JUDGMENT

C Hari Shankar, J. - Crl. M. A. 7661/2020 (for stay)

By the present application, the petitioner-applicant seeks interim stay of all proceedings consequent on FIR No 0133, dated 5th June, 2020, registered at PS Rajinder Nagar against the applicant. The FIR alleges commission of offence, by the applicant, under Section 188 of the Indian Penal Code, 1860 (IPC). The complainant is "Amit Kumar Pamasi (C/O) Dy Secretary Health", and the applicant is the accused. The FIR (to the extent it is relevant) reads thus:

"Sub: Request for filing FIR under Section 188 IPC. Sir This has reference to this department order No F. 2/08/2020/S.I/118 dated 30.04.2020 of order no. F. 52/DGHS/PH-IV/COVID-19/2020 prsecyhfw/6922-7022 dated 06.05.2020 of H & FW Department regarding guidelines for tracking and monitoring of every COVID-19 suspected cases tested in various accredited labs across Delhi wherein it was mandatory for the labs to collect sample only through RT-PCR App. Further, CDMO cum Mission Director, Central vide order dated 03.06.2020 has mentioned that Sir Ganga Ram Hospital is still not using the RT-PCR app even today i.e. 03.06.2020 which is a clear violation of direction issued under the Epidemic Disease, COVID-19 regulation, 2020 issued under The epidemic Diseases Act, 1897. In view of violation of orders of this department, it is requested to file an FIR under sections 188 IPC against Medical Superintendent, Sir Ganga Ram Hospital and informed accordingly to this department. This issues with prior approval of competent authority."

History

2. In exercise of the powers conferred by Sections 2, 3 and 4 of the Epidemic Diseases Act, 1897, the Hon''ble Lieutenant Governor of Delhi issued Notification, dated 12th March, 2020, notifying the Delhi Epidemic Diseases, COVID-19 Regulations, 2020 (hereinafter referred to as "the 2020 COVID Regulations"). The directives, contained in the said Regulations, are to be found in Regulations 4 to 17 thereof, which read thus:

"4. All Hospitals (Government & Private) should have Flu corners for screening , of suspected cases COVID-19 (Corona Virus Disease 2019).

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17. With the concurrence of Health & Family Welfare Department of Govt of NCT of Delhi, District: Disaster Management Committee headed by District Magistrate IS authorized for planning strategy regarding containment measures for COVID-19 in their respective districts. The District Magistrate may co opt more officers from different departments for District Disaster Management Committee for this activity under these regulations."

3. Prior to the issuance of the Orders dated 30th April, 2020 and 6thMay, 2020, by the DGHS, GNCTD - of which the impugned FIR alleges disobedience - guidelines, for COVID-19 testing were being issued, from time to time, by the ICMR. The petitioner has placed, on record, the Guidelines issued, by the ICMR, on 17th March, 2020, 20th March, 2020, 9th April, 2020 and 18th May, 2020. A reading thereof reveals that it was only in the Guidelines, dated 18th May, 2020, that a specific requirement was incorporated, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or symptomatic, were to be conducted "by real-time RT-PCR test only".

4. Prior thereto, the petitioner asserts that a Specimen Referral Form (SRF) had been issued by the ICMR, which was required to be filled in, by the concerned labs, and transmitted, for communication, to the local/District/state health authorities. The said SRF, at a plain glance, is exhaustive, and contains all details, regarding the past history of the person being tested, his, or her, exposure history, clinical symptoms and signs, underlying medical conditions, and hospital treatment and investigation, if any. This form was also modified, from time to time, incorporating further details, such as the details of the referring doctor, "patient category", and the like.

5. On 20th April, 2020, the Health and Family Welfare Department, GNCTD issued Order No F.51