Fahad and others v. State of Kerala and Ubaid P.B (Crl.M.C No. 380 of 2022)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 1[ST] DAY OF JULY 2022 / 10TH ASHADHA, 1944** **CRL.MC NO. 380 OF 2022** **AGAINST THE ORDER/JUDGMENT IN SC 383/2021 OF ASSISTANT** **SESSIONS COURT, CHAVAKKAD** ## **PETITIONERS/ACCUSED 1 TO 4:** 1 FAHAD AGED 21 YEARS S/O. KABEER , KUNJIRAKATH HOUSE, BLANGAD DESOM, KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR DISTRICT. 2 AKKU @ AKBAR AGED 21 YEARS S/O. ASHARAFF, KARAPPAM HOUSE, PARAMPADI DESOM, KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR DISTRICT 3 ABDUL JAVAD AGED 23 YEARS S/O. ABDUL MAJEED, PARATT HOUSE, BLANGAD KATTIPALLI DESOM, KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR DISTRICT 4 SHEHEEM AGED 23 YEARS S/O. BASHEER, AYAKKAL HOUSE, BLANGAD KATTIPALLI DESOM, KADAPPURAM VILLAGE, CHAVAKKAD, THRISSUR DISTRICT BY ADVS. C.DHEERAJ RAJAN ANAND KALYANAKRISHNAN ## **RESPONDENT/STATE AND DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN CODE 682 031 2 UBAID P.B AGED 20 YEARS Crl.M.C No. 380 of 2022 2 S/O. BAKKERSHAH, PUZHANGARAILLATH HOUSE, KADAPPURAM VILLAGE, ASUPATHIRIPADI DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADV ABRAHAM MATHAN ADV NIMA JACOB -PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C No. 380 of 2022 3 ## **ORDER** The petitioners are the accused in Crime No.197/2020 of Chavakkad Police Station, which is now pending as S.C No. 383/2021 before the Assistant Sessions Court, Chavakkad. The offences alleged against the petitioners are under Sections 341, 323, 324, and 308 read with Sections 34, 188, and 270 of IPC. In addition to that 118(e) of the Kerala Police Act and the offence under Section 3 of the Epidemic Diseases Act, 1897 were also charged against the petitioners. 2. The prosecution case is that, on 25.03.2022 at 8.30 p.m., during the period of lockdown declared in connection with the Covid-19 pandemic, the petitioners willfully disobeyed the regulations regarding the lockdown and assaulted the 2[nd] respondent/defacto complainant with iron pipes and fist, while he was travelling on his bike. Annexure 1 is the FIR and Annexure 2 is the final report submitted by the Police. This Crl.M.C. is filed for quashing all further proceedings pursuant to the same. 3. Heard Sri.Dheeraj Rajan, learned counsel appearing for the petitioners, Smt.Nima Jacob, learned Public Prosecutor for the Crl.M.C No. 380 of 2022 4 State and Sri.Abraham Mathan, learned counsel appearing for the 2[nd] respondent.. 4. The learned counsel for the petitioners contends that the dispute between the parties has been settled amicably. To substantiate the aforesaid settlement, Annexure 3 affidavit sworn by the 2[nd] respondent has been produced, wherein the 2[nd] respondent clearly confirmed the aforesaid settlement. It is also stated therein that he has no subsisting grievances against the petitioners herein. He also expressed his no objection in quashing the proceedings against the petitioners. Learned counsel for the 2[nd] respondent also confirmed the same. The learned Public Prosecutor upon instructions, submitted that the veracity of the aforesaid settlement was verified by the Station House officer concerned, and the same was found to be genuine. 5. It is true that a settlement has arrived, and the same was found to be genuine. Based on the aforesaid settlement, the offences under Sections 341, 323, 324, and 308 read with Section 34 of IPC can be quashed as the same is pertaining to a dispute which is private in nature. Therefore, with regard to the aforesaid offences, the principles laid down in **Gian Singh v. State of Punjab, and Another [2012(4) KLT 108]** can be applied. Crl.M.C No. 380 of 2022 5 6. However, a further question arises regarding the offences under Section 3 of the Epidemic Diseases Act and Section 188, 270 of IPC. Incidentally, the question relating to the offence under Section 118(e) of the Kerala Police Act is also to be considered. The learned counsel points out for the petitioners that Section 3 of the Epidemic Diseases Act and Section 188 are interlinked. He brought my attention to the contents of Section 3 (1) of the Epidemic Diseases Act, which 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.” It is evident from the nature of allegations that what is attracted here is the offence contemplated under Section 3(1) of the Act. As per the said provision, a person disobeying the aforesaid regulations is deemed to have committed the offence punishable under Section 188 of IPC. In this case, the offence under Section 188 of IPC is also explicitly mentioned, presumably because of the reference to the said provision in Section 3 of the Epidemic Diseases Act. It is pointed out that the prosecution for the offence under Section 188 is subject to the restriction contained under Section 195 of Cr.P.C. As Crl.M.C No. 380 of 2022 6 per Section 195(1)(a), a prosecution against the offence under Section 188 can be launched only based on a complaint in writing made by the Officer whose order is alleged to have been violated. In this case, the prosecution has been lodged based on a final report submitted by the Police, whereas, the specific allegation is that the petitioners have violated the Covid-19 protocol, which was issued by a different Authority. 7. There is yet another aspect which relevant in this regard. As per section 3A (i) of the said Act, certain offences are made cognizable, and as per section 3A(ii) thereof, the investigation for the same has to be conducted by a police officer not below the rank of Inspector. The crucial aspect to be noticed is that the stipulations in section 3A are applicable only in respect of offences punishable under sections 3(2) and 3(3) of the said Act, whereas, the allegation in this case is pertaining to the commission of an offence under section 3(1). Non-inclusion of the offence punishable under section 3(1) in section 3A clearly fortifies the view taken by me that the prosecution has to be launched for the said offence only in the manner prescribed under section 195(1) (a) of Cr.P.C. Therefore, I find some force in the contention put forward by the learned counsel for the petitioners as the offence under Section 3 of the Epidemic Crl.M.C No. 380 of 2022 7 Diseases Act, read along with Section 188 of IPC, cannot be invoked unless otherwise than contemplated under Section 195 Cr.P.C. In such circumstances, the prosecution for the aforesaid offences is to be quashed. 8. Next offence is under Section 270 of the India Penal Code. The aforesaid provision reads as follows. “Malignant act likely to spread infection of disease dangerous to life.—Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The said offence can be stated to be attracted when a person malignantly does any act which he knows or has reason to believe that it is likely to spread the infection of any disease, thereby. In this case, the prosecution has no case that the petitioners were affected with any infection or contiguous disease and have done something with the knowledge of the same. There is also no allegation against the petitioners that they have done some act that he knows will spread infection. In my view, section 270 would get attracted only in a case where the accused with malignant intention to spread the disease or with the knowledge of the same does some Crl.M.C No. 380 of 2022 8 act. In this case, the allegation is that they have violated the restrictions imposed as part of the Covid-19 protocol, and the violation of the same is governed by a Special Statute, namely Epidemic Diseases Act. Therefore, the offence under section 270 of IPC, which is a general provision, would not get attracted. 9. What remains is 118(e) of the Kerala Police Act. The aforesaid provision reads as follows. “118. Penalty for causing a grave violation of public order or danger- xxxxx xxxxxx xxxxx (e) knowingly does any act which causes danger to public or failure in public safety; or” 10. In this case, the allegations against the petitioners are that they have violated the Covid protocol and assaulted the 2[nd] respondent. As mentioned above, concerning the offences for violating the Covid Protocol, different provisions are attracted which are coming under special enactment. In such circumstances, Section 118(e), a general provision, cannot be made applicable when a special statute governs the alleged offence. Therefore, the prosecution under Section 118(e) of the Kerala Police Act is not legally sustainable. Crl.M.C No. 380 of 2022 9 11. Thus, on examining the facts of the case, it can be seen that the prosecution for the offences under Section 3 of the Epidemic Diseases Act, Section 188 and 270 of IPC, and Section 118(e) of the Kerala Police Act are not legally sustainable. As regards the offences under Sections 341, 323, 324, and 308 read with Section 34 of IPC, I have already found that the said proceedings can be quashed based on settlement. Thus it leads to the conclusion that the Annexure-2 final report in its entirety is to be quashed for different reasons as mentioned above. In the result, this Crl.M.C is allowed, and Annexure-2 final report submitted in Crime No. 197/2020 of Chavakkad Police Station and all further proceedings in S.C 383/2021 pending before the Assistant Sessions Court, Chavakkad are hereby quashed. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk Crl.M.C No. 380 of 2022 10 ## **APPENDIX OF CRL.MC 380/2022** PETITIONER ANNEXURES Annexure 1 CERTIFIED COPY OF FIR IN CRIME NO. 197 OF 2020 OF CHAVAKKAD POLICE STATION DATED 26-03-2020 ALONG WITH FIS Annexure A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 197 OF 2020 FILED BEFORE THE J.F.C.M CHAVAKKAD DATED 16-092020 Annexure 3 TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 08-01-2022