Gujarat High Court
Vishal Meghjibhai Dhameliya vs State Of Gujarat on 8 July, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15928 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHAL MEGHJIBHAI DHAMELIYA & 7 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
GAURAV H PANDYA(9271) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MR BM MANGUKIYA(437) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1,2,3,4,5,6,7,8
NOTICE SERVED for the Respondent(s) No. 2
MS. M. D. MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 08/07/2022
ORAL JUDGMENT
1. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (for short, the 'Code'), the Page 1 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022 R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022 petitioners have prayed for quashing and setting aside the FIR being C.R.No.I-69 of 2016 registered with Ghogha Road Police Station, District:- Bhavnagar for the offences punishable under Sections 143, 146, 337, 353, 186 and 504 of the Indian Penal Code and section 120 of the Gujarat Police Act and Criminal Case No. 2477 of 2017 pending in the Court of Judicial Magistrate, Bhavnagar.
2. Heard learned advocate Mr. B. M. Mangukiya for the petitioners and learned APP Ms. M. D. Mehta for the respondent - State.
3. By consent of learned advocates appearing for the parties, the matter is taken up for final hearing today. Hence, RULE. Learned APP waives service of notice of rule for and on behalf of the respondent - State.
4. It is the case of the petitioner that the FIR being C.R.No.I-69 of 2016 was registered with Ghogha Road Police Station on 12.09.2016 for the incident which is alleged to have occurred on 11.09.2016. The allegations in FIR is that there was a function 11.09.2016 of the Hon'ble Chief Minister at Page 2 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022 R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022 Sardarnagar, Bhavnagar and some of persons belonging to Patidar Community were detained under section 68 of the Gujarat Police Act. It was further alleged that for getting the aforesaid persons released, the petitioners and 40 to 50 other persons belonging to Patidar Community formed an unlawful assembly and came in the Police Station and started shouting and abusing by using derogatory words. It is alleged that though police personnels were posted and on account of the said incident, one journalist has sustained injuries. It is alleged that the petitioners have obstructed the police from doing their lawful duty and therefore, the aforesaid FIR was registered under sections 143, 146, 337, 353, 186 and 504 of the Indian Penal Code r/w section 120 of the Gujarat Police Act.
5. Learned advocate Mr. B. M. Mangukiya appearing for the petitioners has submitted that the FIR is registered against the petitioners under sections 186 of the Indian Penal Code which is non cognizable offence, bailable and triable by any Magistrate. Section 195 of the Criminal Procedure Code provides that the offence punishable under sections 172 to 188 of the Indian Penal Code are non-cognizable offence and no Page 3 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022 R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022 Court shall take cognizance of any offences except on a complaint in writing of the public servant given to the Court. Learned advocate Mr. Mangukiya submitted that in the instant case for offence punishable under section 186 of the Indian Penal Code and FIR was registered and no complaint is filed before the competent Court, which is contrary to the provisions of the law and therefore, the entire FIR is required to be quashed and set aside.
6. Learned advocate Mr. Mangukiya for the applicant relied upon the CAV judgment dated 13.04.2017 in case of Govardhankumar Thakoredas Asrani V/s. State of Gujarat and others. passed in Criminal Misc. Application No. 24632 of 2015 reported in 2018 (1) GLH 63. Learned advocate Mr. Mangukiya pointed out that by considering the judgments in five other matters, the Coordinate Bench ultimately quashed and set aside the FIR and prayed that the impugned FIR being C.R.No.I-69 of 2016 registered with Ghogha Road Police Station, District:- Bhavnagar and Criminal Case No. 2477 of 2017 pending in the Court of Judicial Magistrate, Bhavnagar may be quashed and set aside.
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7. Learned APP Ms. M. D. Mehta appearing for the respondent -
State vehemently opposed this petition, however, she could not dispute the propositions of law cited by learned advocate Mr. Mangukiya for the applicant. However, learned APP Ms. Mehta submitted that liberty may be reserved in favour of the respondent to initiate fresh proceedings by following the procedure prescribed under the law.
8. Except the aforesaid submissions and the judgment referred above, no other judgments were cited nor any submissions were made by the learned advocates for the parties.
9. This Court has considered the submissions of the rival parties and examined the matter from the aforesaid point of view. Section 186 of the Indian Penal Code reads as under:-
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
10. Section 195 (1) of the Criminal Procedure Code reads as under:-
1) 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 Page 5 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022 R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022
(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;
11. Both these sections as well as submissions made by learned advocate Mr. Mangukiya were considered by this Court in case of Govardhankumar Thakoredas Asrani V/s. State of Gujarat and by relying upon the judgments in respect of five other matters in paragraph no. 53, 54, 55, 56 and 57, the Court has observed as under:-
53. I take notice of the fact that in the following matters, the charge-sheets are yet to be filed.
(1) Criminal Misc. Application No.24379 of 2016; (2) Criminal Misc. Application No.20831 of 2015; (3) Criminal Misc. Application No.21601 of 2016; (4) Criminal Misc. Application No.23399 of 2016; and (5) Criminal Misc. Application No.26688 of 2016;
54. There is no doubt that the position of law is quite clear.
55. Mr. Amin, the learned Public Prosecutor appearing for the State submitted that even if the prosecutions are to be quashed on the ground of bar of section 195, it is always open for the State to initiate fresh proceedings by following the procedure prescribed by law. It goes without saying, and the State need not even seek permission of this Court in this regard.
56. I am of the view, having regard to the nature of the allegations levelled in the five matters referred to above, which are at the stage of investigation, that the first information reports should be quashed with liberty to the State to initiate fresh proceedings by following the procedure prescribed by law. Whatever investigation has been carried out so far, the same will not be rendered Page 6 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022 R/CR.MA/15928/2017 JUDGMENT DATED: 08/07/2022 invalid. For the purpose of initiating fresh proceedings in accordance with law, the very same materials can be used. In such circumstances, as an exception, and without being cited as a precedent, in the peculiar facts of the case, I am inclined to interfere even in those cases where the charge- sheets have not been filed. I take notice of the fact that in all the five cases, referred to in para-53 of this judgment, the investigation is practically over, and the only thing left, is to file the charge-sheet.
57. For the foregoing reasons, all the applications succeed and are hereby allowed. The proceedings of the criminal cases, referred to in the earlier part of the judgment, pending in the different courts, are hereby ordered to be quashed. The first information reports, which are yet to culminate in a chargesheet, are also hereby ordered to be quashed. It is clarified that it shall be open to the State to file fresh proceedings against the applicants by following the procedure prescribed by law. If the issue, as regards the limitation, as prescribed under section 468 of the Cr.P.C., crops up, then the court concerned shall consider the provisions of section 473 of the Cr.P.C. Rule is made absolute to the aforesaid extent in each of the cases.
12. In view of the aforesaid settled principles of law, this petition is also required to be allowed by quashing and setting aside the FIR being C.R.No.I-69 of 2016 registered with Ghogha Road Police Station, District:- Bhavnagar as well as Criminal Case No. 2477 of 2017 pending before the Court of Judicial Magistrate, Bhavnagar. However, as far as submissions of learned APP Ms. M. D. Mehta appearing for the respondent - State to initiate fresh proceedings is concerned, State is at liberty to initiate fresh proceedings if permissible under the law.
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13. The present petition succeeds. The impugned FIR being C.R. No. C.R.No.I-69 of 2016 registered with Ghogha Road Police Station, District:- Bhavnagar and Criminal Case No. 2477 of 2017 pending in the Court of Judicial Magistrate, Bhavnagar. are quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 8 of 8 Downloaded on : Thu Jul 14 21:21:01 IST 2022