The Karnataka High Court quashed criminal proceedings under Section 269 of IPC and Section 51(b) of Disaster Management Act arising from a Dharna during COVID-19, relying on prior judgments holding such invocation an abuse of process.
The entire proceedings in C.C.No.32628/2021 pending before the 42nd ACMM, Bengaluru, stand quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 3329 OF 2023
BETWEEN:
D.K.SHIVAKUMAR, S/O D.K.KEMPEGOWDA, AGED ABOUT 59 YEARS, KPCC PRESIDENT CONGRESS BHAVAN, NO.14 QUEENS ROAD BENGALURU – 560 052.
…PETITIONER
(BY SRI. ARNAV A.BAGALWADI, ADVOCATE)
AND:
Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SRI. MAHESH SHETTY, HCGP. FOR R-1)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE PRIVATE COMPLAINT IN PCR.NO.11/2021 DATED 04.02.2021, THE ORDER OF COGNIZANCE DATED 23.11.2021 IN PCR.NO.11/2021 AND ALL FURTHER PROCEEDINGS IN C.C.NO.32628/2021 PRODUCED AS ANNEXURE-A, B AND C PENDING ON THE FILE OF XLII ADDL.C.M.M., BENGALURU FOR THE OFFENCE P/U/S 269 OF IPC AND SECTION 51-B OF DISASTER MANAGEMENT ACT.
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.32628/2021, which arose out of the a private complaint in P.C.R.No.11/2021, registered on 20.01.2021, pending before the 42nd ACMM, Bengaluru, for the offences under Section 269 of the IPC and Section 51(b) of the Disaster Management Act, 2005.
On 21.01.2021, the petitioner along with others had staged a Dharna from the City Railway Station to Freedom Park
and was accompanied by several hundreds of people. Despite existence of standard operating procedure apart guidelines and norms issued by the Government on the onset of COVID – 19. On 23.11.2021, the learned Magistrate takes cognizance of the offences and registers a case in C.C.No.32628/2021 against the petitioner for offences under Section 269 of the IPC and Section 51(b) of the Disaster Management Act, 2005.
“269. Negligent act likely to spread infection of disease dangerous to life.—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.”
Section 51(b) of the Disaster Management Act, 2005
reads as follows:
“51. Punishment for obstruction, etc.—
(a) xxxxxxx
(b) refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year
or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years. notes on clauses Clauses 51 to 58 (Secs. 51 to 58) seeks to lay down what will constitute an offence in terms of obstruction of the functions under the Act, false claim for relief, misappropriation of relief material or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse, or his connivance at contravention of the provisions of the Act. The clauses also provide for penalties for these offences.”
Section 269 of the IPC makes one guilty of the offence, if by unlawful or negligent act of any person, results in likelihood of spread of infection of certain diseases, which is dangerous to life. There is no allegation of the kind against the petitioner as is indicated in Section 269 of the IPC that, due to such an act of the petitioner, there was spreading of disease. The issue in the case at hand need not detain this Court or delve deep into the matter as the issue is covered by the order rendered by this Court in Crl.P.No.100332/2022 disposed on 07.02.2022, which covers the issue on all its fours. This Court in the said petition has held as follows:
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
“3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows:
On receipt of credible information of the alleged incident by the complainant-Police Inspector, during his patrolling duty, that some unknown persons were playing cards by violating pandemic lockdown restriction, a raid was conducted and several articles were seized and accordingly, complaint was registered for offences punishable under Sections 188, 269 and Section 80 of the Karnataka Police Act. The police after investigation have filed charge sheet dropping section 188 of IPC, but retaining Section 269 of IPC and Section 80 of the Karnataka Police Act. It is at that juncture, the petitioners have knocked the doors of this Court.
4. The issue with regard to registration of the offences as aforesaid under Section 269 of IPC and Section 80 of the Karnataka Police Act need not detain this Court or delve deep into the matter, as the issue stands covered by the judgment rendered by the Co-ordinate Bench of this Court in the case of Mr.Vishwesh Madane V/s. The State of Karnataka, Tarikeri Police Station in Crl.P.NO.5185/2021 disposed on 19.07.2021 has held as follows:
“7. The complainant on receipt of credible information has lodged a complaint, which has resulted in registering FIR against the accused persons for the offence punishable under Section 80 of the Karnataka Police Act, 1963, Sections 269 and 271 of IPC and Section 5(1) of the Karnataka Epidemic Diseases Act, 2020.
8. Reading of the complaint averments would clearly go to show that the ingredients for the purpose of attracting Section 269 of IPC is completely absent. The petitioners were all found in a hotel room and therefore, it cannot be said that they were guilty of unlawfully or negligently doing any act which they know or they have reason to believe that it is likely to spread the infection of any disease dangerous to life. It is not the case of the prosecution that any one of the accused persons had tested Positive for COVID-19 and in the absence of any such material, the offence under
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
Section 269 of IPC cannot be prima facie invoked as against the accused persons.
9. In the judgment relied upon by the learned counsel for the petitioner in Crl.A.No.453/2020 rendered by the High Court of Bombay, Nagpur Bench, it has been held that unless the ingredients, which would attract Section 269 of IPC, are found in the complainant averments, the said provision of law cannot be invoked. Further, this Court in Criminal Petition No.2089/2021 DD 08.07.2021 has held that deliberate attempt to invoke Section 269 of IPC with an intention to avoid obtaining permission under Section 155(2) of Cr.P.C. for registration of a case for non-cognizable offences cannot be permitted. Except Section 269 of IPC, the other offences invoked in the present case are all noncognizable in nature and therefore, prior permission under Section 155(2) of Cr.P.C. is mandatory in nature. In the case on hand, such permission has not been obtained by the prosecution. Further, though it is alleged that the petitioner was indulged in a game of chance, the complaint averments do not state as to how the prosecution has come to a conclusion that the game of cards allegedly played by the petitioner was a game of chance and not a game of skill.
10. Under the circumstances, I am of the considered opinion that the prosecution has abused the process of law by registering a criminal case against the petitioner invoking the alleged offences and therefore, for the purpose of securing the ends of justice, it is necessary to quash the same. Accordingly, I proceed to pass the following;
Order
This Criminal Petition is allowed. The entire proceedings in Crime NO.153/2021 registered by the Tarikere Town Police Station, Chikkamagaluru, for the offences punishable under Section 80 of the Karnataka Police Act 1963, Sections 269 and 271 of IPC and Sections 5(1) of the Karnataka Epidemic Disease Act, 2020 pending on the file of Principal
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
Civil Judge (Sr.Dn.) and C.J.M., Tarikere, Chikkamagaluru, is quashed as against the petitioner.
In view of disposal of the petition, pending I.A. does not survive for consideration. Accordingly, it stands disposed of.
Earlier to the aforesaid judgment, a Co-ordinate Bench of this Court in Crl.P.No.7388/2020 disposed on 02.02.2021. has held as follows:
“7. On perusal of the FIR, case is registered against the unknown persons and the same was registered at about 04:00 p.m., after the arrest, the FIR was also sent to the Court at 05:00 p.m., Having perused the complaint, there is a 6 force in the contention of learned counsel for the petitioners that only in order to take the advantage of noncompliance of Section 155(1) and (2) or Cr.P.C., the prosecution has invoked Section 269 of IPC.
8. No doubt, there was a lock down on the date of the incident and when the credible information was received, the prosecution ought to have registered the case invoking Section 154 of Cr.P.C., It is also important to note that though raid was conducted at 3:00 PM., the FIR was registered at 4:00 p.m. further, the FIR also discloses that the case was registered against unknown persons.
9. complaint discloses that an 12.04.2020, at about 03.30 p.m. complaint and his staff went to the spot and apprehended these petitioners complainant. Material available on record are contrary to each other and hence, this is a fit case to exercise power under Section 482 of Cr.P.C., to quash the proceedings initiated against the petitioners for noncompliance of Section 155(2) of Cr.P.C., Records also disclose 7 that though cognizable offence was taken place, FIR was not registered and before registering the FIR, alleged rapid was conducted.”
NC: 2023:KHC:19845 CRL.P No. 3329 of 2023
In the light of the issue standing covered by the order of this Court on all its fours, which infact followed the earlier judgment of the Co-ordinate Bench of this Court in the case of
M.VISHWESH MADANE VS. THE STATE OF KARNATAKA IN CRL.P.NO.5185/2021 DISPOSED ON 19.07.2021 .
ORDER
Sd/JUDGE
NVJ List No.: 1 Sl No.: 33 CT:SS
3 issues framed by the court
Whether proceedings for offences under Section 269 of IPC and Section 51(b) of Disaster Management Act should be quashed in light of prior judgments.
Whether registering a case under Section 269 of IPC without evidence of spreading disease constitutes abuse of process of law.
Whether prior permission under Section 155(2) of Cr.P.C. is mandatory for invoking Section 269 of IPC in similar circumstances.
Colour shows how this judgement treated each authority
3 provisions across 3 enactments
D.K.SHIVAKUMAR
STATE OF KARNATAKA
NARAYANI
M.NAGAPRASANNA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
