ORDER :

This Criminal Original Petition has been filed to quash the proceedings in FIR in Crime No.1343 of 2020 on the file of the Palayamkottai Police Station, Tirunelveli City, Tirunelveli District as against the petitioners.

2. The case of the prosecution is that on 17.09.2020, when lock down was in force due to Corono Pandemic, the petitioners, who are political persons, without any permission and without any social distancing welcomed made a garland to the staute of Periyar. Hence a case has been registered against the petitioners and others in Crime No.1343 of 2020 for the offences under Sections 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897.

3. The learned counsel appearing for the petitioners submitted that in order to register a case under Section 269 of IPC, the accused person must do any unlawful or negligent act, which likely to spread the infection of any disease dangerous to life and whereas in the present case, the petitioners were not tested positive and there is no reason to believe that they are likely to spread the infection. He further submitted that the Hon'ble Supreme Court of India has held that the right to freely assemble and also right to freely express once view, are constitutionally protected rights under Part III and their enjoyment can be restricted only in proportional manner through a fair and non-arbitrary procedure provided in Article 19 of Constitution of India. He further submitted that it is the duty of the Government to protect the rights of freedom of speech and assemble that is so essential to a democracy. According to Section 195(1)(a) of Cr.P.C., no Court can take cognizance of an offence under Section 188 of IPC, unless the public servant has written order from the authority. Further he submitted that the petitioners or any other members had never involved in any unlawful assembly and there is no evidence that the petitioners or others restrained anybody. However, the officials of the respondent police had beaten the petitioners and others. When there was lot of members involved in the protest, the respondent police had registered this case, as against the petitioners and others. Therefore, he sought for quashing the proceeding.

4. Per contra, the learned Additional Public Prosecutor submitted that the petitioners along with others assembled in large numbers and there are specific allegations as against the petitioners to proceed with the trial. Further, he would submit that Section 188 of IPC is a cognizable offence and therefore it is the duty of the police to register a case. Though there is a bar under Section 195(a) (i) of Cr.P.C. to take cognizance for the offence under Section 188 of IPC, it does not mean that the police cannot register FIR and investigate the case. He further submitted that when Covid-19 Pandemic restriction was in force, the petitioners along with other people assembled in large numbers, which would certainly result in spreading of the Corona Virus. Therefore, he vehemently opposed the quash petition and prayed for dismissal of the same.

5. Heard the learned counsel for the petitioners and the learned Additional Public Prosecutor appearing for the respondent.

6. On perusal of the charge, it is seen that the petitioners along with other accused without prior permission from the concerned authority, garland the statue of Periyar. Therefore, the respondent police levelled the charges under Sections 188 and 269 of IPC and 3 of Epidemic Disease Act, 1897 as against the petitioners. Except the official witnesses, no one has spoken about the occurrence and no one was examined to substantiate the charges against the petitioner. It is also seen from the charge itself that the charges are very simple in nature and trivial. Section 188 reads as follows:

“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain