Delhi High Court: C. Hari Shankar, J., granted an ad-interim injunction and restrained police from making any investigation against Ganga Ram Hospital in an FIR filed against the hospital by the Delhi Government.
Ganga Ram Hospital — Petitioner sought interim stay of all proceedings consequent to FIR alleging commission of offence under Section 188 of Penal Code, 1860.
Petitioner submitted that a reading of guidelines issued on 18th May, 2020 by ICMR revealed that it was only by the said guidelines that a specific requirement was incorporate, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or asymptomatic were to be conducted by “real -time RT-PCR test only”.
On April, 20th, 2020, GNCTD issued an Order wherein following was informed:
GNCTD had created a COVID App, in which all Government/private COVID testing labs and COVID hospitals were required to fill the requisite data, to ensure proper follow-up of COVID-19 cases.
The Order required all concerned government/private hospitals to get the requisite data filled on the COVID App immediately on regular basis to supplement efforts for checking the spread of COVID-19, and also directed all government/private labs to update the COVID App on regular and immediate basis, after submission of each and every sample for testing.
On April, 30th, 2020, an Order was issued by GNCTD, wherein concern was expressed with regard to the pendency of test samples sent by districts in hospitals to various labs for COVID-19 testing, multiplicity in reports, resulting in difficulties and reconciliation of data and assessment of the number of people getting infected with COVID-19 virus.
Fulcrum of Controversy
RT-PCR App is the fulcrum of controversy in the present matter. This app was aimed at streamlining data flow of tested persons, reducing data entry at labs, speeding up declaration of results and enabling data flow of suspected cases into the system for further action at the district level.
Specimen Referral Form and the above-stated app are similar except for the fact that the app is an electronic version of the said form.
Standing Counsel, Rahul Mehra was also unable to pick out the difference between the RT-PCR app and Specimen Referral Form.
Further on 7th May, 2020 it was issued by Nursing Home Cell of the Directorate General of Health Services, GNCTD (DGHS) that no manual Sample Requisition Form will be accepted and private lab concerned would receive samples only after conforming that the details had been entered on the RT-PCR App.
Show Cause Notice to Ganga Ram Hospital
Petitioner was issued — with following of the ICMR testing protocol for testing of asymptomatic patients.
On 3rd June, 2020, an Order was issued by the DGHS observing that, in apparent disobedience of the office order dated 6th May, 2020, proscribing use of manual/physical SRFs at sample collection centres with effect from 8th May, 2020 and usage, instead of the RT-PCR App, petitioner was still not using the said App.
Petitioner was directed to explain, within two days, why it had not started using the RT-PCR App. The petitioner was also directed to stop RT-PCR sampling of COVID-19 suspects/contact cases, with immediate effect.
Petitioner informed the Court that it had identified a Data Entry Operator, for registration of the RT-PCR App as well as nine phlebotomists, whose details were annexed. Once the Data Entry Operator was registered, the petitioner undertook to enter all past entries in the RT-PCR App and to ensure compliance, with the said requirement, in future.
On 5th June, 2020 an FIR was registered against the petitioner from the office of the Deputy Secretary, health, GNCTD, alleging commission of offence under Section 188 IPC (Disobedience to order duly promulgated by public servant).
Why has the present petition been filed?
By the present petition, petitioner prays for quashing of the above-stated FIR, issuance of an appropriate write, Quashing of the Order wherein the petitioner has been prohibited from conducting RT-PCR sampling for COVID-19 suspects/contact cases, has become infructuous, as the said order has been withdrawn and the petitioner has been permitted to conduct sampling.
R. Suri and Sidharth Luthra, Senior Counsel for the petitioner and Rahul mehra, Senior Standing Counsel (Criminal) for GNCTD/State.
Bench stated that the only allegation in the impugned FIR was clearly in violation by the petitioner with regard to the orders requiring collection of samples for COVID-19 testing, to be done only through RT-PCR App.
Further the Court stated that, there is no reference in the FIR, to this infraction, on the part of the petitioner, in collecting samples through the RT-PCR app, having caused or obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed, or having caused, or attempted to cause, danger to human life, health or safety, or riot or affray.
Disobedience of an order, promulgated by a public servant, is, clearly, by itself not an offence under Section 188 of the IPC.
Consequently, it has to be held that the allegations in the FIR do not disclose the commission of a cognizable offence.
An FIR need not be an encyclopaedia or contain, within it, all minute factual details, regarding the incident, which is alleged to amount to an offence. Even so, the facts, stated in the FIR, and the allegations contained therein, must disclose the commission of a cognizable offence. Else, the very registration of the FIR would be unjustified.
In Court’s opinion, the impugned FIR did not allege any impediment to human health, or loss to human life, having resulted as a consequence of the default, on the part of the petitioner, in complying with the requirement of using the RT-PCR App.
Court is aware of the fact that Regulation 18 of the 2020 COVID Regulations contains a warning, to the effect that any person/institution/organization found violating any provision of the said Regulations would be deemed to have committed an offence punishable under Section 188 of the IPC.
In the present case, violation, by the petitioner is alleged, not directly of the 2020 COVID Regulations, but of governmental Office Orders, issued thereunder.
“…criminal process cannot be initiated, against an institution, merely on the ground that such violation has taken place, sans any allegation that it has led to one of the consequences statutorily engrafted in Section 188 of the IPC.”
Thus, in view of the above terms, an ad-interim injunction, restraining the Police from investigating, consequent in the impugned FIR seems to be justified.
Petitioner-hospital is a frontliner in the war against COVID-19 pandemic.
Balance of convenience would also be in favour of interdicting, for the present, any investigation, consequent to the impugned FIR. As and when the present petition is finally decided, if it is found that no case, for quashing the impugned FIR, or the investigation following thereupon, is made out, the Police could always resume its investigation.
Hence, the stay application was allowed. [Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662 , decided on 22-06-2020]