Hafiz Abdul Hakim And ANR v. The State

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CRR/55/2024 Hafiz Abdul Hakim and Another Vs.

The State Mr. Salim Mohammed Mr. Anzer Ali ... for the Petitioners Mr. Sumit Karmakar ... for the State December 16, 2024 [TK] Item No.3 1.

Petitioner prayed for setting aside the impugned order dated 30th September, 2024, to quash the FIR No. 52 of 2020 dated 25.03.2020 registered at Police Station Ograbraj under Sections 188/269/270/34 of the Indian Penal Code, charge sheet No. 67 of 2020 dated 27.06.2020 and order of cognizance taken on defective charge sheet.

2.

Brief facts involved in the case is that Sumaiya Sultana was security staff of Indigo Airlines, posted at Chennai Airport. She came at Port Blair on 23.03.2020. She was infected from Corona virus. Therefore, she was advised to go for home quarantine till 05.04.2020 along with her family in the light of COVID-19 protocol. Rajesh Ram, Chowkidar and Shyam Narayan, posted as Choudhary were jointly entrusted to inform the people about the corona virus infected persons in Namunaghar, Dundas Point, Mithakhari area. As per the list provided by the office of Deputy Commissioner, South Andaman District, they informed Sumaiya Sultana and her family to observe home isolation till 05.04.2020 in consonance with

COVID-19 protocol. But her father Hafiz Abdul Hakim and her brother Farooque violated the said order as they went somewhere by pick up van. They did not give any heed to the advice of Chowkidar. On the direction of Tehsildar, he informed the incident to the Station House Officer, Ograbraj Police Station, upon which FIR No. 52/2020 dated 25.03.2020 was started and it was culminated into charge sheet being No. 67/2020 dated 27.06.2020 under Sections 188/269/270/34 of the Indian Penal Code against the petitioner. On the basis of the said charge sheet, learned Chief Judicial Magistrate, Port Blair has taken cognizance of the offence and proceeding of G. R. Case No. 642 of 2020 was started. Petitioner prayed for stopping of the proceeding of said G. R. Case on the ground that cognizance is bad in law.

3.

The said prayer was rejected by learned Judicial Magistrate (First Class)-I, Port Blair by stating that he has no authority to pass order to stop proceeding on the ground of cognizance is bad in law. The said order No. 20 dated 30th September, 2024 is the subject matter of this Revisional application.

4.

Learned Advocate for the petitioner submits that cognizance under Section 188 of the Indian Penal Code was not taken on the written complaint of public servant as per the mandate of Section 195 of the Code of Criminal Procedure is apparently bad in law and cognizance is taken on defective charge sheet, is also bad in law. The cognizance under Sections 269/270/34 of the Indian Penal Code would not lie as the allegations against them was only confined to the violation of

the prohibitory order promulgated by the Deputy Commissioner, South Andaman District under Section 144 of the Code of Criminal Procedure and its violation is punishable only under Section 188 of the Indian Penal Code. Its cognizance shall only be taken on the complaint of public servant, as per mandate of Section 195 of the Code of Criminal Procedure. He relied on the ratio decided in CRR/55/2022, Criminal Misc. P. No. 876 of 2020 and Criminal Misc. Application Nos. 11675, 11676 of 2015.

5.

Learned Public Prosecutor drawn my attention to the last paragraph of Section 195 (1) (a) of the Code of Criminal Procedure which provides that "case on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively sub-ordinate". This proceeding was started on the written complaint of Chowkidar who was discharging his public duty. Chowkidar is public servant as per Section 21 of the Indian Penal Code. As such mandate of Section 195 of the Code of Criminal Procedure has been fully complied for. However, this is a disputed question of facts; it should be determined by Trial Court.

6.

He further submitted that Sections 269 of the Indian Penal Code make "Any negligent act likely to spread infection of disease dangerous to life" and Section 270 of the Indian Penal Code makes "Any malignant act likely to spread infection of disease dangerous to life" punishable. He further submitted that ratio of CRR/35/2022 would not applicable here as the said order was passed in respect of Section 51 (b) of the Disaster Management Act, 2005 and on the pleading of guilty of

the offence under Disaster Management Act but petitioners herein are facing charges only under Sections 188/169/270/34 of the Indian Penal Code and they did not plead guilty to the offence. So, he prayed for dismissal of this application. 7.

The moot question involves in this Revisional application is that whether written complaint was filed by Chowkidar, is a public servant or not?

8.

It is fact that petitioners are prosecuted for the violation of prohibitory order promulgated under Section 144 of the Code of Criminal Procedure, by the Deputy Commissioner in adherence to the COVID-19 protocol. Petitioners were allegedly violated the said order.

extend to six months, or with fine which may extend to one thousand rupees, or with both".

9.

Code of Criminal Procedure provides special provisions for cognizance of any offence punishable under Sections 172 to 188 of the Indian Penal Code (both inclusive of Indian Penal Code), its abatement or attempt or its criminal conspiracy. It provides that no court shall take cognizance of such offence except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively sub-ordinate. It reads as follows : "Section 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance- (a) of any offence punishable under Sections 172 to 188 (both inclusive) of (i) the Indian Penal Code (45 of 1860), or (ii) of any abatement of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.

10.

As far as the promulgation of order is concerned there is no dispute. As per the petitioners the criminal proceeding was started against them on the basis of written complaint of Chowkidar, who is not a public servant.

11.

Section 21 of the Indian Penal Code is defines a term public servant and as per the said section "Chowkidar is a public servant".

12.

In Deokinandan vs Emperor, 1934 OUDH it was held that a village chowkidar is a police officer within the meaning of Section 25 of the Evidence Act.

13.

Relying on said legal proposition, I convinced to hold that a chowkidar is a public servant and the written complaint lodged against the petitioners by a Chowkidar, is sufficiently complied the requirement of Section 195 (1) (a) of the Code of Criminal Procedure.

Therefore, its mandate has been substantially complied. As such, I do not find any irregularity, illegality and impropriety in the order impugned. 14.

Learned Judge has rightly rejected the prayer of petitioners.

15.

The ratio decided in CRR/35/2022 would not applicable in here as it was passed in respect of Sections 51 (b) and 60 (a) (b) of Disaster Management Act, 2005. Similarly, the ratio decided in Criminal Misc. Application Nos. 11675, 11676 of 2015 and in Cr.M.P.No. 876 of 2020 would also not applicable here as the compliance of Section 195 of the Code of Criminal Procedure is fulfilled which is the mandatory requirement for initiation of prosecution under Section 188 of the Indian Penal Code.

16.

Accordingly, the instant Revisional application CRR/55/2024 is dismissed.

17.

There is no order as to the costs.

19.

Urgent Photostat certified copy of this order, if applied for, may be supplied to the parties upon compliance of usual formalities.

(Uday Kumar, J.)