In a legal hurdle for the Mumbai Police, which is seeking to prosecute people found not wearing masks in public places or violating lockdown and night curfew, at least 30 cases have been dismissed last week by a court, on the ground that proper procedure has not been followed.
Multiple orders passed by a metropolitan magistrate’s court have said that the police action is “without authority of law” and an “abuse of process of law”, as the sections invoked in the cases require a complaint filed by the collector or his subordinate officer, which has not been done. The orders also stated that while those booked have been charged with spreading an infection, they have not been tested for Covid-19.
The police have been booking people not wearing masks as well as for violating lockdown and night curfew under sections including 188 (violation of an order by a public servant), 269 (negligently doing an act which a person knows is likely to spread an infection of any disease dangerous to life), 270 (malignantly doing such an act) of the Indian Penal Code and the Disaster Management Act, 2005.
In many cases, the accused who have pleaded guilty have been directed to pay a fine before their cases were disposed.
In at least 30 cases lodged in the eastern suburbs, when the police filed chargesheets and sought that summons be issued to the accused, the court considered the maintainability of the cases. In multiple orders passed last week, it observed that charges under sections 269 and 270 of the IPC is not attracted in these cases.
“Admittedly, the police have not carried out Covid-19 tests of the accused persons. Moreover, there is no documentary evidence to show that the accused persons had tested positive. In absence of such material on the record, it cannot be said that the accused had indulged in any act, which was likely to spread infection of Covid-19,” one of the court orders said. It added that there was no proof that any of those booked had violated quarantine rules either.
The orders further stated that Section 188 – the charge invoked in all cases of lockdown violation – related to disobedience of an order promulgated by a public servant. In this case, the order regarding the lockdown was passed by the collector’s office.
Moreover, the orders stated that to be booked under the Disaster Management Act, the complaint has to be authorised by a national, state or district authority constituted under the Act and the accused should be given a notice of at least a month. They added that in these cases, the complaints were filed by police personnel who are not authorised to do so under the Act.
“In absence of such statutory compliance, it is nothing but abuse of process of law,” the orders said, adding that investigating authorities “acted without jurisdiction” in registering FIRs and conducting probes.
Since March, over 56,000 cases have been filed under Section 188 of the IPC across Mumbai.
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