STATE TIMES NEWS SRINAGAR: Court of Judge Small Causes, Srinagar, headed by Yahaya Firdous on Friday dismissed various charge sheets filed against the accused persons for violating order(s) under Section 144 CrPC passed by the District Magistrate, Srinagar to contain the spread of COVID-19 virus in the District Srinagar. The charge sheets were filed in 9 FIRs registered by various Police Stations under different Sections of the Indian Penal Code which include Sec. 188 IPC (Disobedience to order duly promulgated by public servant), Sec. 269 IPC (Negligent act likely to spread infection of disease dangerous to life) and Sec. 270 IPC (Malignant act likely to spread infection of disease dangerous to life). In some FIRs either Section 3/181, 207 or 270 of Motor Vehicles Act were also slapped against the accused persons. During the course of arguments, Advocate M. Abdullah Pandith representing the accused persons in FIR No. 32/2020 of Police Station Lal Bazar registered under Sections 188 and 269 IPC vehemently argued that court cannot take cognizance for the offence under Section 188 IPC for the reason that there is no proper complaint by the competent person as required under section 195 CrPC. He further contended that there is not even a single iota of evidence on record on the basis of which court can proceed against the accused and take cognizance of the offences under Sections 188 and 270 IPC. Advocate Pandith also submitted that once the offences under sections 188, 269 and 270 IPC are struck down, the offences under Motor Vehicles Act would automatically become void and therefore prayed for the dismissal of the charge sheets. The other Advocates representing the accused persons in other FIRs also adopted the arguments advanced by Advocate Pandith. While rebutting the submissions of Advocate Pandith, Shafakat, APP representing the UT, submitted that the complaint has been filed by the competent person and also the offences under Sections 269 and 270 IPC are made out for the reason that COVID-19 is a disease which can be transmitted from person to person, that is why the lockdown was put in place, however the accused did not obey the orders of the lockdown, as such, the disobedience by the accused amounts to commission of crime under Sections 188, 269 and 270 IPC. After considering the submissions of both the sides, Yahaya Firdous, Judge Small Causes Court, Srinagar observed that the court has come to the conclusion that for the offence under Section 188 IPC, the courts are prohibited from taking cognizance of an offence under Section 188 of the Indian Penal Code, except on a complaint in writing of the Magistrate who promulgated the order disobeyed or by some other public servant to whom he is subordinate. The filing of the complaint by such Magistrate or public servant to whom he is subordinate is a condition precedent to the jurisdiction of the trying Magistrate for taking cognizance of the offence. Court further observed that for the purpose of investigation, Section 188 IPC has been made cognizable, does not remove the bar under Section 195 (1) (a). It was categorically observed that if the order under Section 144 CrPC was promulgated by the District Magistrate, he has to file the complaint as he is the “public servant” whose order has been violated and that he cannot direct the SDM, Tehsildar or SHO to file the complaint. It was observed that in all these charge sheets the complaints were lodged by the police officers, except in FIR No. 32/2020 of P.S Lal Bazar, where the complainant is Executive Magistrate 1st Class (Tehsildar), who is not superior to District Magistrate, whose order was disobeyed. As far as offences under Motor Vehicles Act are concerned the, court held that the police report (charge sheet) does not fall within the definition of “complaint” as per Section 2(d) of the CrPC, as such, the police reports (charge sheets) cannot be treated as complaint for taking cognizance under MV Act, when there is no other offence either of IPC or any other law associated with the offences under MV Act, hence dismissed the final reports (charge sheets) to the extent of the offences under MV Act.
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