Gujarat High Court
Shaileshbhai Kantibhai Vasava vs State Of Gujarat on 22 June, 2023
NEUTRAL CITATION
R/CR.MA/13885/2018 ORDER DATED: 22/06/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13885 of 2018
==========================================================
SHAILESHBHAI KANTIBHAI VASAVA
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/06/2023
ORAL ORDER
1. Rule returnable forthwith. Mr. Dhawan Jayswal, learned APP waives service of notice of rule for and on behalf of the respondent no.1 - State.
2. By way of present application, the applicant - accused has prayed for the following reliefs:-
6(A) be pleased to admit and allow this petition. (B) be pleased to quash the complaint registered as C.R. No.III-322/2018 with Dabhoi Police Station, District -
Vadodara Rural, under section-145 of the Gujarat Police Act, against the petitioner, in the interest of justice. Page 1 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023
NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined (C) pending admission and/or final disposal of this petition, be pleased to stay the investigation of the complaint registered as C.R.No.III-322/2018 with Dabhoi Police Station, District - Vadodara Rural, under section- 145 of the Gujarat Police Act.
(D) be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.
3. Brief facts of the present case are as under:-
3.1 That the complainant viz.Amarsinh Ganpatsinh, Buckle No.759 serving in Dabhoi Police Station as Unarmed Assistant Sub Inspector has registered a complaint dated 23.06.2018 alleging that he is serving in Dabhoi Police Station as Account Writer Head since past 05 years and Unarmed Police Constable viz.Shaileshbhai Kantibhai, Buckle No.990 started to serve in Dabhoi Police Station from 07.11.2017. That during the tenure of his service from 01.04.2018 onwards the complainant has absented himself from his served and has not presented himself for duty. Therefore, intimation was sent to him to resume his duty by way of communicated outward Page 2 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023 NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined no.1341/2018, dated 26.04.2018 as well as No.1522/2018, dated 21.05.2018 whereby a notice came to be issued and the same was sent towards Vaghodia Police Station for the serve to be effected and last on 21.05.2018, vide outwards no.1522/2018, the said Unarmed Constable was got served the notice by ASI Santoshkumar Ramchandra, Buckle No.741.
However, the Unarmed Police constable did not report for duty and remained absent from his duty. Therefore, permission was sought for from the Superintendent of Police, Vadodara Rural to file complaint under Section-145 of Gujarat Police Act, which was granted vide letter dated 22.06.2018. Therefore, the complainant by alleging that the applicant - accused has absented himself from his duties without reasonable cause registered the impugned FIR.
4. Heard Mr. Zubin Bharda, learned advocate for the applicant and Mr. Dhawan Jayswal, learned APP for the respondent no.1 - State.
5. Mr. Zubin Bharda, learned advocate for the applicant has drawn attention of this Court towards the allegations Page 3 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023 NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined made in the FIR, which is substantially under Section-145 of the Gujarat Police Act. Considering the contents of the FIR, it transpires that the applicant was serving in the Dabhoi Police Station from 07.11.2017 as a Unarmed Constable and from 01.04.208 till 21.05.2018. He remained absent from duty without taking proper leave from the concerned authority. It also transpires that the authority by communication dated 25.04.2018 has served notice under the provision of Section- 145 of the Bombay Police Act. Pursuant to that notice, the applicant has reply by communication dated 04.06.2018 by explaining the reasons for his absence by stating that he has to take care of his mentally retarded sister and also old aged parents. He has also produced on record necessary documents regarding the treatment. Mr. Bharda also submitted that considering these documents as well as considering the fact that the applicant has reported on duty and thereafter, the FIR is registered against the present applicant. Therefore, he has submitted that considering the totality of facts and circumstances of the case and considering the fact that there being sufficient reason for the applicant to not remain present, it cannot be said that the applicant has Page 4 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023 NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined committed an offence under Section-145 of the Gujarat Police Act. Learned advocate further submitted that on bare reading of Section-145(3) of the Gujarat Police Act, which suggests that a Police officer who being absent on leave fails, without reasonable cause to report himself for duty on the expiration of such leave shall, for the purpose of clause (b) or sub-section (2), deemed to withdraw himself from the duties of his office within the meaning of section 29. Therefore, the present complaint filed with a view to harass by some officer and therefore, this court should exercise its discretionary power under Section-482 of Cr.P.C. in view of the judgment of Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604. Therefore, he prays this Court to quash and set aside the impugned FIR registered against the applicant.
6. Per contra, Mr. Dhawan Jayswal, learned APP has strongly opposed the prayer made in the application and submitted that prima-facie, the case is made out, more particularly, as the applicant is serving in the police department, he has not filed any leave report for long absence Page 5 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023 NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined from the duty and after serving a notice under Section-145 of the Bombay Police Act, he has responded by giving explanation, which are not prima-facie found acceptable. Therefore, the FIR is filed against the applicant under Section- 145 of the Bombay Police Act. Therefore, this Court should not exercise its power when the prima-facie case is made out against the applicant. Hence, he prays to dismiss this application.
7. I have considered the rival submissions made at the bar. I have also considered the materials available on record. It transpires that the applicant has not remain present on duty for some period and it is also coming out from the record that the applicant has not filed any report for leave during that period. However, it transpires that the applicant has joined the duty. Notice under Section-145 of the B.P. Act is also issued to the applicant and the applicant has responded that notice by giving explanation for his absence.
8. Section-145 of the Gujarat Police Act is reproduced as under :-
Page 6 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023
NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined Section-145 Penalty for making false statement, etc., and for misconduct of Police officers. -
(1) Any person who makes a false statement or uses a false document for the purpose of obtaining employment or release from employment as a police officer or (2) Any police officer who (a) is guilty of cowardice, or (b) resigns his office or withdraws himself from duties thereof in contravention of section 29, or (c) is guilty of any wilful breach or neglect of any provision oflaw or of any rule, or order which as such police officer, it is his duty to observe or obey, or (d) is guilty of any violation of duty for which no punishment is expressly provided by any other law in force, shall, or conviction, be punished with imprisonment for a term which may extent to '[three years] or with fine which may extend to 4 (one thousand rupees] or with both.
(3) A Police officer who being absent on leave fails, without reasonable cause to report himself for duty on the expiration of such leave shall, for the purpose of clause
(b) or sub-section (2), deemed to withdraw himself from the duties of his office within the meaning of section 29. Page 7 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023
NEUTRAL CITATION R/CR.MA/13885/2018 ORDER DATED: 22/06/2023 undefined
9. On perusal of section-145 and while going through the materials available on record and more particularly, the ingredients of the FIR, the allegations made in the FIR, this court is of the opinion that prima-facie no case is made out and no fruitful purpose would be served to continue with the proceedings pursuant to the FIR, which is filed under Section- 145 of the Gujarat Police Act. Considering the totality of the facts and circumstances of the case and also in view of the judgment of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, this is a fit case to exercise the inherent powers under Section 482 of the Code. Accordingly, this application is allowed. The impugned FIR being C.R. No.III-322 of 2018 with Dabhoi Police Station, District - Vadodara Rural, as well as subsequent proceedings, if any, arising out of the same FIR are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 8 of 8 Downloaded on : Sat Sep 16 20:30:49 IST 2023