Telangana High Court
Muthamsetti Uma Maheswar Rao And 5 ... vs The State Of Telangana And Another on 19 October, 2022
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No. 5262 OF 2020
O R D E R:
This Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), is filed seeking to quash the Charge Sheet vide C.C No.496/2020 on the file of the Judicial Magistrate of First Class at Sathupally, Khammam District. The petitioners herein are accused Nos.1 to 6 in the said crime. The offences alleged against them are under Sections 353, 188, 269, 271 read with 149 of the Indian Penal Code and Section 3 of the Epidemic Diseases Act, 1897.
2. Heard learned counsel for the petitioners and learned Assistant Public Prosecutor appearing for the State and perused the record.
3. Briefly, the allegations against the petitioners are that on 26.03.2020 at about 7.30 a.m., when seven police personnel who are cited as LWs.1,2 and 4 to 8, went to the premises of the accused which is Madhu Milk Center, Vemsoor Road, Sathupalli, they found that these petitioners were selling milk. It was further found that the petitioners were dispensing the milk from the same vessel to all the persons by ignoring the lockdown instructions as issued by the Central and State Governments. The accused were selling milk to the public violating regulations imposed by the Government. When questioned, the petitioners reacted arrogantly and pushed the seven policemen from the premises. The alleged act of pushing the policemen amounts to deterring the public 2 servants from performing their duties and also disobedience to the quarantine rules punishable under Section 271 of the Indian Penal Code. Further, doing negligent act which is likely spread infection of disease and dangerous to life, punishable under Section 269 of the Indian Penal Code. The Charge sheet and the statements of LWs.1, 2, 4 to 8 who were the policemen and LW3 who is Municipal Commissioner indicate that the petitioners were selling milk to public who gathered and thereby violated the orders promulgated by the Government during the Corona Pandemic situation.
4. The prosecution for an offence under Section 188 of the Indian Penal Code can only be made by filing a private complaint before the concerned Magistrate. As such, the investigation and consequent filing of final report cannot be taken cognizance of by a Court as there is a restriction imposed under Section 195 of Cr.P.C.
5. Section 195 of Cr.P.C. prohibits any Court from taking cognizance of an offence under Section 188 of the Indian Penal Code unless a complaint is made in writing to the said Court by the public servant concerned. Since the Magistrate has taken cognizance of the investigation and consequent filing of final report, the action of the learned Magistrate is contrary to law and invites intervention of this Court. Accordingly, the action of the learned Magistrate taking cognizance against the petitioners for the offence under Section 188 of the Indian Penal Code is to be quashed.
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6. The prosecution has alleged the commission of other offences which are punishable for deterring the public servant from discharging his legitimate duties and also for indulging in acts which are likely to endanger the life of common public since such acts were done during the pandemic time and restrictions by way of Government orders were prevailing.
7. The offence under Section 3 of the Epidemic Diseases Act,1897 relied upon the prosecution, reads as follows;
3. Penalty.--[(1)] Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860). [(2) Whoever,--
(i) commits or abets the commission of an act of violence against a healthcare service personnel; or
(ii) abets or cause damage or loss to any property, shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees. (3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code (45 of 1860) to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.
8. Since the Court cannot try the offence under section 188 of IPC for the reasons aforementioned, the prosecution under section 3 of the Epidemic Diseases Act,1897 cannot be maintained. 4
9. According to the investigation there were several purchasers of milk who gathered at the milk centre where the petitioners were selling milk. However, not even a single customer is examined to show that the petitioners were involved in selling milk. Even according to the description of the police in the charge sheet, the 2nd and 3rd petitioners are students, the 4th, 5th and 6th petitioners are house wives. The narration given by the policemen regarding the incident appears to be improbable. It is unlikely that these seven policemen who were armed with lathis and weapons were pushed away from the premises of the shop where milk was being sold.
The acts of obstructing the duties of the policemen, in fact, according to the investigation, were consequent to the policemen trying to impose the restrictions which were stated in the government orders.
10. The Government of Telangana has issued G.O.Ms.No.45 on 22.03.2020 and the lock down was imposed from 22.03.2020 till 31.03.2020. In the said G.O., congregation of more than five persons in public places was prohibited. Further, the manufacturing units engaged in production of essential commodities such as dairy were permitted to operate and the relevant para in the said G.O reads as follows;
"7. All shops, commercial establishments, offices, factories, workshops, godowns etc. shall close their operations. However, production and manufacturing units which require continuous process such as pharmaceuticals, API etc. may function. Further, manufacturing units engaged in production of essential commodities like dal and rice mills, 5 food and related units, dairy units, feed and fodder units etc. will also be permitted to operate."
11. Since the sale of dairy products by dairy units is permitted to operate, assuming that the petitioners have indulged in selling of milk and dairy products, will not amount to violation of Government orders. It is for the policemen to control the persons who gathered for the purpose of purchasing the milk and dairy products.
12. For the aforementioned reasons, no case is made out against the petitioners to prosecute under sections 353, 188, 269, 271 read with 149 of the Indian Penal Code and Section 3 of the Epidemic Diseases Act, 1897.
13. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioners in C.C.No.496/2020 on the file of the Judicial Magistrate of First Class at Sathupally, Khammam District, are quashed.
Miscellaneous applications pending, if any, in this criminal Appeal, shall stand closed.
________________ K.SURENDER, J Date: 19.10.2022 tk 6 THE HON'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION NO. 5262 OF 2020 Dt. 19.10.2022 tk