Read Order: DECATHLON SPORTS INDIA PVT. LTD v. STATE OF NCT OF DELHI 

LE Correspondent

New Delhi, August 5, 2022: Declining the prayer of Decathlon India to quash an FIR pertaining to violation of Covid-19 protocol, the Delhi High Court has opined that the police need to enforce orders that have been issued, particularly in the interest of public health and law and order, however it need not drag such matters over months instead of dealing with them expeditiously.

 A Single Judge Bench of Justice Asha Menon disposed of the present petition  preferred by the petitioner under Article 226/ 227 of the Indian Constitution read with Section 482 of Criminal Procedure Code for quashing the FIR registered under Section 188 of the India Penal Code.  The Bench observed that the Court is to take cognizance on the complaint of a public servant and not on the report that may forward such a complaint.

As per the FIR, on December 30 , 2021 , during patrolling, the Head Constable Om Singh and Constable Omveer, found that at a shop/showroom, namely, “Decathlon Sports India Pvt. Ltd was open and there were 8- 10 people standing near the reception.  The Government of NCT of Delhi by its order dated December 28, 2021 had allowed shops/establishments dealing with non-essential goods and services to remain open between 10 AM to 8 PM on odd-even basi

Since the person in-charge ignored the instructions of the Head Constable that the closing time for shops in Delhi was 8 PM in view of the Covid-19 notification, the petitioner who failed to close the showroom was proceeded against, for having violated the said Covid-19 notification and a case under Section 188 IPC was made out against it. It was the case of the petitioner that  no FIR could have been registered against the petitioner without the written complaint of the Competent Authority, i.e., the Assistant Commissioner of Police, in the present case. 

After considering the submissions from both the sides and after pursuing the material on record , the Court noted that taking of cognizance by the court is governed by Section 190 Cr.P.C. The Section provides for the cognizance of any offence to be taken by a Magistrate through one of the three modes which are such as firstly, upon receiving a complaint of facts which constitute such offence or secondly,  upon a police report of such facts or thirdly, upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

 Quashing of an FIR calls for a valid ground to do so, if the FIR is in compliance with prescribed procedure, and so long as it discloses the commission of an offence, it ought not to be quashed. After due investigation, the police will submit a report under Section 173 Cr.P.C before the MM, the Court stated.  Whether a complaint by the ACP concerned or only a Report under Section 173 Cr.P.C. will be filed in the present case, cannot be presumed, as filing is yet to take place. If only a Report under Section 173 Cr.P.C. 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 further noted.  “The court is to take cognizance on the complaint of a public servant and not on the report that may forward such a complaint”, added the Bench.

Additionally the Court observed that there is no iota of doubt with respect to the fact that the police need to enforce orders that have been issued, particularly in the interest of public health and law and order. But, while doing so, an offence, such as the one under Section 188 IPC, cannot be equated with theft, mischief, cheating, criminal breach of trust, or causing of bodily harm, such as, hurt or attempt to culpable homicide, etc.. 

According to the Bench, there have been innumerable cases where people have been found violating the “hours” governing business activities or even being in public places, without wearing a mask. 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, by converting the information received into a complaint by the competent public servant, to be placed before the court concerned and disposed of summarily, the registration of the FIR, the issuance of Notices under Section 41A Cr.P.C., to appear before the police station, the consequent necessity of filing a Section 173 Cr.P.C. report, have only led to complication of matters and colossal waste of time and human resources. 

Thus, the present petition was disposed of by declining the prayer to quash the FIR in question. However, the SHO concerned was directed to ensure that the complaint is forwarded to the concerned Magistrate’s court immediately. 

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