Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. refused the application for grant of leave to appeal against acquittal and dismissed the petition in limine.

The factual matrix of the case is that the respondents on 4-5-2013 at 7.15 p.m. entered into the prohibited area without permission and violated the promulgated order of the Government and thereby committed the offence under Section 188 IPC.

The counsel Vikram Sharma appearing for the petitioner submitted that the Judicial Magistrate First Class was absolutely unjustified in acquitting the respondents of the offence under Section 188 IPC on the ground that despite sufficient opportunity, no witnesses were examined to support the case of the prosecution as no reasonable opportunity was granted to adduce evidence.

The Court relied on the judgment titled C. Muniappan v. State of T.N., (2010) 9 SCC 567 and Babita Lila v. Union of India, (2016) 9 SCC 647 held that the offence under Section 188 IPC can be taken cognizance of by the Magistrate under Section 190 CrPC except in accordance with Section 195(1)(a)(i) CrPC and unless complaint in writing is filed by the public officer concerned, on the basis of police report, offence under Section 188 IPC cannot be taken cognizance of by the jurisdictional Magistrate. He further held that this principle has to be given a strict interpretation and not a liberal one and hence trial of the respondents for the offence under Section 188 IPC on the basis of police report and charge-sheet filed subsequent thereto by the State police was absolute without jurisdiction and without authority of law.

In view of the above, application for grant of leave to appeal against acquittal stands refused and the petition dismissed.[State of Chhattisgarh v. Rikki Sahu, 2020 SCC OnLine Chh 110, decided on 14-07-2020]

Case BriefsCOVID 19High Courts

Allahabad High Court: The Division Bench of Sunita Agarwal and Saumitra Daya Singh, JJ., granted partial relief to the petitioners booked for violating social distancing norms while distributing food packets.

Petitioners sought quashing of the First Information Report registered for offences under Section 188 and 269 Penal Code, 1860.

The allegation in the FIR is that the protocol of social distancing has not been followed by the crowd of 8-10 people who were at a public place and the petitioners against whom the FIR has been filed were members of the said crowd.

Bench on noting the above facts and circumstances, stated that it does not find any allegation of an untoward incident happening.

Further the Court added that, there is no doubt that the denizens of the city are under obligation to follow the protocol of social distancing in collective fight of the country with pandemic Covid-19. Every person is responsible to be aware of the protocol and see that other follow it strictly.

However, in Court’s opinion, restraining the said persons who for some reason violated the protocol of social distancing may further aggravate the Corona crisis.

“Create awareness and consciousness amongst people rather than putting them in jails or lockups which are already over crowded.”

Petitioners stand is that they were distributing the food packets amongst the poor persons in the locality during the lockdown and in the course of the said distribution suddenly some people were collected on the spot.

Thus, Court held that the petitioners should be granted one opportunity to mend themselves and in therefore they shall file an undertaking stating that they will follow all norms and protocol of COVID-19 and will not breach them in future.

“petitioners shall not be arrested in the aforesaid case till submission of the police report under Section 173(2) Cr.P.C. provided they cooperate with the investigation.”

In view of the above, petition was disposed of. [Munna v. State of U.P., 2020 SCC OnLine All 810 , decided on 19-06-2020]

Case BriefsCOVID 19High Courts

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.

Background

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.

Decision 

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]

Case BriefsHigh Courts

Delhi High Court: The Bench of Sanjeev Sachdeva, J. allowed a petition filed against order of the trial court whereby it has taken cognizance of offence under Section 188 IPC (disobedience to order duly promulgated by public servant) against the petitioner.

The District Disaster Management Authority carried out an inspection of “M Cinemas” of the petitioner and identified certain shortcomings. The premised was directed to be closed for visitors. On petitioner’s failure to comply with the directions, CEO of the Authority filed a complaint with SHO of the police station concerned. An FIR was registered and chargesheet was assailed by the police, based on which cognizance was taken by the Magistrate vide the impugned order. Aggrieved thereby, the petitioner was before the High Court.

The petitioner was represented by Nina R. Nariman with Vrinda Bhandari and Geetika Kapur, Advocates. It was submitted that in terms of Section 195 CrPC, no Court can take cognizance of an offence under Section 188 IPC except on complaint of public servant concerned. It was contended that no complaint satisfying requirements of Section 2(d) CrPC was filed in the present case. As per Section 2(d), a “complaint” has to be in writing to the Magistrate.

The High Court held that the complaint made by CEO of the Authority was a complaint made to SHO which could not be treated as a complaint to the Magistrate so as to satisfy the requirements of Section 195 (1)(a)(i) CrPC. It was observed, “Non-compliance of Section 195 is a defect which cannot be cured subsequently as was sought to be done by the prosecution by filing a supplementary chargesheet or by way of a complaint given by the public servant after cognizance has been taken.” Holding that the present proceedings suffered from infraction of Section 195, the Court allowed the petition and quashed the impugned order. [Mohan Kukreja v. State (NCT of Delhi), 2019 SCC OnLine Del 6398, decided on 08-1-2019]