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2026 DAILYLAW 16638 (HP)

Kulwinder Kaur v. State of H. P.

2026-03-25

Sandeep Sharma

body2026
JUDGMENT : Sandeep Sharma, J. By way of instant petition filed under Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 (in short “BNSS”), prayer has been made on behalf of the petitioner for quashing of FIR No.48 of 2020, dated 20.04.2020, under Sections 269, 270, 188 of Indian Penal Code and Section 51(A) of Disaster Management Act, registered at Police Station Damtal, District Kangra, H.P., as well as consequent proceedings i.e. Police Challan No.39/2022, titled as State of Himachal Pradesh Vs. Kulwinder Kaur, pending adjudication in the Court of learned Judicial Magistrate First Class, Indora, Tehsil Indora, District Kangra, Himachal Pradesh. 2. Precisely, the facts of the case, as emerge from the pleadings as well as other material adduced on record by the respective parties are that FIR sought to be quashed in the instant proceedings came to be instituted against the petitioner on the precise allegation that on 24.04.2020, Police received written rukka against the petitioner, alleging therein that in violation of restrictions imposed by the Government on account of Covid-19, she travelled from Punjab to her in-laws at Kandrodi, District Kangra, Himachal Pradesh. After receipt of aforesaid communication, police conducted investigation and found that on 09.04.2020, petitioner along with her brother-in-law Pawan Kumar and her son travelled from Punjab to her in-laws at Kandrodi, as a result thereof, residents of Village Kandrodi came under threat of Corona infection. In the afore background, FIR sought to be quashed came to be instituted against the petitioner. 3. Though, after completion of investigation, Police has already presented challan in the competent Court of law against the petitioner, but before the same could be taken to its logical end, petitioner has approached this Court in the instant proceedings, for quashing of FIR as well as consequent proceedings, if any, pending adjudication in the competent court of law. 4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Sanjay Jaswal, learned counsel for the petitioner, is that though District Magistrate, Kangra, had issued curfew order dated 24.03.2020, but petitioner had gone to her maternal house, a day prior to the issuance of curfew order. After residing about 16 days in her maternal house, she returned back to her in-laws on 09.04.2020 by which date, curfew order dated 24.03.2020 stood withdrawn. After residing about 16 days in her maternal house, she returned back to her in-laws on 09.04.2020 by which date, curfew order dated 24.03.2020 stood withdrawn. Learned counsel for the petitioner further argued that as per statements of the then Secretary Gram Panchayat Toki (Plumber Dass) as well as Ms. Anuradha Kumari, (ASHA Worker), recorded under Section 161 Cr.P.C, factum with regard to arrival of the petitioner in afore Gram Panchayat came to their knowledge on 20.04.2020 and as per directions of SDM/BDO, the petitioner was quarantined for a period of 28 days in her home. During this period, neither the petitioner nor her son was found to be infected with the corona virus. It is argued by learned counsel for the petitioner that since curfew order dated 24.03.2020 was not within the knowledge of general public of the concerned area under PS Damtal and same was handed over to the police on 21.06.2020 by the office of PS Indora as has been stated by Sh. Somraj (Reader) of SDM, Indora and thereafter, matter with regard to violation of Covid-19 restrictions, if any, at the behest of the petitioner came to the knowledge of the local administration after her having been quarantined for a period of 28 days, there was otherwise no occasion to lodge FIR. Lastly, learned counsel for the petitioner argued that since it is admitted case of the parties that neither the petitioner nor her son was infected with the coronavirus and on account of their travel from Punjab to Kandrodi, Kangra, no infection was transmitted to general public, FIR lodged against her deserves to be quashed and set aside. 5. While making this Court peruse notification dated 07.02.2023 issued by the Additional Secretary (Home) to the Government of Himachal Pradesh to all the District Magistrates except District Magistrate, Hamirpur, Mr. Sanjay Jaswal, learned counsel for the petitioner, stated that otherwise also, Government itself decided to cancel/close or withdraw cases lodged against the persons for their having violated instructions issued by the administration from time to time in the wake of Covid-19. 6. To the contrary, Mr. Sanjay Jaswal, learned counsel for the petitioner, stated that otherwise also, Government itself decided to cancel/close or withdraw cases lodged against the persons for their having violated instructions issued by the administration from time to time in the wake of Covid-19. 6. To the contrary, Mr. Rajan Kahol, learned Additional Advocate General, while refuting the prayer made on behalf of petitioner, submitted that there is overwhelming evidence adduced on record suggestive of the fact that on the date of alleged incident, petitioner had violated social distancing norms and she travelled from Punjab to her maternal house Kandrodi without there being any permit issued by the competent authority, as a result thereof, great danger was caused to residents of Village Kandrodi on account of Covid-19. However, Mr. Kahol, fairly submitted that otherwise also, in terms of notification dated 07.02.2023 issued by the Additional Secretary (Home) to the Government of Himachal Pradesh, prayer made on behalf of the petitioner for quashing of FIR can be accepted. 7. Having heard learned counsel for the parties and perused material available on record, this Court finds that though allegations in the FIR sought to be quashed suggests that on the date of alleged incident, petitioner violated social distancing norms and she travelled from Punjab to Kandrodi, District Kangra during curfew and no permit, if any, was ever issued by the competent authority to the petitioner to undertake journey, as a result thereof, she became liable to be prosecuted under Sections 188 and 202 IPC. 8. I have heard the learned counsel for the parties and gone through the records. 9. Precisely, the ground as has been raised in the instant petition for quashing of FIR is that no case under Sections 269, 270, 188 of Indian Penal Code and Section 51(A) of Disaster Management Act could be initiated without there being written complaint to the higher ups. Careful perusal of provision contained in Section 195 of CrPC clearly reveals that no Court shall take cognizance of the offence punishable under Sections 172 to 188 of the Indian Penal Code (45 of 1860), except on the complaint in writing by the complainant. Section 195 reads as under: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Section 195 reads as under: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. (i) No Court shall take cognizance- (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” 10. Having taken note of the provisions contained in Section 195 Cr.P.C, which has been reproduced in the earlier part of the order, this Court finds that no court shall take cognizance of the Sections 172 to 188 (both inclusive) of the IPC, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. Where a complaint is made by a public servant under clause (a) of sub-section (1), any authority to which he is subordinate may order the withdrawal of the complaint and send copy of the such order to the Court and upon its receipt by the Court, no further proceedings shall be taken on the complaint, provided no such withdrawal shall be ordered if the trial in the first instance has been concluded. Since in the case at hand, public servant while initiating action against the petitioner did not send the copy of the complaint to the higher ups, enabling it to apply its mind, prosecution lodged against the petitioner under Section 188 is otherwise not sustainable. In the event of copy being supplied to the higher-ups, there was a possibility that such authority could order the public servant to withdraw the complaint. In the event of copy being supplied to the higher-ups, there was a possibility that such authority could order the public servant to withdraw the complaint. Since in the case at hand, aforesaid procedure never came to be followed/adopted, case registered against the petitioner under Sections 269, 270 & 188 of IPC is otherwise not sustainable. 11. The Gujarat High Court in judgment dated 15.2.2019, titled Mohmadmohsin mohmadirfan Chhalotiya v. State of Gujarat, in R/Special Criminal Application No. 4105 of 2017 2019(2) RCR (Criminal) 397, has held as under: “7 In order to appreciate the rival contentions on the aforesaid issue, it will be apposite to have closer look at some of the decisions of the Supreme Court for ascertaining the true nature and import of the provisions of section 195 of the Code. Section 195 of the Cr.P.C. reads as under: Section 195: Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence: (1) No Court shall take cognizance-(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administrative subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), a [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of subsection (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. (Emphasis supplied by me)” 8. The first in point of time is the decision of the Supreme Court is in the case of Basir-ul-Haq (supra). (The relevant sections considered are sections 182, 297 and 500 of the IPC). The relevant observations are incorporated as under: 14. Though, in our judgment, Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section of the Code of Criminal Procedure. Merely by changing the garb or label of an offence which is essentially all offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis-describing it or by putting a wrong label on it. 9. Thus, the Supreme Court has approved the decision of the Full Bench of the Calcutta High Court in the case of Satis Chandra Chakravarti v. Ram Dayal De, AIR 1921 Cal 1 , and has held that section 195 of the Cr.P.C does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages.” 12. Leaving everything aside, this Court finds that there is no independent witness associated by the prosecution to prove the case against the petitioner. Since evidentiary material placed on record is not sufficient to connect the petitioner with the offence alleged to have been committed by him, there is no justification to let the petitioner face the ordeal of protracted trial, which would otherwise culminate in the acquittal. 13. Since evidentiary material placed on record is not sufficient to connect the petitioner with the offence alleged to have been committed by him, there is no justification to let the petitioner face the ordeal of protracted trial, which would otherwise culminate in the acquittal. 13. Hon’ble Apex Court in judgment titled State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 has held that the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. Relevant para is being reproduced herein below:- “7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the 5 inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 14. Subsequently, Hon’ble Apex Court in Vineet Kumar and Ors. Subsequently, Hon’ble Apex Court in Vineet Kumar and Ors. v. State of U.P. and Anr., while considering the scope of interference under Sections 397 Cr.PC and 482 Cr.PC, by the High Courts, has held that High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceedings ought to quashed. The Hon’ble Apex Court has further held that the saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose i.e. a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In the aforesaid case, the Hon’ble Apex Court taking note of seven categories, where power can be exercised under Section 482 Cr.PC, as enumerated in Bhajan Lal (supra), i.e. where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge, quashed the proceedings. 15. Moreover, this court finds that State of Himachal Pradesh vide notification dated 07.02.2023 issued by the Additional Secretary (Home) to the Government of Himachal Pradesh directed all the District Magistrates except District Magistrate, Hamirpur, to take steps to close/ cancel or withdraw the proceedings if any, initiated against the violators of social distancing norms. In the aforesaid communication, it has been recorded that social distances norms were promulgated to curb the Pandemic and to prevent the spread thereof. Since, to great extent, State has been able to achieve its objective in curbing the Pandemic, Government after having deliberated upon the matter, decided to close/ cancel/ withdraw such FIRs/cases, registered across the State of Himachal Pradesh, in the public interest. 16. In view of the detailed discussion made herein above and law taken into consideration, there appears to be sufficient ground for this Court to exercise its inherent jurisdiction under Section 482 Cr.P.C (Section 528 of BNSS), for quashing of FIR and consequent criminal proceedings against the petitioner, to prevent abuse of process of law and to prevent unnecessary harassment of the petitioner against whom there is no evidence to connect her with the commission of offences as incorporated in the FIR. Otherwise also, continuance of the criminal proceedings against the petitioner in the present case would be a sheer wastage of time of the learned trial Court and the same would amount to subjecting the petitioner to unnecessary and protracted ordeal of trial, which is bound to culminate in acquittal. If the evidentiary material collected on record to prove the guilt of the petitioner is perused in its entirety, this is no sufficient material to connect the petitioner with the offence alleged to have been committed by him. To the contrary, if, on the basis of material adduced on record by the investigating agency, trial is allowed to continue, great prejudice would be caused to the petitioner and same would amount to sheer abuse of process of law. 17. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court (supra), FIR No.48 of 2020, dated 20.04.2020, under Sections 269, 270, 188 of Indian Penal Code and Section 51(A) of Disaster Management Act, registered at Police Station Damtal, District Kangra, H.P., as well as consequent proceedings, if any, pending adjudication in the competent court of law are quashed and set aside. The petition stands disposed of in the aforesaid terms, alongwith all pending applications.