FARIDA BIBI vs THE STATE
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAl JURISDICTION
[CIRCUIT BENCH AT PORT BLAIR]
PRESENT: HON’BLE JUSTICE BISWAROOP CHOWDHURY
CRR /41/ 2026
Farida Bibi ... Petitioner
Versus
The State ... Respondent
For the Petitioner : Mrs. G. Mini
For the Respondent : Mr. Sumit Kumar Karmakar
Heard on : September 01, 2026
Judgment delivered on : September 03, 2026
Judgment uploaded on : September 05, 2026
BISWAROOP CHOWDHURY, J.
1. The petitioner before this Court is an accused in GR Case
No. 750 of 2020 pending before the learned Chief Judicial
Magistrate, Port Blair. The said case arose from FIR No. 60 of
2020 dated 23.04.2020, PS Bambooflat, District South
Andaman under Section 188/269/270/271/34 of the IPC and
section 51(b) of the Disaster Management Act, 2005.
2. The petitioner has challenged the institution of the said
criminal case against her and submission of the charge sheet in
the said case.
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3. The petitioner being aggrieved by the institution of the
said criminal case and submission of the charge sheet, prayed
for an order of discharge submitted before the learned Chief
Judicial Magistrate, Port Blair which was rejected by order No.
22 dated 10.07.2026 passed by learned Chief Judicial
Magistrate, Port Blair refusing discharge of the petitioner from
GR case No. 750 of 2020 has come up with the instant
application.
4. Heard Learned Advocate for the petitioner accused person
and Learned Advocate for the opposite party State. Perused the
FIR and other materials on record.
5. Ms. G. Mini, learned Advocate for the petitioner submits
that the case is not maintainable against the petitioner and the
learned Chief Judicial Magistrate, Port Blair is not empowered
to take cognizance of the offence against the petitioner as the
said compliant was lodged by persons who is not authorized
under section 195(1)(a) of the Code of Criminal Procedure and
under Section 60 of Disaster Management Act, 2005.
6. Learned Advocate submits that section 195(1) Cr.P.C
provides that no Court shall take cognizance of any offence
punishable under Section 172 to 188 both inclusive of the
Indian Penal Code except on the complaint in writing of the
public servant concerned or of some other public servant to
whom he is administratively subordinate.
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7. Learned advocate further submits that under section 60
of the Disaster Management Act, it is provided that no Court
shall take cognizance of an offence under the said Act except of
a complaint made by National Authority, State Authority,
Central Government, State Government, District Authority or
any other authority or Officers authorized in his behalf for that
authority or Government as the case may be, or by any person
who has given notice of not less than 30 days in the manner
prescribed of the alleged offence and his intention to make
complaint to the National Authority, State Authority, Central
Government, State Government, the District Authority or any
other Authority or Officers authorized as aforesaid.
8. Learned Advocate submits that in view of the provisions
contained in section 60 of the Disaster Management Act, 2005
as well as Section 195(1) of the Cr.PC, the Courts have no power
to take cognizance of the offence in which the petitioner is
charged.
9. Learned Advocate also submits that although the
petitioner is charged under Section 269/270/271 of the IPC
but the said provisions cannot be applied without section 51(b)
of the Disaster Management Act, 2005.
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10. Learned Advocate relies upon the following Judicial
decision:-
CRR/35/2022, E.S. Rajesh Vs. the State (High Court at
Calcutta, Circuit Bench at Port Blair).
11. Mr. Karmakar, learned Advocate for the opposite party
State submits that although the Courts cannot take cognizance
of the offence under section 172 to 188 of the Indian Penal Code
and Section 51(b) of the Disaster Management Act, 2005 but so
far Section 269/270/271 are concerned the Courts are
empowered to take cognizance of the offence. Learned Advocate
further submits that once a cognizance is taken the Courts do
not have any power but to proceed with the same. Learned
Advocate also submits that the decision of this Court in
CRR/35/2022, E.S. Rajesh Vs. the State (Supra) is not fully
applicable to the facts of the case. It is submitted by the learned
Advocate that in the said case the accused person pleaded
guilty but in the present case the charge sheet is submitted and
cognizance is already taken.
12. Before proceeding to decide the issue, it is necessary to
consider the provisions contained in section 195(1)(a) of the
Code of Criminal Procedure and section 60(b) of the Disaster
Management Act, 2005.
13. Section 195(1)(a) provides that no Court shall take
cognizance of any offence punishable under section 172 to 188
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(both inclusive) except on the complaint in writing of the
public servant concerned or some other public servant to whom
administratively subordinate. In the instant case petitioner is
charged under section 187 and 188 of the IPC along with other
sections of Indian Penal Code and Disaster Management Act,
2005.
14. Section 51(b) of the Disaster Management Act provides as
follows:-
“Punishment for obstruction for refusal to comply with
any direction given by or on behalf of the Central
Government or the State Government or the National
Executive Committee or the State Executive Committee
or the District Authority under the Act shall on
conviction be punishable with imprisonment for a term
which may extend to one year or with fine, or with both,
and if such obstruction or refusal to comply with
directions results in loss of lives or imminent danger
thereof, shall on conviction be punishable with
imprisonment for a term which may extend to two years.”
15. Further section 60 of the Disaster Management Act
provides that no Court shall take cognizance of an
offence under the Act except on complaint made by the
National Authority, State Authority, the Central
Government, the State Government, the District Authority
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or any other Authority or Officers authorized in this
behalf of that authority or Government as the case may be
or any person who has given notice of not less than 30
days in the manner prescribed of the alleged offence and
his intention to make complaint to the National Authority,
State Authority, Central Government, the State
Government, the District Authority or any other Authority
or Officers authorized for the aforesaid.
16. So far section 51 (b) of the Disaster Management Act and
Section 187/188 of the Indian Penal Code is concerned there is
no iota of doubt that Courts cannot take cognizance of offence
unless the complaint is made by the authority who are
authorized under the statute. Now the question which comes for
consideration is whether Courts have power to take cognizance
of an offence which is under section 269/270/271 of the Indian
Penal Code. In this regard, it is necessary to consider the
observation made by the learned Single Bench in this Court in
CRR 35 of 2022, E.R. Rajesh Vs. the State. In the said case, the
learned Judge observed as follows:-
“ After careful scrutiny of the entire record including report in
the final form I find that entire allegation against the accused
including the petitioner is revolved around the violation of COVID
protocol, within the meaning of section 51(b) of the Disaster
Management Act, 2005. The alleged offences under section
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269/270 of the Indian Penal Code, I am of the humble opinion, is
not applicable without incorporating section 188 of the Indian
Penal Code and 51(b) of the Disaster Management Act, 2005. In
fact, the offence under Section 269/270 of the Indian Penal Code
cannot be said to be in existence without the offence punishable
under Section 51(b) of the Disaster Management Act, 2005 in
terms of the case of prosecution.”
17. In view of the Judgment of learned Single Judge of this
Court, the offence under section 269/270 of the Indian Penal
Code cannot be existence when the offence is punishable under
section 51 (b) of the Disaster Management Act, 2005. Although
relating to violation of COVID Protocols, the learned Judge did
not make an observation with regard to 271 of the Indian Penal
Code it is necessary to consider the provisions contained in
section 271 of the Indian Penal Code.
18. Section 271 of the Indian Penal Code provides as
follows:-
“Whoever knowingly disobeys any rule made and
promulgated by the Government for putting any vessel
into a state of quarantine, or for regulating the
intercourse of vessels in a state of quarantine with the
shore or with other vessels, or for regulating the
intercourse between places where an infectious disease
prevails and other places, shall be punished with
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imprisonment of either description for a term which may
extend to six months, or with fine, or with both.”
19. Thus from section 271 of the Indian Penal Code it is clear
that to bring home an offence under section 271 of IPC the
prosecution is to prove the following :-
a) That there was a rule of quarantine.
b) That such a rule was made and promulgated by the
Government for putting any vessel into a state of
quarantine or for regulating intercourse of vessels in a
state of quarantine with the shore or other vessels or
for regulating the intercourse between places where an
infectious disease prevails and other places.
c) That the accused knew of such rule.
d) That the accused disobeyed the rule knowingly.
20. Thus, from plain reading of Section 271 of the Indian
Penal Code it is clear that the section deals with wilful
disobedience of rule promulgated by Government for putting
any vessel into a state of quarantine or for regulating
intercourse of vessels in a state of quarantine cannot be applied
to the facts of the case. The instant case does not relate to any
order of putting any vessel into a state of quarantine but simply
arises with regard to violation of COVID protocol.
21. Apart from the observation made by the Hon’ble Bench of
this Court in the case of E.S. Rajesh Vs. The State (Supra) it will
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appear from this case itself that the provisions of section 269
and 270 of the Indian Penal Code are not applicable.
22. In order to prove offence under section 269 of the IPC the
prosecution is to prove the following:-
a) That the accused did an act likely to spread an
infection of a disease.
b) That the said disease was infectitious and dangerous
to life.
c) That such an act or omission was unlawful and
negligent.
d) That the accused had knowledge or had reason to
believe that his such act or omission was likely to
spread infection of such disease.
23. Similarly offence under section 270 of the Indian Penal
code is an aggravated form of the offence punishable under
section 269 of the Indian Penal Code.
24. In order to bring home an offence under section 270 IPC
the prosecution is to prove the following:-
a) That the accused did an act likely to spread an
infection of a disease.
b) That the said disease was both infectitious and
c) That the accused had knowledge or had reason to
believe that the disease was likely to spread infection
and
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d) That the accused acted or omitted to do an act
malignantly.
25. Thus, upon plain reading of section 269 and 270 of the
Indian Penal Code it will be apparent that when a person is
suffering from some disease and intentionally does certain acts
which will cause the said disease to spread or is residing in a
house where there are patients suffering from disease and
knowing fully well that persons entering such house will be
infected with disease intentionally invites certain persons to the
said house will be guilty of offences under section 269 and 270
of the Indian Penal Code. In the instant case, there is no
allegation that the house where the birthday party was held had
a COVID patient or there was a direction by the Authority that
the members of the said house shall be in quarantine. Thus the
ingredients of section 269 and 270 are not attracted.
26. In the case of XVS Hospital VSZ reported in AIR 1999 S.C
495, the Hon’ble Supreme Court while dealing with the issue of
right under Article 21 of the Constitution of India was pleased
to observe as follows:-
Section 269 and 270 of the Indian Penal Code provides as
under:-
“Section 269 of the IPC- Negligent act likely to spread infection of
disease dangerous to life. Whoever unlawfully or negligently
does any act which is and which he knows or has reason to
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believe to be likely to spread the infection of any disease
dangerous to life, shall be punished with imprisonment of either
description for a term which may extend to six months or with
fine or with both.
Section 270 of the IPC- Malignant act likely to spread infection of
disease dangerous to life- “Whoever malignantly does any act
which is and which he knows or has reason to believe to be
likely to spread the infection of any disease dangerous to life,
shall be punished with imprisonment of either description for a
term which may extend to two years or with fine or with both.”
40.These two sections spell out two separate and distinct
offences by providing that if a person negligently or
unlawfully does an act which he knew was likely to
spread the infection of a disease, dangerous to life to
another person then the former would be guilty of an
offence punishable with imprisonment for the term
indicated therein. Therefore, if a person suffering from
the dreadful disease “AIDS” knowingly marries a woman
and thereby transmits infection to that woman, he would
be guilty of offences indicated in sections 269 and 270 of
the Indian Penal Code.
41. The above statutory provisions thus impose a duty
upon the appellant not to marry as the marriage would
have the effect of spreading the infection of his own
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disease which obviously is dangerous to life, to the
woman whom he marries apart from being an offence.
27. In the case of Kondasami Mudalier reported in the Law
Weekly-629, Criminal Revision case No. 294 of 1919 and
Criminal Revision Petition No. 337 of 1919 , the Hon’ble
Madras High Court observed as follows:-
“When we remember that section 269 does not use the word
“illegal” which has been defined by section 43 or being
applicable to everything which is an offence or which is
prohibited by law but uses the word unlawful it is clear that the
prosecution must make out not only that there has been
disobedience to the Order of the Health Officer but also that
disobedience was unlawful and negligent and had also the
effect of spreading the infectitious disease. The case near in
point is Cahoon V Mathews. In that case, a mother was directed
to remove her daughter to an isolation hospital. She refused to
comply with the order unless she was herself allowed to
accommodate her child. Thereupon she was charged under
section 269 of the Indian Penal Code. The Learned Judges held
that as in her own house there were no lodger as the order to
remove was passed on misapprehension as to the existence of
lodgers and as sufficient accommodation was provided for the
infected child, the mother did not act unlawfully or negligently.
The learned Judges say and I entirely agree with the
observations of those:- An act however may be lawful though it
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may be illegal. Therefore, although in the present case, the
refusal to comply with the direction of the Health Officer might
have been illegal as defined in section 43, I am not prepared to
hold that it was unlawful when it was found that proper
precautions were to prevent infection and to provide a suitable
lodging for the person infected.”
28. Thus, upon considering the provisions contained in
section 269,270 and 271 of the Indian Penal Code, and the
Judicial decisions it will be clear that the allegation under
section 269, 270 and 271 of the Indian Penal Code are not
maintainable against the petitioner. At all if there is any
allegation against the petitioner with regard to committing any
offence it may be under section 188 of the Indian Penal Code
and section 51(b) of the Disaster Management Act 2005. As no
Courts can taken cognizance of an offence under section 188 of
the Indian Penal Code except on the complaint in writing of the
public servant concerned or of some other public servant to
whom he is administratively subordinate no cognizance of
offence under section 188 of the IPC can be taken. Similarly in
an offence under section 51(b) of the Disaster Management Act,
2005 no Court can take cognizance of any offence under the
said statute unless there is compliance of section 60 of the
Disaster Management Act
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29. It is well settled that when a statute does not empower
Courts to take cognizance of an offence under section 188 of the
Indian Penal Code or section 51(b) of the Disaster Management
Act, 2005 the mere fact the Court has already taken cognizance
by mistake does not empower the Court to proceed with the
same when there is a clear bar under the statute.
30. The Magistrate should before taking cognizance determine
whether his power is barred under any other provision e.g.
Section 195 of the Code.
31. In the case of Govind Mehta Vs State of Bihar reported
in AIR 1971 S.C 1711, the Hon’ble Supreme Court observed
as follows:-
“The Magistrate has normally got jurisdiction to take cognizance
under Section 190 of the Code. Therefore, at the stage when
the Magistrate is taking cognizance under section 190 of the
Code, he must examine the facts of the compliant before him
and determine whether his power of taking cognizance under
Section 190 has or has been taken away by any of the clauses
(a) to (c) of section 195 (1) of the Cr.PC. Therefore, it is needless
to state that if there is a non compliance with the provisions of
section 195 of the Cr.PC, the Magistrate will have no jurisdiction
to take cognizance of any of the offences enumerated therein.”
32. In the case of Manik Lall Ors. Vs. The State of
Jharkhand and Anr. reported in 2012 CRI.L.J 560 , the
Hon’ble Jharkhand High Court while considering the power of
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Learned Magistrate in taking cognizance of an offence without
compliance of Section 20(3) of the Railway Protection Force Act
was pleased to observed as follows:-
“It has further been submitted that the action of the petitioner
were duly protected under section 20(3) of the Railway
Protection Force Act which reads as under:-
“20. Protection of acts of members of the Force:-
1. Xxxxxxx
2. Xxxxxxx
3) Notwithstanding anything contained in any other law for the
time being in force any legal proceeding, whether civil or
criminal which may lawfully be brought against any member of
the Force for anything done or intended to be done under the
powers conferred by or in pursuance of any provisions of this
Act or the rules thereunder shall be commenced within three
months after the act complained of shall have been committed
and not otherwise and notice in writing of such proceeding and
of the cause thereof shall be given to the person concerned and
his superior officer at least one month before commencement of
such proceeding .(Emphasis supplied)
The Hon’ble Court further observed as follows:
11. After having heard the learned Counsel for both sides and
upon going through the records I am of the considered opinion
that Annexure -6 which is the charge sheet filed by the police
after investigation clearly mentions that the accused persons
were the RPF personnel, they were attacked by the mob and
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their vehicle and arms were badly damaged and even the
RPF Personnel were injured. In this view of the matter even
though charge sheet was submitted by the police in the
Court below, the Court below could not have taken the
cognizance of the offence in absence of the mandatory
requirement of Section 20(3) of the Act which clearly lays
down that no proceeding criminal or civil can be lawfully
brought against any member of the Force without complying
its mandatory requirements which had to be followed failing
which cognizance could not have been taken by the Court
below. I find sufficient force in the submission of the learned
Additional Sessions Judge Fast Track Court V Chaibara in a
hot haste and it appears that without giving any opportunity
to the petitioners to file the application for their discharge
and even without taking any precaution to see whether the
police persons were actually supplied to the petitioners or not,
he proceeded to frame the charges against the petitioners.
Accordingly, neither the order passed by the learned Chief
Judicial Magistrate taking cognizance of the offence nor the
order passed by the Additional Sessions Judge, Fast Track
Court V Chaibara framing charges against these petitioners
can be sustained in the eyes of law”.
33. Thus, it is settled that cognizance taken in violation of law
is bad in law.
34. In the facts and circumstances, this Court does not find
any ground to proceed against the petitioner under
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188/269/270/271/34 of the Indian Penal Code read with
section 51(b) of the Disaster Management Act, 2005.
35. As other accused persons have not come up with any
prayer before this Court no order can be passed with regard to
other accused persons. However they will be entitled to make
necessary prayer before trial Court if not already made in
accordance with law.
36. Hence, GR Case No. 750/2020 pending before the learned
Chief Judicial Magistrate, Port Blair, South Andaman is
quashed with regard to the petitioner.
37. The petitioner stands discharged from this case.
38. Thus, Criminal Revision is disposed off.
39. Connected CAN application, if any, are also disposed of.
40. Urgent Xerox certified copy of this judgement be supplied
to the Learned Counsel appearing for the respective parties upon
compliance of usual formalities.
(Biswaroop Chowdhury, J.)