Delhi HC Directs Speedy Disposal Of Cases For COVID Protocol Violations; Disapproves Police Issuing 41A Notices In Such Cases

The Delhi High Court on Thursday observed that it would be appropriate for the Delhi police to take quick action in all the pending matters relating to violation of orders passed under the Disaster Management Act, 2005 by filing complaints as required under law before the appropriate court, adding that such courts ought to dispose of the matters without further delay.

Justice Asha Menon added:

"The offence has been made cognizable only in order to facilitate the police to take immediate action, including the arrest of a person, who is found disobeying the orders issued for maintenance of law and order and in the interest of public health. That purpose cannot be converted into one that subjects the offender to unnecessary harassment and entails violation of Article 21 of the Constitution of India, guaranteeing the right to life, of which liberty is an inalienable facet."

Observing further that the fault lies in the procedure adopted, the Court opined that nothing limits the powers of the police or the court to adopt a simple procedure in petty offences which are cognizable.

The Court said thus:

"It is no doubt true that the police have to enforce orders that have been issued, particularly in the interest of public health and law and order. But, while doing so, an offence, such as the one under Section 188 IPC, cannot be equated with theft, mischief, cheating, criminal breach of trust, or causing of bodily harm, such as, hurt or attempt to culpable homicide, etc.. There have been innumerable cases where people have been found violating the "hours" governing business activities or even being in public places, without wearing a mask. These are all actionable wrongs and need to be dealt with firmly, but it must also be effective."

"To drag such matters over months instead of dealing with them expeditiously, by converting the information received into a complaint by the competent public servant, to be placed before the court concerned and disposed of summarily, the registration of the FIR, the issuance of Notices under Section 41A Cr.P.C., to appear before the police station, the consequent necessity of filing a Section 173 Cr.P.C. report, have only led to complication of matters and colossal waste of time and human resources."

The Court was dealing with a petition filed by Decathlon Sports India Pvt. Ltd. seeking quashing of an FIR registered under sec. 188 of the Indian Penal Code, 1860 stating that on 30th December, 2021, during patrolling, the police had found the showroom open with 8-10 people standing near the reception.

Since the person in-charge ignored the instructions of the Head Constable that the closing time for shops in Delhi was 8 PM in view of the Covid-19 notification, the showroom was not closed and the FIR was registered for having violated the Covid-19 notification.

The Court was of the view that it was not possible to believe that the order passed by the Delhi Disaster Management Authority, which had allowed shops or establishments dealing with non-essential goods and services to remain open between 10 AM to 8 PM on odd-even basis, was not known to the petitioner.

Analyzing various provisions mentioned under the Code of Criminal Procedure, the Court was of the view that if a complaint is also submitted to the court, the existence of an FIR would not constitute a bar to the taking of cognizance.

"The court is to take cognizance on the complaint of a public servant and not on the report that may forward such a complaint," it added.

"While this answers the petition, this Court would like to make a few suggestions on the police adopting a simpler procedure in such like cases, where they are dealing with ordinary citizens, who have no criminal background or evident propensities to commit a crime. Yes, when there is disobedience, consequences must follow and effectively and immediately. A citizen must respect the law and obey rules as a solemn duty. It is only then that the law will come to his protection."

The Court further observed that it is unfathomable as to why the offence under sec. 188 IPC, which prescribes a punishment extendable upto three months or fine upto Rs.200 or both, cannot be disposed of in a more purposeful manner.

"The offence in the present case was committed in late December, 2021. Yet, even after seven months, it has found no closure, when it ought not to have taken even seven days for disposal," the Court noted.

The Court therefore disposed of the petition while rejecting the prayer to quash the FIR. However, the Court directed the SHO concerned to ensure that the complaint is forwarded to the concerned Magistrate's court immediately.

"No further action on the Notice under Section 41A Cr.P.C. dated 15th March, 2022 is called for. However, the SHO while forwarding the complaint of the concerned ACP to the court shall issue a fresh Notice under Section 41A Cr.P.C. only to inform the petitioner of the date it is required to appear before the Magistrate for disposal of the case," the Court ordered.

The Court however underlined that the directions may be followed only in respect of the cases registered under sec. 188 of Indian Penal Code that relate to the disobedience the DDMA notification dated 28th December, 2021 or other similar orders issued under the Disaster Management Act, 2005 and connected with the Covid-19 pandemic.

Case Title: DECATHLON SPORTS INDIA PVT. LTD. v. STATE OF NCT OF DELHI

Citation: 2022 LiveLaw (Del) 753

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