Madras High Court
Mohanasundaram vs The State Represented By on 29 April, 2022
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.O.P.No.10123 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.04.2022
CORAM
THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.O.P.No.10123 of 2022
Mohanasundaram,
S/o.Subramaniam ... Petitioner
Vs
The State Represented by,
The Inspector of Police,
Negamam Police Station,
Coimbatore District.
(Crime No.145 of 2020) ... Respondent
Prayer: Criminal Original Petition is filed under Section 482 of the Criminal
Procedure Code, pleased to call for the records relating to the impugned FIR
in Crime No.145 of 2020 on the file of the respondent police and quash the
same.
For Petitioner : Mr.K.Govi Ganesan
For Respondent : Mr.A.Gokulakrishnan
Additional Public Prosecutor
1/10
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.10123 of 2022
ORDER
This Criminal Original Petition has been filed, to call for the records relating to the impugned FIR in Crime No.145 of 2020 on the file of the respondent police and quash the same.
2. The brief facts of the case is that the respondent has suo motu registered a case in Crime No.145 of 2020 against the petitioner for the offence punishable under Sections 188, 271 and 291 of IPC. The allegation in the complaint against the petitioner is that on 31.03.2020, when the Inspector of Police, Negamam Police Station, along with two other policemen were on patrol duty to see whether anyone was violating the Section 144 Cr.P.C issued by the Central and State Government to prevent the spread of the Corona, the petitioner was found roaming near Kamanaickenpalayam check post and when the respondent had enquired the petitioner, he has not stated any reasons. Based on the complaint given by the Inspector of Police, a case in Crime No.145 of 2020 was registered for the offences punishable under Sections 188, 271 and 291 of IPC. 2/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022
3. The learned counsel appearing for the petitioner would submit that the petitioner was simply riding his two wheeler and instead of registering the case, the respondent ought to have warned and asked him to be in door only. He would further submit that the respondent cannot straight away register the case under Section 188 of IPC and there is no material to show that the petitioner had intentionally come out to spread infection to others.
4. The learned counsel appearing for the petitioner would further submit that the petitioner has decided to go abroad for work and also applied for passport. He would further submit that the Government has also issued orders directing the withdrawal of cases registered during Covid-19 pandemic period and the withdrawal cases have registered for violation of Covid-19 pandemic rules.
5. The learned counsel appearing for the petitioner would further submit that the facts of the case are similar to the case covered in the decision reported in 2018 2 LW (Crl) 606 [Jeevanandham and others Vs The Inspector of Police Velayuthampalayam Police Station, Karur District] dated 20.09.2018 and in Sri Raja Vs Inspector of Police, 3/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 Sivakasi Town Police Station Virudhunagar District and other in Crl.O.P(MD).No.7922 of 2019 etc batch dated 30.08.2019.
6. The learned Additional Public Prosecutor appearing for the respondent would submit that the petitioner was found riding his motor cycle on 31.03.2020 during Covid-19 pandemic/lockdown period, in defiance the Standard Operating Procedure (SOP) issued by the Central and State Government. He would further submit that the facts of this case are covered under the Judgment referred to above.
7. Heard both sides and perused the materials available on record.
8. In the Judgment reported in 2018 2 LW (Crl) 606 [Jeevanandham and others Vs The Inspector of Police Velayuthampalayam Police Station, Karur District] dated 20.09.2018, it has been held that the police has no right to file a case under Section 188 of IPC and to investigate the same without getting proper permission from the concerned Jurisdictional Magistrate. Here, there is no material to show that before registering the case, permission of the concerned jurisdictional Magistrate has been 4/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 obtained. In such circumstances, the respondent has no right to register the case and to investigate the matter.
9. Further, there is no material to prove that the petitioner had knowingly attempted to spread infection of any disease dangerous to life and it is also not the case of the respondent that at the time of the incident, the petitioner was affected by Covid-19. So, the contention that coming out during pandemic period will spread the disease is without any basis.
10. Section 188 of IPC defines disobedience to order duly promulgated by public servant to spread infection 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, 5/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 annoyance or injury, to any persons 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 tends 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."
11. Section 271 of IPC defines disobedience to quarantine rule as under:-
"271. Disobedience to quarantine rule:
Whoever, knowingly disobeys any rule made and promulgated [by the [***] Government [***] for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.6/10
https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 Classification of Offence:- The offence under this section is non-cognizable, bailable, non-compoundable and triable by any Magistrate."
12. Section 291 of IPC defines Continuance of nuisance after injunction to discontinue as under:-
“291. Continuance of nuisance after injunction to discontinue:
Whoever, repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall be punished with simple imprisonment for a term which may extend to six months, or with fine, or with both.
Classification of Offence:- The offence under this Section is non-cognizable, bailable, non-compoundable and triable by any Magistrate."7/10
https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022
13. Considering the nature of allegations and the offence involved in this case, this Court is of the opinion that coming out of the house during pandemic period should not held to be a reason for spoiling the future of the petitioner. Unintended casual act, without any act of violence, should not take away the future of the petitioner. Moreover, it is also brought to the notice of this Court that the Government is also going to drop all these cases, which have been registered during the pandemic period against the public.
14. Taking all these aspects into account, this Court is of the considered view that the proceedings pending in Crime No.145 of 2020 dated 31.03.2020 on the file of the respondent is nothing but abuse of process of law and is hereby quashed. This Criminal Original Petition stands allowed.
29.04.2022 Internet :Yes/No Index : Yes/No Speaking/Non-Speaking order rgm/mp 8/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 To
1.The Inspector of Police, Negamam Police Station, Coimbatore District.
2.The Public Prosecutor, High Court of Madras.
A.D.JAGADISH CHANDIRA.J, 9/10 https://www.mhc.tn.gov.in/judis Crl.O.P.No.10123 of 2022 rgm/mp Crl.O.P.No.10123 of 2022 29.04.2022 10/10 https://www.mhc.tn.gov.in/judis