quashed.
The Bench opined that the police seem to have gone a little too far in the present case as they have proceeded to issue Notices u/s 41A CrPC demanding appearance at the police station for ascertaining facts and circumstances relating to the investigation, which was deemed suspicious.It also stated that the offence was made cognizable only to facilitate the police to take immediate action including the arrest of a person found disobeying the law and order, and not for unnecessary harassment which entails violation of Article 21.
Judgment
The Court disposed the petition with direction to the SHO concerned to forward the complaint to the concerned Magistrate’s court immediately.
Case:Decathlon Sports India Pvt. Ltd.vs State Nct of Delhi
Citation: W.P.(CRL) 698/2022, CRL.M.A. 5859/2022 (for stay)
Bench: Justice Asha Menon
Decided on: 4thAugust 2022
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