INVESTIGATION FOR COVID-19 MUST COMMENCE UNDER SECTIONS 269 OR 270 OF IPC: LEGAL DISCOURSE
Author: Vaibhav Kartikeya Agrawal, B.A.LL.B., LL.M., Advocate
The onset of 2020 witnessed the spread of a pandemic COVID-19 (coronavirus)[i]. The virus is reported to spread from the Wuhan laboratory of China.[ii] According to the National Health Mission, COVID-19 spreads mainly by droplets produced as a result of coughing or sneezing of a COVID-19 infected person. This can happen through direct close contact[iii] as well as indirect contact[iv]. The severity of the disease is depicted by the fact that it has claimed more than seventeen lakh lives all over the World in its initial six months of spread.[v] This might be the reason that the UN Secretary-General warned that the current coronavirus outbreak is the biggest challenge for the World since World War Two.[vi] The risk for safe health is still crucial in India with one crore people infected[vii]. This has necessitated that the offenders of rape cases, trafficking and other cases where the offender directly touches the victim should be tried also for act likely to spread infection of disease dangerous to life. This paper endeavours to state that such investigation must commence under Section 269 of the Indian Penal Code 1860 (hereinafter 'IPC').
SECTIONS 269 AND 270 OF IPC: AN OVERVIEW
COVID-19 is a disease dangerous to life, so any act which is likely to spread infection of such disease would come within the purview of sections 269 or 270 of IPC. Section 269 of IPC states that: Whoever unlawfully or negligently 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 six months or with fine, or with both. Section 270[viii] of IPC provides that whoever 'malignantly' does the offence provided in section 269 of IPC, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The novel COVID-19 may spread through the droplets of sneezing, etc. of any person therefore there are chances of spread of it when the person affected by it touches another person and vice versa.[ix]
Section 7 of the Protection of Children from Sexual Offences Act 2012 (hereinafter 'POCSO Act') provides: Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault. The proposed Section 375A[x] of IPC also penalises 'touchings' contemplated by Section 7 of the POCSO Act. There are petitions filed under Sections 354[xi], 354B[xii] and even 376 which allege touching of hand or any part of the body of the victim. Such touching is also the relevant fact in cases of kidnapping whether it is for rape or any other offence (trafficking and related offences, bonded/ forced labour, etc). Therefore, all these offenders could probably spread COVID-19 to the victim, thus are likely to be prosecuted under sections 269 or 270 of IPC.
WHICH SECTION 269 OR 270 IS APPROPRIATE FOR COMMENCEMENT OF INVESTIGATION FOR COVID-19 PANDEMIC?
The investigation[xiii] of a criminal case commences by lodging of First Information Report[xiv] (hereinafter 'FIR). The police officer registering the FIR has the authority to specify the provisions of IPC for classification of an offence is cognizable or non-cognizable to ensure convenience in the investigation of the offence. Section 269 of IPC penalises any unlawful or negligent act whereas section 270 of IPC penalises any malignant act. Therefore, a question arises whether the police must register FIR under sections 269 or 270 of IPC for investigation? This is because before registering FIR under sections 269 or 270 of IPC, the police are required to determine whether the act alleged to be committed was merely unlawful or negligent or could be said to be malignant.
The weight of discretion is closer to Section 269 of IPC for the following reasons:
1. It has been reported in State of Himachal Pradesh v. Sanjay Kumar[xv] that eighty per cent of the cases of child rape or even rape are by the acquaintances.[xvi] This leads to an inference that the offender, as well as the victim, would have knowledge if the other party has symptoms of COVID-19 and are expected to follow the rules of social distancing, sanitation and other measures[xvii] keeping them away from the conduct described in the definition of sexual assault. The higher acquaintance rate in these cases purport that the act may be unlawful but not out of malice[xviii].
2. A recent report by the Health Ministry mentioned that over 80% of the cases in India are asymptomatic[xix] in nature.[xx] In April 2020, Dr. R. R. Gangakhedkar, head of Indian Council of Medical Research, opined that 69% cases of COVID-19 in India are asymptomatic.[xxi] This purports that neither the victim nor the perpetrator may know that they are a transmitter of coronavirus or carry symptoms of COVID-19. Therefore, they ought not to be alleged for malice in the spread of infection of disease dangerous to life.
3. To prosecute a person for the malignant act, it must be prima facie established that the offender acted with malice. The offender would act with malice probably only when he conflicts with the victim or victim's family for any social or other cause. It would be imperative to note that the act of sexual assault is not associated with malice whereas it is for pleasure or sexual gain[xxii].
4. The offender cannot foresee if the victim is affected by COVID-19. This is the reason that in all cases of rape or abduction or kidnapping or any other offence which involves 'touching' likely to spread the infection of COVID-19, the offender itself takes the high risk of becoming prone to be affected by such disease. Therefore, as a general rule, the offender would take care of himself and would not subject himself to such a high risk of disease. This signifies that the offender cannot exercise malice to spread the infection of disease to another when he is not affected by it.
5. If the offender is tried for the offence under Section 270 of IPC from the initial stage of the investigation, i.e. before the framing of charge, it would be a serious allegation in a pre-trial stage of the investigation. This brings him to the case of injuria sine damnum[xxiii], i.e. legal injury without any damage since the investigation process is fortified by the only substantive evidence, that is, the COVID-19 test result as positive. The commencement of trial under section 269 of IPC would thus, be a violation of the right to life under Article 21 of the Constitution of India within the extended interpretation of it in Maneka Gandhi v. Union of India[xxiv] and Subramanium Swamy v. Union of India[xxv].
The debate of prosecution under sections 269 or 270 of IPC raises a question whether commencement of investigation under section 270 of IPC in few of the cases[xxvi] is condemnable? The answer is: these were the cases of people who returned from foreign countries but refused to adhere to the norms of safety issued by the Government of India to protect the health against COVID-19. These were those who could not be checked for the susceptibility of being infected by COVID-19 and thus posed great risks to anyone who comes in contact.
COVID-19 is a pandemic disease dangerous to life and is thus covered under sections 269 and 270 of IPC. Therefore, there are risks to the offender as well for becoming infected to COVID-19. This paper is based on the hypothesis that every person alleged in an act which involves 'touching' the person of the victim must be prosecuted for COVID-19. It argues for the commencement of investigation under section 269 of IPC rather than section 270 of IPC on the ground that 'malice' is a question of fact which may differ from case to case. Further, it is difficult to ascertain the duration when the offender became infected with COVID-19 and therefore, whether the offender was infected from the victim or vice-versa. So, in my view, the initial investigation must commence under section 269 of the IPC because the offender may exercise his malice only if:
1. its COVID-19 test report comes positive;
2. it disobeys the law or neglects the norms prescribed for safety from COVID-19.
[i] https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses (last visited 26.08.2020).
[iii] https://www.mohfw.gov.in/pdf/PreventionandManagementofCOVID19FLWEnglish.pdf (last visited 26.08.2020). https://apps.who.int/iris/bitstream/handle/10665/112656/9789241507134_eng.pdf?sequence=1 (last visited 26.08.2020).
[iv] https://www.un.org/en/coronavirus/covid-19-faqs (last visited 26.08.2020).
[v] https://www.worldometers.info/coronavirus/coronavirus-death-toll/ (last visited 26.08.2020); https://www.ecdc.europa.eu/en/geographical-distribution-2019-ncov-cases (last visited 12.07.2020); https://ourworldindata.org/grapher/total-deaths-covid-19 (last visited 26.08.2020); https://covid19.who.int/?gclid=EAIaIQobChMI_p_Hkv7w7QIVGn8rCh16Uw3yEAAYASAAEgKPufD_BwE (last visited 28.12.2020).
[vi] https://www.bbc.com/news/world-52114829 (last visited 26.08.2020).
[vii] https://www.statista.com/statistics/1101713/india-covid-19-cases-by-type/ (last visited 28.12.2020); https://www.hindustantimes.com/coronavirus/coronavirus-outbreak-in-india-covid-19-pandemic-latest-updates/ (last visited 28.12.2020); https://www.mygov.in/covid-19 (last visited 26.08.2020). https://www.worldometers.info/coronavirus/country/india/ (last visited 26.08.2020).
[viii] Section 270 of IPC reads Malignant act likely to spread infection of disease dangerous to life.—Whoever malignantly does any act which is, and which he knows or has a reason they 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.
[ix] Supra note 3 and 4.
[x] The Criminal law (Amendment) Bill 2019 provides for the insertion of Section 375A in IPC.
[xi] Tingala Ram Diwakar v. State of Chhattisgarh, CRR/325/2019 filed in the High Court of Chhattisgarh.
[xii] Dular Puri Goswami v. State of Chhattisgarh, MCRC/259/2020 filed in the High Court of Chhattisgarh.
[xiii] On the procedure for investigation, see Chapter XII entitled 'Information to the Police and their Powers to investigate' of Code of Criminal Procedure 1973 (hereinafter 'CRPC).
[xiv] On the procedure for lodging of FIR, see Section 154 of the CRPC entitled 'Information in cognizable cases'.
[xv] (2017) 2 SCC 51.
[xvi] https://www.who.int/violence_injury_prevention/resources/publications/en/guidelines_chap2.pdf at pages 6 and 8 (last visited 26.08.2020).
[xvii] Ministry of Health and Family Welfare, Government of India issued circular entitled 'SOP On Preventive Measures To Contain Spread Of COVID-19 In Offices' dated 4th June 2020, available at https://www.mohfw.gov.in/pdf/1SoPstobefollowedinOffices.pdf (last visited 26.08.2020).
[xviii] On malice, West Bengal State Electricity Board v. Dilip Kumar Ray, AIR 2006 SC; R.S. Garg v. State of U.P., AIR 2006 SC.
[xix] https://indianexpress.com/article/explained/asymptomatic-cases-covid-19-coronavirus-6454677/ (last visited 26.08.2020). Also, see https://www.indiatoday.in/india/story/asymptomatic-coronavirus-patients-silently-spread-disease-to-others-says-study-1687012-2020-06-09 (last visited 26.08.2020).
[xx] https://timesofindia.indiatimes.com/life-style/health-fitness/health-news/coronavirus-spread-new-study-says-some-people-might-be-spreading-covid-19-more-than-others/photostory/76197385.cms?picid=76197558 (last visited 26.08.2020).
[xxi] https://indianexpress.com/article/explained/asymptomatic-cases-covid-19-coronavirus-6454677/ (last visited 26.08.2020).
[xxiii] https://www.srdlawnotes.com/2015/10/injuria-sine-damno.html (last visited 26.08.2020). The doctrine injuria sine damnum is the corollary to damnum absque injuria. For commentary, see e-book, available at https://archive.org/stream/doctrinedamnuma00weekgoog/doctrinedamnuma00weekgoog_djvu.txt (last visited 26.08.2020).
[xxiv] (1978) 1 SCC 248.
[xxv] (2016) 7 SCC 221.
[xxvi] https://indianexpress.com/article/explained/explained-what-are-sections-269-270-ipc-invoked-against-those-accused-of-spreading-disease-6336810/ (last visited 26.08.2020). https://www.guwahatiplus.com/daily-news/lockdown-violators-to-be-booked-under-ipc-sections-269-270 (last visited 26.08.2020).