E.S.Rajesh v. The State

IN THE HIGH COURT AT CALCUTTA

CRIMINAL REVISION JURISDICTION [CIRCUIT BENCH AT PORT BLAIR ] ...

CRR/35/2022 E.S. Rajesh ... Petitioner Vs.

The State ... Respondent Mr. Gopala Binnu Kumar ...for the Petitioner Mr. Salim Mohammed ...for the State December 21, 2022 [AKB] Item No.5 This revision application under Section 482 read with Section 401 of the Code of Criminal Procedure is filed challenging the judgement and order dated 27th June, 2022 in connection with Criminal Appeal No. 08 of 2021 passed by the learned Sessions Judge whereby learned Sessions Judge affirmed the order dated 06.01.2021 passed by the learned Judicial Magistrate, Campbell Bay in connection with GR case No. 85 of 2020 recording an order of conviction of petitioner/accused 188/268/270/34 of the Indian Penal code read with Section 51 (b) of Disaster Management Act 2005. GR Case No. 85 of 2020 was initiated on a complaint submitted by Sub Inspector Subramani, SHO, PS Campbell Bay on an incident of gathering at Muthu Mariamma Temple, Gandhi Nagar, Campbell Bay on 02.07.2020 on the occasion of puja ceremony, violating the COVID 19 protocols in terms of order promulgated under Section 144

Coder of Criminal Procedure within the territory of Nicobar District with effect from 30.06.2020 till 30.072020. The case was investigated, charge sheet was filed against the accused including petitioner 188/268/269/270/34 of the Indian Penal Code read with Section 51 (b) of the Disaster Management Act, 2005. After submission of charge sheet learned Judicial Magistrate, Campbell Bay took cognizance on 12.10.2020 and subsequently date was fixed on 06.01.2021 for examination of the accused under Section 251 of the Code of Criminal Procedure.

On that day substance of accusation was read over and explained to the accused including the petitioner who pleaded guilty and learned magistrate convicted all the accused including the petitioner for committing offence punishable under Section 188/34, 269/34 and 270/34 of the Indian Penal Code read with offence punishable under Section 51 (b) of the Disaster Management Act, 2005. On careful perusal of the entire materials on record it comes to my view that actually the prohibition order under Section 144 of the Code of Criminal Procedure was promulgated by the District Magistrate throughout the Nicobar District with effect from 30.06.2020 till 31.07.2020 in compliance with the order of Ministry of Home Affairs for containment of COVID in the Country vide order No. 403/2020-DM-I(A) dated 30.05.2020.

SHO, Campbell Bay and in the complaint there is no specific allegation against any of the accused including the petitioner. All the sections put in the report in final form alluded to violation of the COVID protocol which is punishable under Section 51 (b) of the District Magistrate Act, 2005.

Mr.

Gopala Binnu Kumar, learned advocate appearing on behalf of the petitioner has referred to the Section 60 of the Disaster Management Act, 2005 and submitted that the cognizance taken by the learned Magistrate was bad and not in accordance with the provision of Section 60 (b) of the Act of 2005. Mr. Gopala Binnu Kumar has further submitted that the cognizance of the offence punishable under Section 188 of the Indian Penal code cannot be taken by a Court except the provision mentioned in exception clause under Section 195 of the Code of Criminal Procedure. Thereby Mr. Gopala Binnu Kumar has contended that learned Magistrate did not have power to take cognizance of the offence either under Section 188 of the Indian Penal Code or under Section 51 (b) of the Disaster Management Act, 2005.

Mr. Salim Mohammed, learned advocate appearing on behalf of the state has conceded that learned Magistrate did not have authority to take cognizance of the offence under Section 188 of the Indian Penal Code as well as offence punishable under Section 51 (b) of the Disaster Management Act, 2005. But, Mr. Salim has submitted that

learned Magistrate had the authority to take cognizance of the rest of the offences punishable under Section 269/270 of the Indian Penal Code.

After careful scrutiny of the entire record including report in the final form I find that entire allegation against the accused including the petitioner is revolved around the violation of COVID protocols within the meaning of Section 51 (b) of the Disaster Management Act, 2005. The alleged offences under Section 269/270 of the Indian Penal Code, I am of the humble opinion, is not applicable without incorporating Section 188 of the Indian Penal Code and 51 (b) of the Disaster Management Act, 2005. In fact, the offence under Section 269/270 of the Indian Penal Code cannot be said to be in existence without the offence punishable (b) of Disaster Management Act, 2005 in terms of the case of prosecution. According to provision of Section 60, Court cannot take cognizance of an offence Disaster Management Act, 2005 except on a complaint by the authority prescribed in Section 60 (a) (b) of the Act, 2005 and it is needless to mention that SHO Campbell Bay does not fall within the authority within the meaning of Section 2 of the Disaster Management Act, 2005.

Therefore, with the aforesaid view of the matter I can easily come to a conclusion that cognizance taken by the learned Magistrate of the offence alleged in the proceeding

is bad and liable to be quashed, in exercising jurisdiction under Section 482 of the criminal procedure code. In the aforesaid view of the matter the judgement passed by the learned Sessions Judge dated 27.06.2022 in connection with Criminal Appeal No. 08 of 2021 stands set aside and proceeding in connection with GR Case No. 85 of 2020 stands quashed.

With the aforesaid observation CRR/35/2022 is disposed of.

Let a copy of this order be communicated to the learned Magistrate for information.

(Bibhas Ranjan De, J.)