A charge under Indian Penal Code Section 188 requires proof that the accused had actual knowledge of the promulgated order; failure to establish this renders the proceedings unsustainable.

ORDER :

K. LAKSHMAN, J.

Heard Sri Katika Ravinder Reddy, learned counsel for the petitioner and Smt. Shalini Saxena, learned counsel representing the learned Public Prosecutor appearing on behalf of respondent No.1 - State.

2. This Criminal Petition is filed under Section - 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘ BNSS ’) to quash the proceedings in C.C.No.459 of 2023 pending on the file of Special Judicial Magistrate of First Class for Excise Cases at Hyderabad against the petitioner herein - accused No.2.

3. The petitioner herein is arraigned as accused No.2 in the aforesaid C.C.No.459 of 2023. The offence alleged against him is under Sections-188 and 269 of the INDIAN PENAL CODE (for short ‘IPC’) and Section 51 (b) of the Disaster Management Act, 2005.

4. On the complaint, dated 11.04.2021 lodged by respondent No.2, the Police, Thirumalagiri (S) have registered a case in Crime No.106 of 2021 against the petitioner and others for the aforesaid offences. In the said complaint, dated 11.04.2021, respondent No.2 alleged that as per the instructions of Sub-Inspector of Police, Thirumalagiri, he, along with L.W.2, were conducting patrolling duty during bye-elections of Nagarjuna Sagar Assembly Constituency at Godumadaka Village. At about 11.00 hours, they found the petitioner and other accused conducted election campaign during bye-elections without taking precautions prescribed by both the Central and State Government with regard to Covid-19 in terms of G.O.No.68 of 2021, dated 27.03.2021 and they have not wore the face masks. They have not maintained social distance. They have conducted the said campaign negligently.

5. During the course of investigation, the Investigating Officer recorded the statement of respondent No.2 as L.W.1. Sri N.Pradeep Kumar, Police Constable as L.W.2 and Sri K. Sudhaker, Sub- Inspector of Police, Thirumalagiri as L.W.3. L.W.1 reiterated the contents of the complaint, dated 11.04.2021. The statement of L.Ws.2 and 3 are also in the same lines. In the complaint, dated 11.04.2021, respondent No.2 did not state the presence of L.W.3 i.e., Sri K. Sudhaker, Sub-Inspector of Police of Thirumalagiri Police Station. He has referred the name of only L.W.2. Investigating Officer has not recorded the statements of any eye witnesses. L.W.1, Head constable, L.W.2, Police constable, L.W.3, Sub-Inspector of Police, Thirumalagiri Police station.

6. The allegations leveled against the petitioner herein are that he along with others have conducted campaign without adhering Covid-19 instructions/guidelines issued by the Central Government and also stated vide G.O.Mos.No.68, dated 27.03.2021. Without considering the said aspects, the Investigating Officer laid charge sheet against the petitioner herein. 7. As discussed supra in the present case, the investigating officer did not examine any eye witness to say that the accused has committed for the aforesaid offences.

8. It is apposite to extract the relevant provisions of IPC, ED Act and DM Act, which are as under:

INDIAN PENAL CODE

“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 act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, i