Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice M A Chowdhary has held that the continuation of trial in a criminal case registered for alleged violation of COVID-19 restrictions would be an abuse of the process of the court. The court directed the quashing of the charge sheet and all proceedings arising from an FIR that accused certain individuals of assembling in violation of Section 144 CrPC during the pandemic. The judge stated that the FIR appeared to have been registered frivolously and that conducting a trial in the matter would not serve the ends of justice. The court also ordered the discharge of any bail or personal bonds executed by the petitioners before the trial court.

The matter arose from FIR No. 39/2021, registered at Police Station Gool on 11 May 2021 for offences under Sections 188 and 147 of the Indian Penal Code, along with Section 51 of the Disaster Management Act. The FIR alleged that the petitioners, along with some other persons, gathered at Main Market Sangaldan and protested against the district administration in violation of an order issued by the District Magistrate, Ramban, on 7 May 2021 under Section 144 CrPC. The said order, issued in view of COVID-19 restrictions, prohibited assemblies exceeding four persons.

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The petitioners approached the High Court under Section 482 of the Code of Criminal Procedure seeking quashing of Criminal Case No. 57 of 2021 pending before the Judicial Magistrate (Munsiff) Gool. They contended that the FIR disclosed no cognizable offence, that offences alleged were non-cognizable, and that the police had initiated the investigation without following Section 155(2) CrPC, which requires magistrate approval for investigating non-cognizable offences. The petitioners further alleged that the proceedings were initiated with mala fide intent due to their participation in a protest against the administration.

The respondents, represented by the State, submitted that the petitioners intentionally violated the District Magistrate’s order during the lockdown by holding a protest. It was alleged that this defiance of orders constituted offences under Sections 188/34 IPC and Section 51 of the Disaster Management Act. The State asserted that the charge sheet was filed after proper investigation and sought dismissal of the petition.

Justice M A Chowdhary recorded that "the case against the petitioners is not that they had protested against or violated the order passed by the District Magistrate in any manner but it has been alleged that they had held a protest against the District Administration without clarifying as to what was the reason of protest." The court noted that only three persons were charge-sheeted and "to attract the offence under Section 188 CrPC for violation of an order issued under Section 144 CrPC, the number of such persons must be more than four so as to constitute an unlawful assembly."

The court further observed that "it appears that impugned FIR came to be registered against the petitioners frivolously, as the officers felt offended of their protest against them, with an aim to harass them." Justice Chowdhary recorded that continuing with the trial "would be an abuse of the process of the court" and that many state governments had withdrawn similar cases after the pandemic ended.

The court stated, "Viewed thus, trial of the petitioners as accused in the case, would be an abuse of the process of the court... to conduct trial of the petitioners would not serve the ends of justice." It concluded that the petitioners had made out a case for quashing of the charge sheet.

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The High Court held that "to prevent the abuse of process and to secure the ends of justice, the petition is allowed and impugned charge-sheet arising out of FIR No.39/2021 of Police Station Gool, pending on the files of Judicial Magistrate, Gool, is hereby ordered to be quashed."

The court further directed that "petitioners bail and personal bonds executed, if any, before the trial court shall also stand discharged." It ordered that a copy of the order be forwarded to the trial court for record and compliance. The petition, along with connected applications, was disposed of as allowed.

Advocates Representing the Parties:

For the Petitioners: Mr. Nadim Bhat, Advocate

For the Respondents: Mr. Eishaan Dadhichi, Government Advocate

Case Title: Sher Mohd. & Ors. v. Union Territory of Jammu & Kashmir & Ors.

Case Number: CRM(M) No.859/2021; CrlM No.2404/2021

Bench: Justice M A Chowdhary