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. 2 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. 3

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. 4 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 5 (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 6 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 7 269/270 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 8 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 9 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 10 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 11 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 12 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 13

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 14

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 15

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 16

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 17

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.)

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. 2 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. 3

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. 4 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 5 (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 6 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 7 269/270 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 8 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 9 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 10 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 11 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 12 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 13

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 14

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 15

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 16

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 17

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.)