Restrictions cannot be imposed retrospectively once well settled: High Court of Delhi.

IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 6th September 2021 Decided on: 12th October 2021 Represented by: Mr.M.R. Shamshad Mr.Arijit Sarkar and Ms.Nabeela Jamal Advocates STATE OF NCT OF DELHI & ORS Represented by: Mr.G.M. Farooqui APP for the State with SI Vijay PS Madhu Vihar HON BLE MS. JUSTICE MUKTA GUPTA By this petition petitioner seeks quashing of charge sheet dated 2nd April 2021 filed by the respondent State in FIR No.102 2020 dated 7th April 2020 registered at PS Madhu Vihar District East New Delhi for offences punishable under Section 188 IPC and Section 3 of the Epidemic Disease Act 1897 Grievance of the petitioner in the present petition is to the invocation of the quarantine order retrospectively and on the basis of an alleged violation based on the phone call detail of the petitioner the above noted FIR stood registered and a charge sheet filed Briefly the facts resulting in registration of the FIR No.102 2020 are that the petitioner left India for France on 19th October 2019 and returned back to India on 5th February 2020. When the petitioner returned back to India no orders directing mandatory institutional home quarantine were in force. On 30th January 2020 WHO declared Covid 19 as a public health Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:13.10.202109:49:45Signature Not Verified emergency. Much after the petitioner came back to India from France on 5th February 2020 the Government of India on 12th March 2020 issued guidelines in the wake of Covid 19 situation thereby asking people to follow mandatory quarantine norm of 15 days for those who had travelled to and from China Italy Iran Republic of Korea France Spain and Germany On 14th March 2020 a person representing to be from Health Department visited the residential premises of the petitioner and asked about his travel plans which the petitioner informed. The petitioner also informed that he had no symptoms of Covid 19. On 22nd March 2020 the Government of India announced one day Janta Curfew followed by the complete lockdown for a period of 21 days in order to contain the effect of spread of Covid 19. On 7th April 2020 the above noted FIR was registered against the petitioner under Section 188 of the IPC Section 3 of the Epidemic Disease Act 1897 The allegations in the FIR were that the petitioner was directed to keep himself in home quarantine from 16th March 2020 to 30th March 2020. To track the movement of the petitioner the CDR of his mobile phone was taken out and it was noticed that on 19th 20th 23rd March 2020 and many other times he violated the condition of home quarantine visiting various places without informing the competent authority endangering the life of general public On 4th December 2020 the petitioner came to know about registration of the said FIR. On 25th March 2021 the petitioner was served with a notice under Section 41A of Cr.P.C. to appear at PS Madhu Vihar on 27th March 2021 at 4.00 PM. On 2nd July 2021 summons were issued to the petitioner. On 7th July 2021 the petitioner received a phone call from PS Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:13.10.202109:49:45Signature Not Verified Madhu Vihar asking him to collect the summons hence the present petition As per the FIR on 19th 20th 23rd March 2020 and many other times the petitioner violated the norms which fact came to be known to the respondent by analysing the call detail records of the petitioner. A status report in response to the present petition has been filed by the State According to the status report the CDR of the petitioner’s mobile phone was obtained from 15th March 2020 to 6th April 2020 and on 3rd April 2020 the petitioner was found violating as he was found roaming at different places on 3rd April 2020 Relevant clauses 12 and 17 of the guidelines issued by the Ministry of Home Affairs dated 24th March 2020 are as under 12. All persons who have arrived into India after 15.02.2020 and all such persons who have been directed by health care personnel to remain under strict home institutional quarantine for a period as decided by local Health Authorities failing which they will be liable to legal action under Sec. 188 of the x x x 17.Any person violating these containment measures will be liable to be proceeded against as per the provisions of Section 51 to 60 of the Disaster Management Act 2005 besides legal action under Sec. 188 of the IPC The issue in the present petition is that the petitioner having come to India on 5th February 2020 whether the guidelines issued by the respondent which were applicable from 15th February 2020 could have been made applicable to the petitioner from 5th February 2020. It is well settled that a restriction cannot be imposed retrospectively. The guidelines dated 24th March 2020 were made applicable from 15th February 2020. However the petitioner had entered India on 5th February 2020 and not on or after 15th Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:13.10.202109:49:45Signature Not Verified February 2020. As per the charge sheet the petitioner violated the quarantine order dated 16th March 2020 which was in force till 30th March 2020 when the guidelines were applicable to the people who had come on or after 15th February 2020 the petitioner not falling in that category having entered India on 5th February 2020. Thus this Court is of the considered view that the very genesis of the prosecution case against the petitioner is faulted. Further though the case in the charge sheet is for violation on 19th 20th and 23rd March 2020 till 30th March 2020 however now in the status report it is alleged that the petitioner was out on 3rd April 2020 It is thus evident that an all together new case is now being made out in the status report which is contrary to the charge sheet 10. Be that as it may besides the conflicting stands in the charge sheet and the status report the fact that once the guidelines issued on 24th March 2020 were applicable for people entering India on or after 15th February 2020 the same could not have been given further retrospective operation for the petitioner who had arrived in the country on 5th February 2020 therefore the petitioner cannot be subjected to the prosecution for the offences as mentioned above 11. Consequently FIR No.102 2020 under Section 188 of the IPC and Section 3 of the Epidemic Disease Act 1897 registered at PS Madhu Vihar East District New Delhi and the proceedings pursuant thereto are quashed Petition is disposed of 13. Order be uploaded on the website of this court OCTOBER 12 2021 ‘vn’ Digitally Signed By:JUSTICEMUKTA GUPTASigning Date:13.10.202109:49:45Signature Not Verified 

Summary: Restrictions cannot be imposed retrospectively once well settled: High Court of Delhi. Section 188 in The Indian Penal Code deals with Disobedience to order duly promulgated by public servant which states that whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both, Section 3 in The Epidemic Diseases Act, 1897 deals with Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860).This concept was often misused due to lack of guidance and averments the landmark judgement given by single Judge Bench lead by JUSTICE MUKTA GUPTA in the case of SARMAD AHMED V. STATE OF NCT OF DELHI &amp; ORS. (CRL.M.C. 1681/2021) explained the above issue. In this case the petitioner left India for France on 19th October, 2019 and returned back to India on 5th February, 2020. Much after the petitioner came back to India from France on 5th February, 2020, the Government of India on 12th March, 2020 issued guidelines in the wake of Covid-19 situation thereby asking people to follow mandatory quarantine norm of 15 days for those who had travelled to and from China, Italy, Iran, Republic of Korea, France, Spain and Germany. On 7th April, 2020 the above noted FIR was registered against the petitioner under Section 188 of the IPC, Section 3 of the Epidemic Disease Act, 1897. It was noticed that on 19th, 20th, 23rd March, 2020 and many other times he violated the condition of home quarantine, visiting various places without informing the competent authority, thereby endangering the life of general public. On 25th March, 2021 the petitioner was served with a notice under Section 41A of CRPC to appear at PS Madhu Vihar on 27th March, 2021 at 4.00 PM. On 2nd July, 2021 summons were issued to the petitioner. On 7th July, 2021 the petitioner received a phone call from PS Madhu Vihar asking him to collect the summons, hence the present petition.    The Hon’ble High Court of Delhi after analyzing the facts and averments made on this case, “The very genesis of the prosecution case against the petitioner is faulted. Besides the conflicting stands in the charge-sheet and the status report, the fact that once the guidelines issued on 24th March, 2020 were applicable for people entering India on or after 15th February, 2020 the same could not have been given further retrospective operation for the petitioner who had arrived in the country on 5th February, 2020, therefore the petitioner cannot be subjected to the prosecution for the offences as mentioned above. Consequently, the FIR and proceedings pursuant thereto are quashed.”