Dr. Aliashraf v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE24[TH]DAYOFMAY2023/3RDJYAISHTA,1945 CRL.MCNO.16OF2023 ``` ``` AGAINSTCCNO.269/2021OFJUDICIALMAGISTRATEOFFIRSTCLASS -I,TIRUR CRIMENO.247/2020OFTIRURPOLICESTATION,MALAPPURAM ``` ## **`PETITIONER/1ST ACCUSED :`** ``` DR.ALIASHRAF AGED60YEARS S/OKUNJIMOIDU,THAYYILKIZHAKKETHILHOUSE, NADUVILANGADI,POOKAYILP.O, – TIRUR,MALAPPURAM,PIN676107 ``` ``` BYADVS.MOHAMMEDALRAFI ``` ## **`RESPONDENT/STATE :`** ``` STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR, HIGHCOURTOFKERALA, - ERNAKULAM,PIN682031 ``` ``` SRITRRENJITH,SR.GP ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 24.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` ``` CRL.MCNO.16OF2023 ``` ``` 2 ``` ## **ORDER** The petitioner herein is the 1st accused in C.C.No. 269/2021 on the file of the Judicial Magistrate of the First Class -I, Tirur. In the aforesaid case, he is accused of having committed offences punishable under Sections 143, 147 and 269 r/w. Section 149 of the IPC and Section 118(e) of the Kerala Police Act, 2011. 2. The short facts of the case are as under: The petitioner, a person following the religion of Islam, was working as Assistant Surgeon at District Hospital, Tirur. On 26.3.2020, at about 4 pm, he, along with the rest of the accused, formed themselves into an unlawful assembly and proceeded to the Pookayil Juma Masjid situated within the limits of Tirur Municipality. The District Collector, Tirur, had issued an order prohibiting the congregation of persons to prevent the spread of the COVID-19 virus, and it was in violation of the aforesaid order that the persons had congregated in the mosque under the leadership of the petitioner for offering prayers to the almighty. 3. The learned counsel appearing for the petitioner submits that the ``` CRL.MCNO.16OF2023 ``` ``` 3 ``` allegations leveled in the final report, even if taken at its face value and taken as true will not attract the offences alleged in the charge. According to the learned counsel, the prosecution has no case that the petitioner was suffering from any disease dangerous to life and by his actions, he was likely to spread any infection. It is also submitted that no materials have been collected by the prosecution to substantiate that by the action on the part of the petitioner in offering his prayers, some disease or ailment was contacted by any individual. According to the learned counsel, in that view of the matter, the offence under Section 269 will not be attracted. The learned counsel would further point out that as the records would not disclose that the petitioner and the other accused had combined together for the purpose of committing an offence, the offences under Sections 143, 147 and 149 of the IPC will not be attracted. 4. The learned Public Prosecutor has opposed the submissions. It is submitted that with a view to prevent the spread of the pandemic, the District Collector had issued an order invoking his powers under Section 144 of the Cr.P.C. Admittedly, the petitioner, along with a group of persons, offered prayer in the mosque and the act committed by the petitioner was so rash and negligent that it may have led to the spread of the virus. 5. I have anxiously considered the submissions advanced and have gone through the entire records. ``` CRL.MCNO.16OF2023 ``` ``` 4 ``` 6. There is no dispute with regard to the fact that an order under Section 144 of the Cr.P.C. issued by the District Collector was in force on 26.3.2020. 7. In order to attract Section 269 of the IPC, there must be materials to substantiate that the petitioner had unlawfully or negligently committed any act which is and which he knows or has reasons to believe to be likely to spread the infection of any disease dangerous to life. The Section is framed in order to prevent people from doing acts that are likely to spread infectious diseases. This is on the premise that the welfare of society is the primary duty of every civilized State. In the case on hand, the prosecution has no case that either the petitioner or the persons who were with him were suffering from any sickness or ailment. There is also no case for the prosecution that by the action of the petitioner herein, some other person had contracted any infection of any disease. If that be the case, Section 269 of the IPC will not have any application. 8. Section 143 of the IPC punishes tumultuous assemblies as they endanger public peace. The essence of an offence under Section 143 is the combination of five or more persons united for the purpose of committing a criminal offence. The consensus of purpose is itself an offence distinct from the criminal offence which the assemblage of persons agree and intend to commit. Essentially, what the provision requires is that in order to be illegal, it must be ``` CRL.MCNO.16OF2023 ``` ``` 5 ``` inspired by an illegal object as specified in Section 141 of the Cr.P.C. I have already held that offence under Section 269 of the IPC will not be attracted in the instant case. If that be the case, as the combination of persons was not to commit a criminal offence, Section 143 of the IPC will not be attracted. Section 147 of the IPC punishes a person who is guilty of rioting. There is no case that any act of rioting was committed by any person. In order to attract Section 149 of the IPC, the prosecution must have a case that a) there is an unlawful assembly b) an offence was committed by a member of an unlawful assembly and c) such offence must have been committed in prosecution of the common object of such assembly. In view of the discussion above, Section 149 of the IPC will also not be attracted as no offence was committed by any individual. If the prosecution has a case that the petitioner herein had violated the order passed under Section 144 of the Cr.P.C., he was liable to be proceeded against under Section 188 of the Cr.P.C. There is no such charge in the final report. 9. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in **State of Haryana v. Bhajan Lal[1]** . A note of caution was, however, added > 1 [1992 Supp (1) SCC 335 ``` CRL.MCNO.16OF2023 ``` ``` 6 ``` that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by the Apex Court has been detailed in paragraph 102 and 103 of the judgment, which reads as under: **102.** In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. - (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. - (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. - (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. - (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. ``` CRL.MCNO.16OF2023 ``` ``` 7 ``` - (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. - (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. - (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. **103.** We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. 10. Having considered the facts of the instant case, in the light of the principles laid down by the Apex Court in **Bhajan Lal** (supra), I am of the view that the uncontroverted allegations made in the FIR and the charge and the evidence collected in support of the same do not disclose the commission of any offence against the petitioner. In that view of the matter, this Court will be well justified in invoking its powers under section 482 of the Code to quash the ``` CRL.MCNO.16OF2023 ``` ``` 8 ``` criminal proceedings against the petitioner. Resultantly, this petition will stand allowed. Annexure B Final Report and all further proceedings in C.C.No.269/2021 on the file of the Judicial Magistrate of the First Class-I, Tirur, insofar as it concerns the petitioner will stand quashed. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS ``` CRL.MCNO.16OF20239 ``` ## **`APPENDIX OF CRL.MC 16/2023`** ``` PETITIONERANNEXURES: ``` ``` AnnexureACERTIFIEDCOPYOFTHEF.I.RINCRIMENO. 247/2020OFTIRURPOLICESTATION AnnexureBCERTIFIEDCOPYOFTHEFINALREPORTINCRIME NO.247/2020OFTIRURPOLICESTATION AnnexureCCERTIFIEDCOPYOFTHECOMPLAINTOFTHEFIRST INFORMANTINCRIMENO247/2020OFTIRURPOLICE STATION AnnexureDCERTIFIEDCOPYOFTHESTATEMENTSOFTHE WITNESSESINCRIMENO247/2020OFTIRURPOLICE STATION ```