The news is replete with instances of violation of advisories issued by the Government to prevent the spread of coronavirus. In the wake of such delinquencies, the State Governments are resorting to various penal provisions under the Indian Penal Code (The Code or IPC). Section 307 is one of the various sections being invoked. It deals with the offence of attempt to murder. This article primarily aims to answer whether such offenders can be brought to book under attempted murder or they should be tried under other specific penal provisions such as those contained in Chapter XIV of the Code which deals with offences affecting the public health and safety. This article divides the offenders into two categories – those voluntarily trying to spread the disease and those who are not disclosing their travel history and analyses both these scenarios individually.

Case 1: Voluntarily attempting to spread COVID19
Cases of patients and prospective patients spitting on healthcare workers and police personnel, in a bid to further spread the disease were reported from Tamil Nadu, Uttarakhand and Himachal Pradesh among other States. All of these States have resorted to Section 307 to bring such offenders to book.

For conviction under Section 307 IPC, all ingredients of murder save and except the death of the victim are to be found. The prosecution has to prove that there was an intention to commit murder and some overt act towards its commission. As coronavirus is highly contagious, the act of spitting can be considered as the overt act.

The mens rea required for attempted murder is the same as that of murder under Section 300. This entails that the prosecution has to prove that the act was done with the intention or knowledge of causing death or such bodily injury that i) the accused knew is likely to cause the death of that person (Section 300 secondly); ii) is sufficient in the ordinary course of nature to cause death (Section 300 thirdly); or iii) the act done is so imminently dangerous that in all probability it will result in death (Section 300 fourthly).

300 secondly is not relevant for our analysis as it requires the accused to have prior knowledge of some ‘peculiar physical condition’ of the victim, which will be absent in case of interaction between strangers.
300 thirdly requires a twofold probe –first that the act should be intentional and not accidental, second that the act was sufficient, in the ordinary course of nature, to cause death. It is amply clear that the first stage is cleared as the act of spitting on health care workers and police is intentional. The second part warrants a deeper analysis as to whether spitting is sufficient in the ordinary course of nature to cause death. ‘In the ordinary course of nature’ to cause death is not an injury which will inevitably and in all circumstances cause death, it merely means that death will be the most probable result. Also, in judging whether the injury is sufficient in the ordinary course of nature to cause death, the possibility of skilled medical treatment to mitigate the risk of death is wholly irrelevant.
As we know that coronavirus is very likely to spread by respiratory droplets of affected parties in close contact. So, it is likely that such an act might lead to the officials being infected with the disease. Most people infected with the COVID-19 will experience mild to moderate respiratory illness and recover without requiring special treatment. But if the victim is a patient of medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer, then they are more likely to develop serious illness. Poor health is rampant in India- in fact, one in six Indians are diabetic, we also top the world in lung disease deaths. However, even this cannot drive us to the conclusion that death will be the most probable cause of the infection as death rates for COVID-19 is a low 3.23%, which means that most of those affected will heal. Therefore, it cannot be said that death is the most probable outcome of the guilty act of spitting.

Further, the guilty act cannot be brought under the ambit of Section 300 fourthly. As fourthly requires the action of the accused to be so imminently dangerous that it will in all probability cause death. Clearly, the preceding discussion it can be concluded that this is not the case. When it comes to the requirement of intention under Section 300 thirdly or fourthly, it is a matter of fact.

However, the successful conviction of the offenders under Section 270 IPC, that is, ‘malignant act likely to spread infection of disease dangerous to life’ is almost certain. The most important ingredient of this offence is that the actus reus must be shown as likely to spread an infectious disease which is inimical to life. As discussed above, the guilty act of spitting on healthcare workers is likely to infect them with COVID-19 and thus, fulfilling the essential ingredients of Section 270.

Case 2: Non-Disclosure of Travel History
States of Himachal Pradesh, Uttarakhand, and Haryana, have booked certain people for failing to come forward and disclose their travel histories, for the offence under Section 307. As already noted, for the conviction under Section 307 to succeed the prosecution will have to prove that an overt act was done with the intention to commit murder. The act of hiding travel history cannot be classified as an overt act towards the commission of murder. Secondly, mere hiding one’s travel history cannot be construed as an intention to cause such a bodily injury that is either sufficient in the ordinary course of nature to cause death or so imminently dangerous that it will in all probability cause death of someone. Charging people under Section 307 for hiding travel history simply amounts to overcharging by the prosecution.

However, such offenders can be booked under Section 188 IPC. S.188 punishes disobedience of orders promogulated by the public servants. Under Section 188 the prosecution has to prove – a) that an order is promogulated by a public servant and the public is made aware of it, and b) disobedience of such an order tends to cause risk to human life and health. Orders coaxing people to disclose their travel history has been released by government authorities and are in wide circulation. It also goes without saying that disobedience of such orders will in all likelihood put life and health of others at risk. Therefore, a conviction under s.188 IPC is more appropriate.

Action Taken in Other Jurisdictions
India is not the only country resorting to stricter penal laws to curb the spread of COVID-19. South Korea is charging leaders of a religious sect with attempted murder for organizing congregation despite orders by the government to the contrary and also for hiding names of the people who attended the congregation. South Africa is charging COVID-19 infected people with attempted murder for not observing self-isolation. It is to be noted that South Africa had resorted to similar provisions to curb HIV spread in the country. However, such measures had only resulted in marginalization and non-disclosure of the patients.

Concluding Remarks
Convictions of those who are voluntarily trying to spread the virus and those hiding their travel histories under Section 307 will fail at the trial stage. The invocation of the non-bailable offence of Section 307 with punishment stricter than that of the offences under Sections 188, 269, 270 and 271 comes out as a case of overcharging by the prosecution. It is also to be noted that Sections 269, 270, 188 are cognizable offences and therefore, they can be as effective as Section 307 for the purpose of timely detention of the offender. The Government might have found its reason in the ‘deterrence effect’ in the belief that stricter punishment will lead to lesser number of offenders. However, such harsh measures, especially in the case of non-disclosure of travel history, will possibly lead to increased fear among possible patients and eventually hamper them from reporting the symptoms.
The article has been written by Mitali Kshatriya

This article was first published in the Blog namely The Criminal Law Blog