The Delhi High Court has clarified that a criminal prosecution arising out of alleged lockdown violation cannot survive unless the statutory ingredients of the invoked offences are clearly disclosed from the FIR and the material collected in investigation. For Section 188 IPC, the prosecution must show not only a duly promulgated order but also the accused’s knowledge of that order and the required consequence flowing from its disobedience.
Thus, the Court held that mere presence outside during lockdown, without proof of public promulgation, knowledge, and a qualifying harmful consequence, is not enough. Similarly, Sections 269 and 270 IPC cannot be invoked without material showing infection or at least knowledge or reason to believe infection, and Section 336 IPC cannot apply without actual endangerment to others. Accordingly, the High Court quashed an FIR registered during the COVID-19 lockdown against a person who was found walking alone on a public road and was prosecuted under Sections 188, 269, 270 and 336 IPC.
Where the FIR allegations, even if accepted at face value, do not disclose any offence, and the investigation also does not cure that defect, the case falls within the Bhajan Lal categories warranting quashing under Section 482 CrPC, added the Court.
A Single Judge Bench of Justice Madhu Jain first clarified that the mere fact that cognizance had already been taken by the Magistrate did not bar the High Court from exercising its inherent powers under Section 482 CrPC. Relying on Anand Kumar Mohatta, the Court observed that the High Court can interfere even after filing of the chargesheet, and in fact abuse of process becomes graver once a weak FIR matures into a criminal prosecution.
On Section 188 IPC, the Court held that the prosecution failed on the basic ingredients of the offence. The Court noted that for Section 188 to apply, there must be a lawful order, knowledge of that order by the accused, disobedience of that order, and a resulting or likely consequence such as obstruction, annoyance, injury, or danger to human life, health or safety. The Court stressed that “knowledge” of the order is central to the offence and cannot be assumed automatically. It examined the record and found that the order dated March 24, 2020, which was allegedly violated, was not even filed with the chargesheet. More importantly, neither the FIR nor the chargesheet nor the witness material stated that the order had been publicly promulgated through proclamation, publication, affixation, newspaper circulation or any other public mode, or that the petitioner had knowledge of it. The Court held that knowledge could not be presumed in a vacuum, especially in the early days of an unprecedented lockdown.
The Court further found that the consequence requirement under Section 188 IPC was also missing. The petitioner was only alleged to have been walking alone on a public road. There was no allegation of any overt act causing obstruction, annoyance, injury, danger to human life, health or safety, or any riot or affray. The Court underlined that mere presence on a road, without more, does not satisfy the statutory ingredients of Section 188 IPC. It also noticed that the lockdown regime was not an absolute bar on movement and permitted essential movement, including for medical needs. The petitioner’s explanation that he was out for medical follow-up was found to fit within that position, and the medical certificate produced by him was also found genuine by the State.
On Sections 269 and 270 IPC, the High Court held that these provisions necessarily require at least some allegation or material showing that the accused was infected, or knew or had reason to believe that he was infected, and nevertheless did an act likely to spread a dangerous infection. In the present case, the petitioner was never tested for COVID-19, and the prosecution never even alleged that he was infected, symptomatic, or suspected to be infected. Since the only allegation was that he was walking alone on a public road, the Court held that the very foundation for offences under Sections 269 and 270 IPC was absent.
The Court also rejected the application of Section 336 IPC. It held that this provision requires a rash or negligent act that endangers human life or the personal safety of others. In the present case, there was no allegation and no material to show that any identifiable person’s life or safety was endangered by the petitioner’s conduct. The chargesheet did not identify even a single person who was put at risk. Therefore, invocation of Section 336 IPC was held to be wholly misconceived.
The Court deliberately did not decide certain other objections raised by the petitioner, including the argument under Section 195 CrPC and issues relating to fairness of investigation such as the complainant and investigating officer being the same person, absence of public witnesses, and alleged bypassing of Section 41A CrPC. The Court said these questions did not need adjudication once it had already found that the foundational ingredients of the alleged offences were missing.
Briefly, the petitioner has sought quashing of FIR registered at PS Kishangarh for offences under Sections 188, 269, 270 and 336 IPC, along with all consequential proceedings. The FIR was lodged during the first COVID-19 lockdown, when police personnel on picket duty stopped the petitioner on Aruna Asaf Ali Marg and asked why he was outside. According to the FIR, the petitioner said that he had come out for a walk because he was unable to pass time sitting at home. On that basis, the police treated his movement as a violation of the lockdown-related notification and local order, registered the FIR under Section 188 IPC, arrested him, and later released him on police bail.
Thereafter, the police also added Sections 269, 270 and 336 IPC in the chargesheet. The prosecution case was based only on police witnesses, with no public witness and no medical examination or COVID-19 test of the petitioner. Later, a complaint under Section 195 CrPC was also filed before the Magistrate for the offence under Section 188 IPC, and cognizance was taken by the trial court.
The petitioner’s case before the High Court was that he had not stepped out casually, but had gone for medical follow-up because he was suffering from severe back pain. He relied on a medical certificate dated March 21, 2020. He also argued that even otherwise, movement for essential purposes including medical needs was not completely barred under the prevailing lockdown framework. The State, on verification, accepted that the medical certificate issued by Dr. Prakash Kumar Mishra was genuine, though some older prescriptions from another clinic could not be verified.
