Himachal Pradesh High Court
Date Of Decision: 09.07.2024 vs State Of H.P. & Anr on 9 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:4986 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.609 of 2024 Date of Decision: 09.07.2024 .
_______________________________________________________ Man Mohan .......Petitioner Versus State of H.P. & Anr. ....Respondents _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes For the Petitioner: Mr. Maan Singh, Advocate. For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocate Generals, for respondent No.1-State.
_______________________________________________________ Sandeep Sharma, Judge(oral):
By way of instant petition filed under Section 482 of Code of Criminal Procedure, prayer has been made on behalf of the petitioner for quashing of FIR No.58 of 2020, dated 26.10.2020, under Sections 188, 202 and 34 of Indian Penal Code, registered at Police Station Sainj, District Kullu, H.P., as well as consequent proceedings, if any, pending adjudication in the competent court of law.
2. Precisely, the facts of the case, as emerge from the record are that FIR sought to be quashed in the instant proceedings came to be lodged at the behest of respondent/complainant No. 2 Ashraf Zaidi Geelani (hereinafter to be referred to as 'complainant'), 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 11/07/2024 20:30:20 :::CIS 2who, at that relevant time was working as General Manager, (Electrical) Parbati-III, Power Station Bihali, Kullu, alleging therein that .
many employees of Parbati-III, Power Station besides violating social distancing norms and are also roaming without mask, as a result thereof, one labour provided by the contractor and two personnel have been found to be corona positive. Having taken note of aforesaid complaint made by the complainant named hereinabove, FIR sought to be quashed came to be instituted against many workers including petitioner-accused.
3. Though, FIR was lodged on 26.10.2020, but till date neither cancellation report, if any, has been filed nor challan under Section 173 Cr.P.C has been filed in the competent court of law, as a result thereof, great prejudice and harassment is being caused to the petitioner-accused.
4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Maan Singh, learned counsel for the petitioner is that allegations contained in the FIR are false and till date no evidence has been collected by the Investigating Agency to prove allegation that during Covid-19 prescribed norms were violated by the petitioner-accused and on the date of lodging of FIR, he had violated social distancing norms.
::: Downloaded on - 11/07/2024 20:30:20 :::CIS 35. While making this court peruse provision contained under Section 188 IPC, Mr. Maan Singh, learned counsel for the petitioner .
states that though there is nothing on record to establish guilty, if any, of the petitioner-accused in terms of provision contained under Section 188 IPC, but even if it is presumed that he had disobeyed the orders promulgated by public servant, he can only be awarded maximum punishment of one month, but since in the case at hand, till date, charge sheet has not been filed, prosecution, if permitted against the petitioner-accused is bound to fail in terms of provision contained under Section 468 Cr.P.C, which bars court concerned to take cognizance after lapse of period of limitation.
6. Mr. Maan Singh, learned counsel for the petitioner states that since in the case at hand, petitioner-accused has been charged under Section 188 IPC, he can only be punished by one month. He further states that in terms of Section 468 Cr.P.C., prosecution, if any, could have been lodged against him within a period of one year from the date of alleged commission of offence. However, in the instant case, till date charge sheet has not been filed, he states that charge sheet, if any, filed against the petitioner-accused at this stage, otherwise may not be accepted by the court on account of specific bar contained under Section 488 Cr.P.C. While referring to Section 202 IPC, Mr. Maan Singh, learned counsel for the petitioner, submits that ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 4 though no case is made out against the petitioner-accused under aforesaid provision of law, but even if it is presumed that offence .
punishable under Section 202 IPC has been committed by the petitioner-accused, prosecution lodged against him under the aforesaid provision of law is also to bound fail on account of limitation as per Section 468 Cr.P.C.
7. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while refuting the prayer made on behalf of petitioner submitted that there is overwhelming evidence adduced on record suggestive of the fact that on the date of alleged incident, petitioner-accused had violated social distancing norms and he was also not wearing mask, as a result thereof, great danger was caused to co-workers on account of Covid-19. However, Mr. Kohal, after having perused provision contained under Section 468 Cr.P.C. vis-a-
vis Sections 188 and 202 IPC, coupled with the fact that till date charge sheet has not been filed, fairly admits that prosecution, if launched is bound to fail on the ground of limitation.
8. Having heard learned counsel for the parties and perused material available on record, this court finds that though allegations in the FIR sought to be quashed suggests that on the date of alleged incident, petitioner-accused violated social distancing norms and he ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 5 was not wearing mask at his place, as a result thereof, he became liable to be prosecuted under Sections 188 and 202 IPC.
.
9. Though, Mr. Maan Singh, learned counsel for the petitioner attempted to argue that no case, if any, is made out against the petitioner-accused under aforesaid provision of law, but this court without going into the aforesaid aspect of the matter, deems it to consider the prayer made on behalf of petitioner-accused in terms of provision contained under Section 468 Cr.P.C., where specific period of limitation has been provided to launch prosecution, there appears to be merit in the contention of learned counsel for the petitioner. At this stage, it would be apt to take note of Sections 188 and 202 IPC and Section 468 Cr.P.C which read as under:
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 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.
::: Downloaded on - 11/07/2024 20:30:20 :::CIS 6202. Intentional omission to give information of offence by person bound to inform.--
Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information .
respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
468. Bar to taking cognizance after lapse of the period of limitation.
(1)Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2)The period of limitation shall be
-(a)six months, if the offence is punishable with fine only;
(b)one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c)three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3)[ For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.] [Inserted by Act of 1978, Section 33 (w.e.f. 18-
12-1978).]
10. Even if at this stage, it is presumed that petitioner has committed offence punishable under Sections 188 and 202 IPC, he shall be punished with the maximum punishment of one month under Section 188 IPC and for six months under Section 202 IPC. However, limitation as per Section 468 (2) Cr.P.C. to prosecute the petitioner-
accused under aforesaid provision is one year, meaning thereby, cognizance, if any, can be taken under aforesaid provision of law by ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 7 competent court of law within a period of one year from the date of lodging of FIR. Interestingly, in the case at hand, FIR sought to be .
quashed was lodged on 26.10.2020, but till date, charge sheet has not been filed. Though, having taken note of the fact that even after expiry of four years, prosecution has not been able to file the charge sheet, this court is persuaded to agree with Mr. Maan Singh, learned counsel for the petitioner that no case is made out against the petitioner-accused under Sections 188 and 202 IPC, but even otherwise charge sheet, if any, is filed at this stage, may not be accepted by this court on account of its having been filed after expiry of period of limitation as provided under Section 468(2) Cr.P.C.
Section 468 Cr.P.C., as taken note hereinabove, clearly provides that no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. In the offence, where punishment, if any, awarded does not exceed one year, no cognizance can be taken after expiry of one year from the date of lodging of FIR. In the instant case, FIR sought to be quashed has been filed in the year 2020, but till date no charge sheet has been filed and as such, prosecution, if any, launched with the filing of final report Section 173 Cr.P.C is bound to fail.
11. Apart from above, this court finds that in order to constitute offence under Section 188 1PC, there must be ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 8 disobedience of an order promulgated by a public servant. Moreover, mandatory provision of section 195 of Cr.P.C prescribes pre-
.
requisites for taking cognizance of an offence u/s 188 IPC, which mandates the court to take cognizance of this offence only on a complaint filed by the concerned public servant. In the present case, there is no material to show that before registering the case, permission of the concerned jurisdictional Magistrate has been obtained. In such circumstances, applicability of section 188 in the present case is itself erroneous and the respondent has no right to register the case and to investigate the matter.
12. Moreover, this court finds that State of Himachal Pradesh vide notification dated 07.02.2023 (Annexure P-3) issued by the Additional Secretary (Home) to the Government of Himachal Pradesh directed all the District Magistrates except District Magistrate, Hamirpur, to take steps to close/ cancel or withdraw the proceedings if any, initiated against the violators of social distancing norms. In the aforesaid communication, it has been recorded that social distances norms were promulgated to curb the Pandemic and to prevent the spread thereof. Since, to great extent, State has been able to achieve its objective in curbing the Epidemic, Government after having deliberated upon the matter decided to close/ cancel/ withdraw such ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 9 FIRs/cases, registered across the State of Himachal Pradesh, in the public interest.
.
13. Apart from above, this court finds that Additional District Magistrate-cum-CEO, DDMA Kullu, vide communication dated 09.09.2021 (Annexure P-2) has already opined Station House Officer, Police Station Sainj, District Kullu, that no case is made out against the petitioner for his having violated provisions contained under Sections 188 and 202 IPC for want of prosecution under Section 195 Cr.P.C.
14. In totality of facts and circumstances, as noticed hereinabove, no case much less under Sections 188 and 202 IPC is made against the petitioner and as such, no fruitful purpose would be served in case FIR as well as consequent proceedings sought to be quashed are allowed to sustain, rather great prejudice and mental agony would be caused to the petitioner-accused, who otherwise has been facing the heat of criminal proceedings for the last four years on account of FIR sought to be quashed in the instant proceedings.
Needless to say, Hon'ble Apex Court as well as this court in catena of cases have repeatedly held that High Court can exercise power under Section 482 Cr.P.C to prevent the abuse of process of law. Since, prosecution, if permitted to continue is bound to fail for the reasons recorded hereinabove, prayer made on behalf of petitioner deserves ::: Downloaded on - 11/07/2024 20:30:20 :::CIS 10 to be allowed, failing which, petitioner-accused would be put to ordeal of protracted trial which otherwise in all probabilities shall fail.
.
15. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court (supra), FIR No. 58 of 2020, dated 26.10.2020, under Sections 188, 202 and 34 of Indian Penal Code, registered at Police Station Sainj, District Kullu, H.P. , as well as consequent proceedings, if any, pending adjudication in the competent court of law are quashed and set aside, qua the petitioner only.
The petition stands disposed of in the aforesaid terms, alongwith all pending applications.
(Sandeep Sharma), Judge July 09, 2024 (sunil) ::: Downloaded on - 11/07/2024 20:30:20 :::CIS