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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
RAJNESH OSWAL, J.
Gaurav Sharma – Appellant
Versus
Union Territory of J&K - Respondent
CRM(M) No. 432 of 2020
Decided on : 28-07-2021
Indian Penal Code, 1860 - Section 188 - Criminal Procedure Code, 1973 - Section 195 (1) (a) - Violation of orders of District Magistrate - Storing goods and merchandise. District Magistrate issued prohibiting operations of certain establishments and activities to mitigate transmission of COVID-19 pandemic - Pertinently, said order did not restrict operation of private transport or unloading of goods in warehouses for safekeeping - Whether police can register FIR with regard to commission of offence under section 188 IPC in view of section 195(1)(a) Cr.P.C. - Whether business premises in question is a warehouse and goods/merchandize were being unloaded for which FIR under section 188 IPC has been registered - Whether orders issued by District Magistrate, Jammu are not applicable to premises of petitioner - Whether orders issued by Ministry of Home Affairs were applicable on or not
Finding of the Court:
A bare perusal of section 195 Cr.P.C. reveals that no court can take cognizance of an offence punishable under section 172 to 188 or abetment or attempt to commit to such offence or conspiracy to commit such offence except on a complaint in writing of public servant or some other public servant to whom he is administratively subordinate. Section 195 Cr.P.C. clearly bars taking of cognizance by Magistrate but does not bar investigation by police officer. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - FIR reveals that during course of checking at about 1730 hours one business premises was found running in violation of District Magistrate, Jammu orders and further during investigation it was found that one shop was found open. There is no allegation in FIR that truck was being unloaded in premises. The contention of petitioner that premises was a warehouse and no business activity was being undertaken is belied by registration certificate placed on record by petitioner only in which it is categorically mentioned that nature of business/trade is ‘Courier Services’ - Both orders reveals that all shops/markets except for groceries, fruits, vegetables, dairy products, medical shops, petrol pumps and other establishments were ordered to be closed till 31.03.2020 so premises of petitioner that was involved in business of ‘Courier Services’ also fell within purview of restrictions imposed by District Magistrate vide orders mentioned above. Order of Ministry of Home Affairs reveals that containment measures as contained in the said order were ordered to be remain in force in all parts of country for a period of 21 days with effect from 25.03.2020 and relevant portion of order
Result: Petition dismissed
JUDGMENT :
1. The present petition has been filed for quashing FIR bearing No. 68/2020 dated 23.03.2020 registered with Police Station, Satwari for commission of offence under section 188 IPC.
2. It is stated that the FIR impugned has been registered erroneously pursuant to the information submitted by the Sub Inspector of Police Station, Satwari on the misconceived premise that the warehouse of M/S Instakart Services Pvt. Ltd. was operating in violation of orders of the District Magistrate, Jammu dated 15.03.2020 and 19.03.2020. It is further averred that that a warehouse in question is exclusively used for the purpose of storing goods and merchandise. On 15.03.2020, the District Magistrate issued prohibiting operations of certain establishments and activities to mitigate the transmission of COVID-19 pandemic. Pertinently, the said order did not restrict operation of private transport or unloading of goods in warehouses for safekeeping. Further on 19.03.2020, the District Magistrate, Jammu issued another order that all shops/markets except for groceries, fruits, vegetables, dairy products, medical shops, petrol pumps and other establishments providing for essential commodities in the jurisdiction of District Jammu shall remain closed till 31.03.2020. It is further stated in the petition that in the order dated 19.03.2020, there was no prohibition of private transportation or unloading of goods in warehouse for safekeeping. The petitioner has further stated that on 23.03.2020, a truck bearing registration No. JK 02PQ 0258 with gate pass No. 30124 carrying goods/merchandise those were to be delivered at the warehouse, entered Jammu and reached the warehouse on 23.03.2020 and as the truck was to return to its original destination, the employees at the warehouse started offloading the goods/merchandise from the truck into the warehouse and at that point of time at around 05.30 PM police officials reached the warehouse and found that offloading of goods/merchandise was taking place. The police officials did not stop the unloading but instead informed the petitioner that they will be charged for the violation of the orders dated 15.03.2020 and 19.03.2020. The petitioner explained to the Police officials that there was no violation of any government order because the warehouse was not a shop/market. The petitioner further apprised the police officials that the warehouse was not in operation and was only opened for the limited purpose of offloading the goods/merchandise from the truck which had reached the warehouse so that such goods/merchandise could be stored for safekeeping and the truck could be released. However, the police officials proceeded to seal the warehouse.
3. On 23.03.2020 itself, the FIR was registered against the petitioner for violation of orders dated 15.03.2020 as well as 19.03.2020. It is further stated that on 24.03.2020, the Ministry of Home Affairs in its order implemented certain measures to prevent spread of Corona and as per clause 4 of the said order, commercial and private establishments were to be closed down, however, clause 4(i) of the said order, categorically excluded warehousing services from being shut. There was absolutely no bar on inter-state movement of goods and cargo or for warehouse operation. Therefore, the Central Government brought in clarity by issuing the order dated 24.03.2020. The Ministry of Home Affairs has issued an addendum to the order dated 24.03.2020 by another order dated 25.03.2020 whereby it added clause 6(b) to the order dated 24.03.2020 to allow inter-state movement of goods/cargo for inland and exports. On 29.03.2020, the Ministry of Home Affairs clarified the order dated 24.03.2020 by mentioning that transportation of all goods, without the distinction of essential/non-essential, has been allowed. Later on, the said premises was de-sealed pursuant to order dated 14.05.2020 passed by the Duty Magistrate (Munsiff) JMIC, Jammu.
4. The petitioner has questioned the FIR impugned
Disobedience to order duly promulgated by public servant - When investigation is still at initial stage, courts should not hasten to interdict investigation.
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The court emphasized the need for a simpler procedure in dealing with petty offences and criticized the delay in disposing of cases related to violation of orders under the Disaster Management Act, 2....
Cognizance of an offence under Section 188 IPC requires a written complaint by a public servant; FIRs based solely on police reports are prohibited and rendered void.
The registration of FIR under Section 188 IPC without a written complaint from the concerned public servant is impermissible and renders the proceedings void ab initio.
The absence of a written complaint from a public servant invalidates the cognizance of offences under Section 188 IPC, and police investigations into non-cognizable offences require prior magistrate ....
The authorities' action in locking the premises was unjustified, and the court directed them to consider and decide the representation of the petitioner for unlocking the premises.
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