Nidhish Kumar M.N v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944** **CRL.MC NO. 4815 OF 2021** **CRIME 495/2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,** **ERNAKULAM** ## **PETITIONER/ACCUSED:** **NIDHISH KUMAR M.N AGED 34 YEARS S/O NANDAKUMAR.M.R,MANDALAMKUNNATH HOUSE, MULLOORKARA.P.O, THRISSUR-680583.** **BY ADV A.ARUNA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SR.PP - SRI. HRITHWIK C.S.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON 24.03.2022 PASSED THE FOLLOWING:** Crl.M.C.4815/21 2 ## **O R D E R** This is a petition filed under Section 482 of the Code of Criminal Procedure seeking to quash the entire proceedings in Annexures-I and II and CC 586/2021 on the file of the Judicial First Class Magistrate-II, Ernakulam and to declare that the petitioner is innocent of all the allegations levelled against him. Annexure-I is the copy of the FIR in crime 495 of 2021 of Ernakulam Central police station. That crime was registered on 07.05.2021 alleging offence under Sections 4(2)(e) and 4(2) (j) of the Kerala Epidemic Diseases Ordinance, Section 269 of the IPC and Section 3(f) of the Kerala Epidemic Diseases Corona Virus Disease (Covid-19) Additional Regulations, 2020. The first information indicates that on 07.05.2021 at about 12 Noon, while the defacto complainant, who is the Sub Inspector of police of Central police station and party were moving on law and order patrol duty, against the restrictions in joining together and organising public functions and conducting unnecessary journeys and in violation of the provisions of the Kerala Epidemic Diseases Ordinance, without following the guidelines issued in operating institutions, with the intention of spreading epidemic among the public, Sunverge Pvt. Ltd., an institution run by the accused Nidhish Kumar was kept open and thus the crime was registered. After investigation the Crl.M.C.4815/21 3 Annexure-II final report was laid basing on which CC 586/2021 was taken on file by the Judicial First Class Magistrate-II, Ernakulam. The petitioner contends that he is totally innocent, that he did not commit any offence, that he is running a business in renewable energy which stands exempted under the guidelines issued by the Ministry of Home Affairs and is entitled to operate even during the covid period, that there is absolutely no material to say that he had done anything dishonestly or intentionally spreading covid virus and therefore, the allegations are farfetched and baseless. Therefore, entire proceedings are sought to be quashed. 2. I heard the learned counsel for the petitioner Smt. Aruna and also the learned Senior Public Prosecutor Sri. Hrithwik. 3. According to the learned counsel for the petitioner, construction of renewable energy is one of the areas which has been exempted from the operation of the restrictions which is evident from Annexure-V order passed by the Ministry of Home Affairs. The charge sheet is lacking in particulars. According to her, it is a shop, which is functioning on the second floor of a building and is the office of the company which is indulged in construction of renewable energy. The Sub Inspector has no case that anyone who had reached there had tested positive or the accused was trying to spread any disease. Therefore, the Crl.M.C.4815/21 4 entire proceedings are sought to be quashed. 4. I have already adverted to the allegations against the petitioner. Annexure-II is the final report laid by the Sub Inspector himself. The allegation is that on 07.05.2021 at 12 Noon while the Sub Inspector was conducting law and order patrol duty, a shop by name Sunverge was found operational, which, according to him, is in violation of the provisions of the Epidemic Diseases Ordinance and Additional Regulations and is also an act attracting offence under Section 269 of the IPC. 5. Section 269 of the IPC says that whoever unlawfully or negligently 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 six months, or with fine, or with both. The ingredients of the offence can be stated thus: - (1) the accused committed some act unlawfully or negligently; - (2) such act was likely to spread infection of a disease dangerous to human life; - (3) the accused knew or had reasons to believe that his act was likely to spread such infections. 6. Going by the Epidemic Diseases Ordinance dt. 10.02.2021, Section 4(2)(e) and 4(2)(j) are also made punishable under Section 5, on Crl.M.C.4815/21 5 conviction punishable with imprisonment for a term which may extend to two years or with fine which may extend to Rs.10,000/- or with both. Section 4(2)(e) prescribes social distancing norms and 4(2)(j) prescribes such other measures as may be necessary for regulation and prevention of epidemic diseases as decided by the Government. 7. The specific case of the petitioner is that he is running a nongovernment company with limited shares by name, Sunverge Pvt. Ltd. functioning on the 2[nd] floor of Asiya Towers, Veekshanam road, Kochi, which is evident from Annexure-IV. Annexure-III is the certificate of recognition which has been incorporated as a private limited company on 11.01.2019. It is recognised as a start-up by the Department of Promotion of Industry and Internal Trade. The start-up is working in 'Renewable Energy Industry' and 'Renewable Energy Solutions', self-certified by them which is evident from Annexure-III certificate issued by the Government of India, Ministry of Commerce and Industry. In other words, it is a startup company working in the field of renewable energy industry and renewable energy solutions. 8. It is not disputed that during the period when covid-19 epidemic had started spreading in March 2020, the Ministry of Home Affairs had issued Annexure-V order stipulating measures for the Crl.M.C.4815/21 6 lockdown and Consolidated Guidelines of Ministry of Home Affairs. Annexure-V is the consolidated revised guidelines on the measures to be taken by all Ministries/Departments of Government of India, State/Union Territories and authorities for containment of covid-19. Various 'does' and 'do nots' have been incorporated in Annexure-V revised guidelines. As rightly pointed out by the learned counsel for the petitioner, clause 16(ii) says that construction activities enlisted thereunder are allowed to operate. Clause 16(ii) is 'construction of renewable energy projects'. That means, the projects working in the field of renewable energy have been given exemption from the restrictions. Of course, such institutions could operate only subject to the given restrictions and guidelines issued by the Ministry of Home Affairs and with regard to the guidelines applicable to containment zones. 9. The respondent does not have a case that on the date of detection of the crime, on 7.05.2021 this particular area was a containment zone. In other words, being a project working in the field of renewable energy, the exemption granted under Annexure-V was applicable to the petitioner; but that has not been considered while registering the crime and conducting investigation. 10. I have no doubt that Annexure-II charge sheet is rather fragile, Crl.M.C.4815/21 7 feeble and weak. There are only two witnesses to the charge sheet who are the Sub Inspector himself who detected the crime and conducted investigation, laid the charge sheet and CPO 12118 of Central police station who had accompanied the Sub Inspector. The prosecution has no case that the petitioner had done anything negligently or with the intention of spreading the epidemic. 11. The learned counsel relying on the decision reported in **HLA Shwe and others v. State of Maharashtra through Police Station [2020 SCC Online Bom 959]** and the decision of the Karnataka High Court in **Crl. Petition No.5185 of 2021** said that the charges will not sustain. 12. It is the settled proposition of law that where the allegations made in the FIR or charge sheet, even if they are taken at its face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, then this Court is justified in invoking its jurisdiction under Section 482 of the Cr.P.C. and to quash the same. Here, I have no doubt that the petitioner is entitled to get an order favourable to him. On 07.05.2021 as per Annexure-V guidelines issued by the Ministry of Home which was applicable to the situation, even though guidelines for the lockdown were invoked, there is absolutely no material to say that the Crl.M.C.4815/21 8 petitioner had done anything negligently or purposely for spreading the epidemic. Secondly, as rightly pointed out, it is not a shop but an office of an unincorporated company functioning in the field of renewable energy, which is exempted from the strict guidelines issued under Annexure-V. Therefore, he was entitled to function his office. There is no allegation that he had done anything for spreading the epidemic. The petitioner was not tested positive for covid-19. In order to attract Section 269 of the IPC, he must have committed any act which he knows or likely to spread infection of any disease which is dangerous to life. Opening the office, _ipso facto_ , is not a reason for alleging offence against him. It is not in evidence that anyone was found in the office. In the above setting, I have no doubt that continuation of the proceedings would be an abuse of the process of the Court and the ends of justice require that the proceedings be quashed. Therefore, entire proceedings initiated against the petitioner in CC 586/2021 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam are quashed and the petitioner shall stand exonerated. The Crl.M.C. is allowed as above. Sd/- **K.HARIPAL JUDGE** okb/23.3.22 Crl.M.C.4815/21 9 ## **APPENDIX OF CRL.MC 4815/2021** |PETITIONER ANNEXURES|| |---|---| |Annexure I|TRUE COPY OF THE FIR NO.495/2021 OF ERNAKULAM| ||CITY POLICE STATION DATED 7.05.2021| |Annexure II|TRUE COPY OF THE CHARGE SHEET NO.514/2021| ||DATED 8.05.2021 SUBMITTED BY THE SUB| ||INSPECTOR OF POLICE, CENTRAL POLICE STATION,| ||ERNAKULAM BEFORE THE JUDICIAL MAGISTRATE| ||COURT-II, ERNAKULAM| |Annexure III|TRUE COPY OF THE CERTIFICATE OF THE| ||RECOGNITION ISSUED BY THE MINISTER OF| ||COMMERCE AND INDUSTRY ON 08.06.2020 WHIC IS| ||VALID UP TO 10.01.2029.| |Annexure IV|TRUE COPY OF THE DETAILS OF SUNVERGE PRIVATE| ||LIMITED DOWNLOADED FROM THE OFFICIAL WEBSITE| ||OF THE MINISTRY OF CORPORATE AFFAIRS IS| ||PRODUCED.| |Annexure V|TRUE COPY OF THE ORDER NO.40-3/2020-DM-I(A)| ||DATED 15.04.2020 ISSUED BY THE GOVERNMENT OF| ||INDIA,MINISTRY OF HOME AFFAIRS| |Annexure VI|TRUE COPY OF THE G.O(RT)N0.404/2021/DMD DATED| ||06.05.2021.|