Jharkhand High Court
Rajeev Kumar Singh vs The State Of Jharkhand .... Opp. Party on 25 September, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2634 of 2024
Rajeev Kumar Singh, Aged about 48 years, S/o Shri Rishidev Singh,
R/o 201, Somnath Apartment, Ghora Chowk, Jugsalai, P.O. & P.S. -
Jugsalai, Jamshedpur, District -East Singhbhum.
.... Petitioner
Versus
The State of Jharkhand .... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Rohit Sinha, Advocate For the State : Mr. P.D. Agrawal, Spl. P.P. .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with a prayer to quash the order dated 25.04.2024 passed by the learned Sessions Judge, Jamshedpur in Criminal Revision No. 365 of 2023;
partly upholding the order dated 06.10.2023, passed in M.C.A. Case No. 4749 of 2023 by the learned Judicial Magistrate -1st Class, Jamshedpur by holding that though there is no material regarding 409/420/269/270 of the Indian Penal Code but the materials in the record are sufficient to prima facie frame charge for the offences punishable under Section 188 of the Indian Penal Code as well as under Section 51(b) of the Disaster Management Act against the petitioner and the learned Sessions Judge observed that it found that the impugned order requires no interference to the extent that there is sufficient material against the petitioner for the offences 1 Cr.M.P. No.2634 of 2024 punishable under Section 188 of the Indian Penal Code as well as under Section 51(b) of the Disaster Management Act, 2005 to proceed in the matter. Further prayer has been made to quash the entire criminal proceeding arising out of Bistupur P.S. Case No. 109 of 2021, corresponding to G.R. Case No. 1441 of 2021 registered under Section 409/420/269/270 of the Indian Penal Code and under Section 51(b) of the Disaster Management Act and under Section 3 of the Epidemic Diseases Act.
3. The brief facts of the case is that Bistupur P.S. Case No. 109 of 2021 was registered inter-alia against the petitioner on the allegation that the co-accused -Dr. Rajesh Mohanty informed the informant that he used to purchase RAT kit from the petitioner, who is the owner of Deva Scientific by paying cash amount and the informant along with his team reached the godown of the petitioner and recovered 3 boxes containing 25-25 kit of Accucare Pathocateh COVID-19 Anitgen Card Test, pre filled extraction tube, sterile swab, droppers and 1 box containing 25 kit of Extraction buffers, droppers and sterile swab. No papers for the aforesaid materials were shown by the petitioner.
4. It is submitted by the learned counsel for the petitioner relying upon the Judgment of this Court in Cr.M.P. No. 2313 of 2022 dated 12.06.2024, in the case of Rajeev Singh Dugal @ Rajeev Duggal Vs. The State of Jharkhand, para -11 & 14 of which reads as under:-
"11. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that so far as the offence punishable under Section 51 (b) of the Disaster Management Act, 2005 is concerned, there is no allegation against the petitioner of refusing to comply with any direction given by or on behalf of the Government or National Executive Committee or State Executive Committee or the District Authority under the Disaster 2 Cr.M.P. No.2634 of 2024 Management Act, 2005. Section 60 of the Disaster Management Act, 2005 reads as under:-
"60. Cognizance of offences.--No court shall take cognizance of an offence under this Act except on a complaint made by--
(a) the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised in this behalf by that Authority or Government, as the case may be; or
(b) any person who has given notice of not less than thirty days in the manner prescribed, of the alleged offence and his intention to make a complaint to the National Authority, the State Authority, the Central Government, the State Government, the District Authority or any other authority or officer authorised as aforesaid." (Emphasis supplied) envisages that cognizance of the offences punishable under Disaster Management Act, 2005 can only be taken on a complaint made by the authority/person mentioned therein but in this case, as no complaint has been filed directly with the court concerned rather an F.I.R. has been lodged; so on both these reasons, the cognizance of the offence punishable under Section 51 (b) of the Disaster Management Act, 2005 taken by the court, firstly because of the same has been taken on the basis of police report and secondly, as there is lack of the essential ingredients to constitute the said offence, is bad in law.
14. It is a settled principle of law that the provisions of section 195 of the Code of Criminal Procedure is mandatory and the non- compliance of which will vitiate the prosecution. It is relevant to refer paragraph-33 of the judgment of the Hon'ble Supreme Court of India in the case of C. Muniappan & Others vs. State of Tamil Nadu reported in (2010) 9 SCC 567 which reads as under:-
"33. Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 CrPC are mandatory. Non- compliance with 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." (Emphasis supplied) Now coming to the facts of the case, in this case as the undisputed fact remains that there has not been any complaint filed by any public servant in terms of Section 195 of the Cr.P.C.. Thus, this Court has no hesitation in holding that the learned Magistrate has committed a grave illegality in taking the cognizance of the offence punishable under Section 188 of 3 Cr.M.P. No.2634 of 2024 the Indian Penal Code more so when there is no allegation regarding the essential ingredients to constitute the offence punishable under Section 188 of the Indian Penal Code as has been referred to in the foregoing paragraphs of this judgment; in the case of Dr. Nishikant Dubey vs. The State of Jharkhand (supra)."
That it being a settled principle of law that a court cannot take cognizance of the offence punishable under Section 188 of the Indian Penal Code except on the basis of the complaint to be filed in writing by the public servant whose order has been violated or anyone superior to it and when the ingredients of the offences punishable under Section 188 of the Indian Penal Code is not made out, the learned Sessions Judge has committed a grave illegality by observing that though undisputedly no written complaint was filed to the Magistrate, rather the case was instituted on the basis of a First Information Report and consequent upon charge sheet having been submitted against the petitioner. Hence, the learned Sessions Judge has committed a grave illegality by allowing the prosecution of the petitioner on the basis of an invalid cognizance.
5. It is next submitted by the learned counsel for the petitioner that as has been held by this Court in para-11 of the aforesaid Judgment that as the cognizance of the offences punishable under the Disaster Management Act, 2005 can only be taken on a complaint made by the authority/person mentioned therein but in this case, undisputedly no complaint has been filed by any such person, hence the cognizance under Section 51 (b) of the Disaster Management Act, 2005 could not have been taken and the same has not been taken rightly by the learned Magistrate and as there is no valid cognizance and ingredients of the offence punishable under Section 51(b) of the 4 Cr.M.P. No.2634 of 2024 Disaster Management Act, 2005 is also not made out even if the entire allegations made against the petitioner are considered to be true. Hence, it is submitted that on this score also, the order passed by the learned Sessions Judge is liable to be quashed and set aside.
6. It is next submitted by the learned counsel for the petitioner that there is no allegation against the petitioner of any specific order promulgated under Section 188 of the Indian Penal Code nor is there any allegation that the petitioner has disobeyed any order promulgated by any public servant. It is next submitted that there is no allegation against the petitioner of refusing to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under the Disaster Management Act, 2005 nor any such direction has been mentioned and in the absence of that also, the offences punishable under Section 51(b) of the Disaster Management Act, 2005 is not made out against the petitioner; even if the entire allegations are considered to be true in their entirety. Hence, it is submitted that the prayer as prayed for by the petitioner in this criminal miscellaneous petition be allowed.
7. The learned Addl. P.P. on the other hand vehemently opposes the prayer as prayed for by this petitioner in this criminal miscellaneous petition.
8. Having heard the submissions made at the Bar and after carefully going through the materials available in the record, it is appropriate to refer to Section 51(b) of the Disaster Management Act, 2005 which reads as under:-
5 Cr.M.P. No.2634 of 2024
"51. Punishment for obstruction, etc.--Whoever, without reasonable cause--
(a) obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years." (Emphasis supplied)
9. A plain reading of Section 51(b) of the Disaster Management Act, 2005 makes it abundantly clear that the same envisages punishment for refusal to comply with any direction given by or on behalf of Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act. So such a direction to the petitioner was a sine-qua-non for prosecution under Section 51(b) of the Disaster Management Act, 2005. As rightly submitted by the learned counsel for the petitioner, there is absolutely no reference of any such direction; which the petitioner refused to comply. Under such circumstances, this Court is of the considered view that the learned Sessions Judge, Jamshedpur committed a grave illegality by observing in the impugned judgment passed in the Criminal Revision No. 365 of 2023 that order impugned before it being passed by the Magistrate refusing discharge of the petitioner requires no interference inter-alia up to the extent that there is sufficient material 6 Cr.M.P. No.2634 of 2024 against the petitioner for having committed the offence inter-alia under Section 51(b) of the Disaster Management Act, 2005.
10. So far as the offence punishable under Section 188 of the Indian Penal Code is concerned, the essential ingredients to constitute the offences punishable under Section 188 of the Indian Penal Code are as follows:-
(i) There was promulgation of an order;
(ii) Such promulgation was made by a public servant;
(iii) Public servant was legally empowered to make the promulgation;
(iv) Promulgation directed not to do certain things or to take certain orders in connection with certain property in his possession or management;
(v) Accused knew of the promulgation;
(vi) Accused disobeyed it;
(vii) Such disobedience caused or intended to cause obstruction, annoyance, injury or risk of the same to a person lawfully employed or caused or tender to cause danger to human life, health or safety, or caused or tender to cause riot or affray.
11. Now coming to the facts of the case, there is no allegation as to promulgation of which order by which public servant was disobeyed by the petitioner. There is no allegation that the petitioner knew promulgation of any such order. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 188 of the Indian Penal Code is not made out. Hence, this Court has no hesitation in holding that the learned Sessions Judge, Jamshedpur committed a grave error by holding that there is sufficient material against the petitioner for having committed the offence punishable under Section 188 of the Indian Penal Code as well.
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12. In view of the discussions made above, this Court is of the considered view that neither the offence punishable under Section 188 of the Indian Penal Code nor the offence punishable under Section 51(b) of the Disaster Management Act, 2005 is made out against the petitioner even though the entire allegations made against the petitioner are considered to be true in their entirety. Hence, the impugned order dated 25.04.2024, passed by the learned Sessions Judge, Jamshedpur in Criminal Revision No. 365 of 2023 in connection with G.R. Case No. 1441 of 2021 is quashed and set aside and the petitioner is discharged in the said G.R. Case No. 1441 of 2021.
13. This criminal miscellaneous petition is allowed to the aforesaid extent only.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 25th September, 2024 AFR/Sonu-Gunjan/-
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