Dismissing five cases where the police had booked individuals for flouting the lockdown last year, a court has held that charges of spreading infection could not be attracted in the case as the accused had not been tested for Covid-19.
“Moreover, there is no documentary evidence for showing that the accused persons had been tested positive for Covid-19. In absence of such material on the record, it can not be said that the accused persons had indulged in any act which was likely to spread infection of Covid-19,” the Vikhroli magistrate court said recently.
In each case, the police had submitted a chargesheet invoking Section188 (disobedience to order duly promulgated by public servant), Section 269 (negligent act likely to spread infection of disease dangerous to life) and Section 270 (malignant act likely to spread infection of disease dangerous to life) of the IPC and provisions of the National Disaster Management Act, alleging that during the Covid-19 lockdown, the accused were found roaming about without masks and reasonable cause.
The prosecution sought commencement of proceedings against the accused, but the court held that the investigating authorities acted without jurisdiction in registering the FIR based on a complaint by the police and added that the investigation conducted by the police was also without jurisdiction.
“There is no sufficient grounds for proceeding against the accused persons for the offence punishable under Section 188, 269, 270, 271 of the Indian Penal Code and Section 51(b) of National Disaster Management Act,” the court said.
The court further observed that an FIR cannot be registered by the police under Section 188. It said that it was obligatory that the “public servant” before whom the act is committed should file a complaint before the jurisdictional magistrate. “Hence, registration of an FIR for an offence under Section 188 … is not permitted in law at the instance of police … ,” the court said.
On the offence under the Disaster Management Act, the court said the complaint had to be made by a national, state or district authority.
The court observed that in contravention of the provisions of the act, the police had not given a minimum of a month’s notice to the accused. “In absence of such statutory compliance, it is nothing but abuse of process of law,” the court said.