In a relief for BMC commissioner Iqbal Chahal, the Bombay High Court on Friday stayed the criminal proceedings initiated against him by a city magistrate, observing that prima facie no offence was made out as alleged in the complaint.
The process was issued by Mulund Magistrate early this month on a complaint filed by one Ambar Koiri alleging that the BMC commissioner had issued orders that discriminated between vaccinated and unvaccinated citizens during the Covid 19 pandemic.
The process was also issued against former chief secretary Sitaram Kunte and former additional municipal commissioner Suresh Kakani under relevant provisions of the Disaster Management Act.
Chahal challenged this before the HC
Justice Amit Borkar stayed the proceedings observing: “Even if the averments in the complaint are considered at its face value, they do not constitute any offence.” The relief has been granted till final hearing in the plea.
Mr Koiri’s advocate Nilesh Ojha objected to the petition stating that an alternate remedy was available under the criminal procedure code (CrPC).
Counsels for Chahal — Ashok Mundargi and Joel Carlos — argued that Under extraordinary circumstances the court has jurisdiction to entertain the petition and grant relief.
The complaint contends that despite the order of the Home Secretary, central government, that no restrictions will be imposed on interstate movement of persons, the state of Maharashtra had imposed restrictions on movement of perosns in trains, malls, gym and other sports activities. Hence offence made out against Chahal and others.
However, justice Borkar observed that of prima facie averments in the complaint are considered, then the essential ingredient which would constitute an office is not made out.
Also, the order (of restrictions) passed by the Maharashtra government was issued under the Disaster Management Act.
“If the order of issuance of process (by the magistrate) is perused, no material is showed against petitioner that he knowingly disobeyed any order of law or caused injury to any person,” observed the HC.
While staying the magistrate’s order against Chahal, the HC said: “Whenever the court is of the opinion that continuation of process of law will abuse the rights of citizens, the court is bound to protect the citizens.”
The complainant alleged that all accused acted in conspiracy with each other and violated the fundamental rights of many citizens, including him. Hence it sought that action be initiated under various sections of the Indian Penal Code, including cheating and criminal conspiracy; and Disaster Management Act.
