Orissa High Court
(A Petition Under Section 482 Of The Code ... vs State Of Odisha .... Opp. Party (S) on 30 January, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 12-Feb-2026 11:27:32
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.3526 of 2024
(A petition under Section 482 of the Code of Criminal Procedure,
1973)
Kalpana Gupta @ Sahu and Anr. .... Petitioner (s)
-versus-
State of Odisha .... Opp. Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Mr. Chiranjeev Bidyabhusan, Advocate
Ms. Amrita Mishra, Adv.
For Opp. Party (s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-19.01.2026
DATE OF JUDGMENT:-30.01.2026
Dr. Sanjeeb K Panigrahi, J.
1. In this criminal miscellaneous petition, the petitioners seek a direction from this Court to quash the order dated 16.11.2020 passed by the learned SDJM, Jharsuguda in C.T. Case No.2200 of 2020 taking cognizance of offences under Sections 188, 269, 270 read with Section 34 IPC and Section 3 of the Epidemic Diseases Act, 1897, on the ground that the proceedings are without jurisdiction, contrary to statutory mandate, and amount to an abuse of the process of law.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case as narrated by the Petitioners are as follows:
Page 1 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 i. The present proceeding arises out of Jharsuguda P.S. Case No. 607 of 2020 dated 20.08.2020, registered on the basis of an allegation that the petitioners violated containment zone restrictions during the COVID-19 pandemic.
ii. One resident of Malipada area tested positive for COVID-19, pursuant to which the District Magistrate & Collector, Jharsuguda declared Malipada and surrounding areas as a containment zone vide order dated 12.08.2020.
iii. The residential house of the petitioners fell within the declared containment zone, and the nasal swab sample of Petitioner No.1 was collected on 15.08.2020 for RT-PCR testing.The test result of Petitioner No.1 was declared COVID-19 positive on 20.08.2020 evening.
iv. The informant, who is the Tahasildar and Executive Magistrate, alleged that despite containment restrictions and sample collection, the petitioners continued to move outside the containment zone and attended court and other public places between 12.08.2020 and 20.08.2020.
v. On the basis of the FIR, investigation was conducted by an Assistant Sub-Inspector of Police, who submitted Final Form against the petitioners.
vi. By order dated 16.11.2020, the learned SDJM, Jharsuguda took cognizance of offences under Sections 188, 269, 270 read with Section 34 IPC and Section 3 of the Epidemic Diseases Act, 1897.
Page 2 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions:
i. The petitioners contend that the cognizance order has been passed mechanically, without independent application of judicial mind, solely relying upon the Final Form submitted by the Investigating Officer.
ii. It is asserted that cognizance under Section 188 IPC is barred by Section 195 Cr.P.C., as no written complaint was filed by the competent public servant before the Magistrate. iii. The petitioners argue that no offence under Sections 269 and 270 IPC is made out since the essential ingredient of "knowledge" or "reason to believe" regarding infection was absent prior to 20.08.2020.
iv. It is contended that the FIR itself was lodged immediately after receipt of the test result and there is no allegation of exposure to public places after confirmation of COVID-19 positivity. v. The petitioners submit that investigation under Section 3 of the Epidemic Diseases Act, 1897 is statutorily barred as it was conducted by an officer below the rank of Inspector, contrary to Section 3A(ii) of the Act.
vi. Reliance is placed on a subsequent RT-PCR test report dated 21.08.2020 showing Petitioner No.1 as COVID-19 negative, casting doubt on the prosecution's allegation of infection and spread.
Page 3 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 vii. The petitioners rely on judicial precedents to contend that continuation of proceedings would amount to abuse of process of law in absence of legally sustainable material.
III. FINDINGS OF THE IMPUGNED ORDER OF THE SDJM COURT:
4. The order dated 16.11.2020 reflects that the learned SDJM perused the Final Form and the record produced by the Investigating Officer before taking cognizance of the offences alleged.
5. The learned SDJM recorded satisfaction regarding existence of a prima facie case under Sections 188, 269, 270 read with Section 34 IPC and Section 3 of the Epidemic Diseases Act, 1897.
6. The order does not indicate any independent discussion on the statutory bar under Section 195 Cr.P.C. in relation to Section 188 IPC.
7. The order does not record any specific finding on the requirement of "knowledge" or "reason to believe" under Sections 269 and 270 IPC.
8. There is no discussion in the order regarding the statutory mandate under Section 3A of the Epidemic Diseases Act concerning the rank of the Investigating Officer.
9. The cognizance order is brief in nature and does not elaborate on how the essential ingredients of the alleged offences are prima facie satisfied.
10. The order proceeds on the basis of satisfaction of a prima facie case without addressing procedural objections raised subsequently by the petitioners.
Page 4 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 IV. COURT'S REASONING AND ANALYSIS:
11. Heard learned counsel for the parties and perused the material on record.
12. This is a petition under Section 482 CrPC seeking quashing of the cognizance order dated 16.11.2020 passed by the SDJM, Jharsuguda in C.T. Case No. 2200/2020 (arising out of Jharsuguda P.S. Case No. 607 of 2020), involving alleged violation of COVID-19 containment orders. The petitioners challenge the cognizance taken under Sections 188, 269, 270, and 34 IPC and Section 3 of the Epidemic Diseases Act, 1897, on grounds that: (i) cognizance under Section 188 IPC is barred under Section 195(1)(a)(i) Cr.P.C. due to absence of a written complaint from the competent authority; (ii) essential mens rea under Sections 269 and 270 IPC is lacking as there was no knowledge of infection before 20.08.2020;
and (iii) the investigation under the Epidemic Diseases Act was conducted by an unauthorized officer below the rank of Inspector, violating the statutory mandate. The petitioners argue that continuation of proceedings would amount to abuse of process.
13. Clause (a)(i) of Section 195(1) CrPC prohibits any court from taking cognizance of an offence punishable under Sections 172 to 188 IPC (contempt of lawful authority of public servants) except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, the allegations of disobedience (Section 188 IPC) relate to violation of an order promulgated by the District Magistrate & Collector, Jharsuguda on 12.08.2020 declaring the Malipada area as a containment zone. The informant (complainant) in the FIR is the local Tahasildar-
Page 5 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 cum-Executive Magistrate, who indeed is the public official responsible for enforcing the containment order.
14. However, no complaint in writing by the said public servant (or any superior) was filed before the Magistrate. Instead, the police proceeded to investigate and submitted a charge-sheet (Final Form), on the basis of which the learned S.D.J.M. took cognizance. This mode of taking cognizance squarely contravenes the mandate of Section 195 CrPC.
15. The law in this regard is well-settled that the embargo of Section 195 is absolute; if an offence falls under its ambit (as Section 188 IPC does), the court lacks jurisdiction to take cognizance in the absence of a proper written complaint by the competent public servant.
16. The Supreme Court has repeatedly emphasized that provisions of Section 195 are mandatory and not merely directory; a Magistrate cannot bypass this requirement by entertaining a police report for an offence like Section 188 IPC. In M.S. Ahlawat v. State of Haryana.1 the Supreme Court, after surveying earlier precedents, observed as follows:
"Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
17. Furthermore, in the case of Daulat Ram v. State of Punjab2, it was held that any trial and conviction for an offence covered by Section 195, if taken cognizance of without such complaint, would be void ab initio, having been conducted without jurisdiction. The Court held as follows: 1
AIR 2000 SC 168 2 AIR 1962 SC 1206 Page 6 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 "The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added) 25 Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with.
The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
18. In the present case, since admittedly no written complaint under Section 188 IPC was filed by the District Magistrate or other authorized officer, the very institution of proceedings for the Section 188 IPC charge is vitiated. The cognizance taken for the offence under Section 188 IPC is unsustainable in law and is liable to be set aside on this ground alone.
19. It is argued by the learned Additional Public Prosecutor, in defense of the cognizance order, that the Tahasildar himself was the informant and the entire case originated from official action; thus, the "essence" of Section 195 was complied with. This contention cannot be accepted. The bar of Section 195 CrPC is not a mere technicality but a deliberate legislative insistence that prosecutions for disobedience of public authority be initiated only through sanctioned process (formal complaint) and not by straightforward FIRs.
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20. The informant's role in giving information to police does not cure the defect, because the Magistrate's act of taking cognizance was not on the basis of a complaint by the public servant but on a police chargesheet. The distinction is crucial and was highlighted in State of Punjab v. Raj Singh3, wherein the Supreme Court clarified that while the police may register an FIR and investigate to assist the public servant, the court cannot take cognizance of the offence under Section 188 IPC except upon the written complaint of the public servant.
21. Next, the Court turns to the charges under Sections 269 and 270 of the IPC, which deal with negligent and malignant acts likely to spread infection of a dangerous disease. Unlike Section 188 IPC, these offences are not per se barred by Section 195 CrPC since they do not fall in the category of offences requiring a public servant's complaint. The key question here is whether the uncontroverted facts disclose the ingredients of Sections 269/270 IPC. Both sections require proof of a certain mental element on part of the accused regarding the infectious nature of his act.
22. Section 269 IPC punishes "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."
23. Similarly, Section 270 IPC (which is a graver form) applies to malignant acts done with knowledge that they are likely to spread a dangerous infection. It is thus evident from the statutory language that knowledge or reasonable belief of the likelihood of spreading the disease is an essential ingredient for these offences. In other words, the person's 3 (1998) 2 SCC 391 Page 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 awareness (or reason to be aware) of being infected, or of the risk of infecting others, at the time of the impugned act is sine qua non for culpability. A mere breach of a public health guideline or an order, without the requisite mens rea in respect of the infection, would not ipso facto attract Sections 269/270 IPC.
24. Applying these principles to the case at hand, the Court finds a fundamental infirmity in the prosecution's case under Sections 269 and 270 IPC. The allegations in the FIR, as well as the material in the charge- sheet, show that the petitioners' residence fell within a containment zone declared on 12.08.2020 following a COVID-positive case in the locality. The petitioners are alleged to have violated the stay-at-home mandate and to have attended public places, including apparently a court, during this period. Petitioner No.1's nasal swab was collected on 15.08.2020, and his test result first came positive on 20.08.2020 in the evening. Significantly, the prosecution does not allege that the petitioners ventured out after 20.08.2020. The entire allegation of "spreading infection" is confined to their movements prior to the confirmation of the positive result.
25. There is no assertion in the FIR that, before 20.08.2020, Petitioner No.1 knew he was infected, exhibited COVID-19 symptoms, or had been declared positive by any authority. The central question, therefore, is whether during the period from 12.08.2020 to 20.08.2020 the petitioners had reason to believe that Petitioner No.1 was carrying the virus so as to render their movements outside the residence a potentially infectious act committed negligently or malignantly.
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26. On the facts, such knowledge or belief cannot reasonably be inferred.
While the petitioners were aware that their locality was under
containment restrictions due to a neighbour's infection and were expected to exercise caution, awareness of a general risk cannot be equated with knowledge of one's own infection. Petitioner No.1 had not been confirmed positive and had, in fact, submitted a sample for testing, which reflects caution and compliance rather than intent to expose others. Until the test result was communicated, any assumption of infection would have been speculative. In the absence of symptoms or any prior indication of infection, the essential mental element required under Section 269 IPC appears to be lacking on the face of the record.
27. While the petitioners' act of roaming outside the containment zone may have been imprudent and violative of administrative guidelines, criminal liability under Sections 269/270 IPC cannot be fastened in the absence of any prima facie material that they acted with the knowledge that such act was likely to spread the infection of COVID-19.
28. Moreover, the subsequent events further weaken the prosecution case. It is on record that immediately after Petitioner No.1 was reported COVID-19 positive on 20.08.2020, a fresh RT-PCR test was conducted on 21.08.2020, which returned a negative result. This subsequent report creates a serious doubt as to whether Petitioner No.1 was infected at all. The possibility of a false-positive result or a negligible viral load cannot be ruled out. In either situation, the existence of a negative test report within one day substantially erodes the prosecution's allegation that the petitioner was carrying and spreading the virus. In criminal jurisprudence, such doubt necessarily operates in favour of the accused.
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29. At the stage of cognizance or framing of charge, this Court is not required to conclusively determine which test report is correct; however, the clear inconsistency between the two reports significantly undermines the prima facie credibility of the allegation that Petitioner No.1 was an infected carrier moving in public. Consequently, the material on record does not travel beyond mere suspicion and fails to disclose a prima facie case that the petitioners committed any negligent or malignant act with the requisite "knowledge" or "reason to believe"
that it was likely to spread infection. Continuation of proceedings under Sections 269 and 270 IPC, in such circumstances, would serve no legitimate purpose and would amount to harassment of the petitioners. On this ground as well, the proceedings under Sections 269 and 270 IPC deserve to be quashed to prevent abuse of the process of law. V. CONCLUSION:
30. In view of the foregoing discussion, this Court is of the considered opinion that the cognizance taken for the offence under Section 188 IPC is vitiated by a clear statutory bar under Section 195 Cr.P.C., rendering the initiation of proceedings without jurisdiction. Further, the materials placed on record do not disclose the essential ingredients of offences under Sections 269 and 270 IPC, as the requisite element of knowledge or reason to believe that the act was likely to spread infection is conspicuously absent, and the prosecution case rests on no more than conjecture and suspicion. Continuation of the criminal proceedings in such circumstances would amount to an abuse of the process of law.
31. Accordingly, the petition is allowed, the impugned order dated 16.11.2020 passed by the learned S.D.J.M., Jharsuguda in C.T. Case No. Page 11 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 12-Feb-2026 11:27:32 2200 of 2020 is hereby quashed, and the entire criminal proceeding arising therefrom stands set aside.
32. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 30th Jan., 2026/ Page 12