Rejecting Decathlon’s prayer seeking quashing of an FIR registered against its Preet Vihar store, for operating beyond 8 pm on December 30 last year, in violation of the Covid-19 guidelines, the Delhi High Court Thursday said it would be appropriate for the Delhi Police to take quick action in all pending matters relating to violation of orders passed under the Disaster Management Act by filing complaints before courts.
Directing Preet Vihar station house officer (SHO) to ensure that the complaint against Decathlon is forwarded to the magistrate concerned immediately, Justice Asha Menon observed that there have been innumerable cases where people were found violating time restrictions that governed business activities and public movement, or were in public places without masks.
“These are all actionable wrongs and need to be dealt with firmly, but it must also be effective. To drag such matters over months instead of dealing with them expeditiously … have only led to complication of matters and colossal waste of time and human resources,” Justice Menon said, adding that lower courts ought to dispose of such matters without further delay.
Observing that an offence under IPC section 188 (disobedience to order duly promulgated by public servant) is in the nature of a petty offence unless combined with other serious ones, the court said they can be summarily tried, and questioned the Delhi Police for not getting the FIR against Decathlon decided even after seven months “when it ought not to have taken even seven days for disposal”.
“It is unfathomable why the offence under section 188 IPC prescribing a punishment extendable up to three months or fine up to Rs 200/- or both, or when there is threat to health — as in this case due to Covid-19 pandemic — punishable with a maximum imprisonment of either nature for a period of six months or fine up to Rs 1,000/- or both, cannot be disposed of in a more purposeful manner,” said the court.
In Decathlon’s case, the court said police “seem to have gone a little far” by issuing notices under CrPC section 41A demanding appearing at the police station.
“The offender, being the petitioner herein, ought to have been directed to appear before the court on a specified date and time. Instead, directions are being issued to appear at the Preet Vihar, police station, Delhi, to “ascertain facts and circumstances” relating to the investigation! When everything was reported by the head constable Om Singh, what further investigations remained, is a moot question. The purpose of such a notice rouses suspicions,” it added.
Stating that police no doubt have to enforce orders, the court said offence under IPC section 188 however cannot be equated with theft, mischief, cheating, criminal breach of trust, or causing of bodily harm, such as, hurt or attempt to culpable homicide.
Directing police to act swiftly in all such cases related to violation of Covid-19 guidelines, the court said, “The offence has been made cognizable only in order to facilitate the police to take immediate action, including the arrest of a person, who is found disobeying the orders issued for maintenance of law and order and in the interest of public health. That purpose cannot be converted into one that subjects the offender to unnecessary harassment and entails violation of Article 21 of the Constitution of India, guaranteeing the right to life, of which liberty is an inalienable facet.”
According to the FIR, a beat patrol party led by a head constable had found the store open at about 8.50 pm with 8-10 people standing near the reception. Decathlon had argued that no FIR could have been registered against it without the written complaint of the Assistant Commissioner of Police. Police argued that the complaint under CrPC section 195 has been obtained from ACP and that when a chargesheet is filed, that would also be placed on record.
The court said police were fully empowered to take action, and rejected the argument that the FIR could not have been registered.
“After due investigation, the police will submit a report under section 173 CrPC before the learned MM. Whether a complaint by the ACP concerned or only a report under section 173 CrPC will be filed in the present case, cannot be presumed, as filing is yet to take place. If only a report under section 173 CrPC is filed, clearly the Magistrate will not take cognizance. However, if a complaint is also submitted to the court, the existence of an FIR would not constitute a bar to the taking of cognizance. The court is to take cognizance on the complaint of a public servant and not on the report that may forward such a complaint,” reads the order.