Gujarat High Court
Fazal Mohammad Jusabji Khatri vs The State Of Gujarat on 17 March, 2026
NEUTRAL CITATION
R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7831 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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FAZAL MOHAMMAD JUSABJI KHATRI
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
VRUNDA SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/03/2026
JUDGMENT
1. The present application is filed for quashing of FIR No. C. R. 1121101520051 of 2020 registered with Dhangadhra City Police Station for the offenses punishable under Section 188 of the IPC and Section 56 of the Disaster Management Act.
2. The brief facts stated in the FIR are referred hereinbelow.
"The offence is under Section 188 of the IPC and under section 56 of the Disaster Management Act, 2005 that despite there being Nation-wide Pandemic-Disaster declared by the Page 1 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Government of India in view of the Corona virus outbreak, the accused in this case, Fazal Mohammad Zusabji Khatri- working as Deputy Executive Engineer being a Government employee on disregarding the notice to remain present on duty, he has committed an offence by not reporting at the duty. Complaint: Date: 24/04/2020 My name is Uday Lalitprasad Dave, Brahmin by caste, Age:
56 years, occupation: Service, residing at: Sarvoday Society, Block No: 11, near Kunj Nath Derasar, Surendranagar, Mo:
9825135734. On being asked in person, I state that I live with my family at the address mentioned above and serve as In- charge Executive Engineer in the Office of Executive Engineer, Road & Building Department, at District Panchayat, Surendranagar and administration of staff-employees of the offices of Limbdi, Dhrangdhara, Patdi and Surendranagar falls under the aegis of my office.
Wherein, Mr. Fazalmohammad Zusabji Khatri is working as a Deputy Executive Engineer in the office of Deputy Executive Engineer at Dhrangdhara, who is absent from his duty since 20/03/2020 without any prior sanction of the competent authority until this date and despite he being explained telephonically to remain present on the duty frequently, he did not report to duty, which was intimated to our Superior Authority, Mr. Shailesh L. Shah, District Development Officer, who issued notice instructing him to report for the duty on 01/04/2020 through Whats App on his mobile number:
9978427714 to which he gave his explanation on WhatsApp, which was not accepted by the District Development Officer, to which he was explained to be present on duty by me Page 2 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined telephonically.
Despite this, as he was not reporting on the duty, and as his period of absence from duty was exceeding one month, District Development Officer sought for the permission of the District Collector, Surendranagar to initiate proceedings against him as there was a nation-wide pandemic declared on account of Corona virus outbreak, and the Epidemic Act, 1987 and the Disaster Management Act, 2005 being in force, to which the permission to initiate criminal proceedings against Mr. Fazalmohammad Zusabji Khatri (F.Z. Khatri), Deputy Executive Engineer was issued by the Collector, Surendranagar vide letter no: Disa/ DM Act-2005/ WS/ 04/ 2020 dated 22/04/2020.
Thus, it is my complaint to initiate proceeding against Fazalmohammad Zusabji Khatri on being absent from duty. My witnesses shall be those who emerge during the inquiry and I produce the photocopy of necessary documents for legal proceedings against him herewith."
3. Heard learned advocate Ms. Krishna Gajjar for learned advocate Mr. Zubin F. Bharda for the applicants, learned advocate Ms. R. R. Gautam for learned advocate Mr. H. S. Munshaw for the complainant and learned APP Ms. Shah for the State.
4. It is submitted by the learned advocate Ms. Gajjar for the applicant that the FIR was registered for the sole offence under Section 188 of the IPC. It is submitted by learned advocate Page 3 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Ms. Gajjar that the bar of Section 195 would come into play as under Section 195, no cognizance can be taken except on the complaint for the offences, which are stated in the provision. It is submitted by learned advocate Ms. Gajjar that as per the decision rendered by the Hon'ble Apex Court in the case of Devendra Kumar V/s. State (Nct of Delhi) and Another reported in 2025 (0) AIJEL-SC 75760, no cognizance can be taken except on complaint. However, when the FIR is registered for sole offence, the stage of taking cognizance would be immaterial and in that background, the impugned FIR would be nothing but an abuse of the process of law.
5. Learned APP Ms. Shah appearing for the State as well as the learned advocate Ms. Gautam for the complainant submit that as the stage of taking cognizance has not yet arisen, the FIR is maintainable and in that background, the investigation is required to be completed and at this stage, the application is required to be rejected.
6. Having considered the submissions made by the learned advocates for the respective parties and referring to the allegations made in the FIR filed under Section 188 of the IPC and Page 4 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Section 56 of the Disaster Management Act, the only allegation against the applicant is that he did not resume the duty despite having received the notice.
6.1. On referring to the decision which was relied upon by the learned advocate Ms. Gajjar in the case of Devendra Kumar (supra), wherein the Hon'ble Apex Court has held as under:
"34. Section 195 of the Cr.P.C. reads thus:
195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to documents given in evidence.-
(1) No Court shall take cognizance -
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or
(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;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Page 5 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause
(i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Page 6 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
35. As a general rule, any person, having knowledge of commission of an offence may set the law in motion by a complaint, even though he is not personally interested or affected by the offence. There are exceptions to this general rule, as evident from Sections 195 and 196 respectively of the Cr.P.C. Section 195 is one of those sections, which prohibits a court from taking cognizance of certain offences unless and until a complaint has been made by some particular authority or person. The other sections, with similar prescriptions, are sections 196 to 199 of the Cr.P.C. respectively. Section 195 of the Cr.P.C. has been enacted as a safeguard against the irresponsible and reckless prosecutions by the private individuals in respect of the offences, which relate to the administration of justice and contempt of lawful authority.
36. It is true that Section 195 of the Cr.P.C. does not bar the trial of an accused for a distinct offence disclosed by the same set of facts and is not so stated therein. Section 195 also does not provide further that if in the course of the commission of that offence, other distinct offences are committed, the court concerned is debarred from taking cognizance in respect of those offences as well. However, having said so, if the perusal of the first information report makes it clear that the offence Page 7 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined under Section 186 of the I.P.C. is closely interconnected with another distinct offence(s), which in this case is Section 341 of the I.P.C. and it cannot be split up, then in such circumstances, the bar of Section 195 of the Cr.P.C. will apply to such other distinct offence also.
37. In the aforesaid context, we may refer to the following decisions of this Court;
(i) In the case of State of U.P. v. Suresh Chandra Srivastava & Ors., reported in AIR 1984 SC 1108 a three-judge bench very succinctly explained the provisions of Section 195 of the Cr.P.C. and stated that if the other distinct offences form an integral part of the offences as enumerated under Section 195 Cr.P.C so as to fall under the same transaction, then those distinct offences would also be covered under the ambit of Section 195 Cr.P.C. The relevant observations are as under: -
"6. In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120-B IPC are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in section 195, section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of sec. 195 of the Code." (Emphasis supplied)
(ii) In the case of State of Karnataka vs. Hemareddy & Anr.
reported in AIR 1981 SC 1417, this Court held that in the cases where in the course of the same transaction, an offence, for Page 8 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined which, no complaint by a court is necessary under Section 195(1)(b) of the Cr.P.C., and an offence, for which, a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b), Cr.P.C. should be upheld. We may quote the observation as contained in para 8. The same reads as under: -
"8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under s. 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in s. 195(1)(b) of the Code of Criminal Procedure should be upheld." (Emphasis supplied)
(iii) In the case of Saloni Arora vs. State of NCT of Delhi, [ Criminal Appeal No.64 of 2017], decided on 10.01.2017, this Court explained the object of Section 195 of the Cr.P.C., observing as under: -
"10. As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
11. It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:Page 9 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026
NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Cr.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned.
The trial under S.182 without the Tehsildars complaint in writing is, therefore, without jurisdiction ab initio.
12. It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above." (Emphasis supplied)
38. Thus, what is discernible from the decisions referred to above is that if in truth and substance, an offence falls in the category of Section 195, it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences. This Page 10 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined would depend on the facts of each case. However it cannot be laid as a straitjacket formula that the Court cannot undertake the exercise of splitting up. It would depend upon the nature of the allegations and the materials on record.
39. In Basir-ul-huq and others v. State of West Bengal reported in (1953) 1 SCC 637, a three-judge bench of this Court held that the magistrate would not be debarred from taking cognizance of the distinct offences not falling within the ambit of Section 195(1)(a), thereby, effectively stating that the offences falling under Section 195(1)(a) and those not falling under Section 195(1)(a) can be split up. Therein, one of the appellants had lodged an information at the police station that one D had beaten and throttled his mother to death. While the funeral pyre was in flames, the appellants therein along with the police arrived at the cremation ground, extinguished the fire and sent the body of the deceased for post-mortem examination. However, no injury was found on the body of the deceased. Upon investigation, the sub-inspector reached the conclusion that a false complaint had been made against D. Therefore, an offence under Section 182 I.P.C. was made out. However, D had separately instituted a complaint against the appellants and they stood convicted for having committed the offence under Sections 297 and 500 of the I.P.C. respectively. It was in such a circumstance that this Court stated that the Magistrate could take cognizance of the distinct offences i.e., Sections 297 and 500 of the I.P.C. respectively despite the facts also disclosing the commission of an offence under Section 182 I.P.C. for which a complaint by the proper authority under Section 195 Cr.P.C would be a pre-requisite. Opining so, it was observed as Page 11 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined follows:
"12. Section 195 CrPC, on which the question raised is grounded, provides, inter alia, that no court shall take cognizance of an offence punishable under Sections 172 to 188IPC, except on the complaint in writing of the public servant concerned, or some other public servant to whom he is subordinate. The statute thus requires that without a complaint in writing of the public servant concerned no prosecution for an offence under Section 182 can be taken cognizance of. It does not further provide that if in the course of the commission of that offence other distinct offences are committed, the Magistrate is debarred from taking cognizance in respect of those offences as well. The allegations made in a complaint may have a double aspect, that is, on the one hand these may constitute an offence against the authority of the public servant or public justice, and on the other hand, they may also constitute the offence of defamation or some other distinct offence. The section does not per se bar the cognizance by the Magistrate of that offence, even if no action is taken by the public servant to whom the false report has been made. It was however argued that if on the same facts an offence of which no cognizance can be taken under the provisions of Section 195 is disclosed and the same facts disclose another offence as well which is outside the purview of the section and prosecution for that other offence is taken cognizance of without the requirements of Section 195 having been fulfilled, then the provisions of that section would become nugatory and if such a course was permitted those provisions will stand defeated. It was further said that it is not permissible for the Page 12 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined prosecution to ignore the provisions of this section by describing the offence as being punishable under some other section of the Penal Code.
13. In our judgment, the contention raised by the learned counsel for the appellants is without any substance so far as the present case is concerned. The charge for the offence under Section 297IPC, could in no circumstance, as pointed out by the High Court, be described as falling within the purview of Section 195 CrPC. The act of trespass was alleged to have been committed subsequent to the making of the false report and all the ingredients of the offence that have been held to have been established on the evidence concern the conduct of the appellants during the post-report period. In these circumstances, no serious contention could be raised that the provisions of Section 195 would stand defeated by the Magistrate having taken cognizance of the offence under that section.
14. As regards the charge under Section 500IPC, it seems fairly clear both on principle and authority that where the allegations made in a false report disclose two distinct offences, one against the public servant and the other against a private individual, that other is not debarred by the provisions of Section 195 from seeking redress for the offence committed against him. Section 499IPC, which mentions the ingredients of the offence of defamation gives within defined limits immunity to persons making depositions in court, but it is now well settled that that immunity is a qualified one and is not absolute as it is in English law. Under Section 198CrPC, 1898, a complaint in respect of an offence under Section 499IPC, can Page 13 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined only be initiated at the instance of the person defamed, in like manner as cognizance for an offence under Section 182 cannot be taken except at the complaint of the public servant concerned. In view of these provisions there does not seem in principle any warrant for the proposition that a complaint under Section 499 in such a situation cannot be taken cognizance of unless two persons join in making it i.e. it can only be considered if both the public servant and the person defamed join in making it, otherwise the person defamed is without any redress. The statute has prescribed distinct procedure for the making of the complaints under these two provisions of the Penal Code and when the prescribed procedure has been followed, the court is bound to take cognizance of the offence complained of." (Emphasis supplied)
40. In Durgacharan Naik and Others v. State of Orissa reported in AIR 1966 SC 1775, a process server had to execute a writ of attachment against the judgment-debtors, however, there was some resistance when he reached their village. After the arrival of police, the judgment-debtors paid the decretal dues to the process server. However, when the process server and the police were leaving the village and were crossing a nearby river in a boat, the appellant along with 10-12 persons threatened to assault them if their money were not returned. The situation had de-escalated upon the intervention of some outsiders and subsequently, on the next morning, the ASI lodged an FIR against the appellants. While the trial court had acquitted the appellants, the High Court set aside the order of acquittal and convicted them for the offence under Section 353 I.P.C. As regards the charge under Section 186 I.P.C., the High Court Page 14 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined observed that the prosecution was barred under Section 195 Cr.P.C. Finding no infirmity in the judgment of the High Court and allowing the offences to be split up, this Court observed as follows:
"5. We pass on to consider the next contention of the appellants that the conviction of the appellants under Section 353 of the Indian Penal Code is illegal because there is a contravention of Section 195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the ASI It was submitted that the charge under Section 353 of the Indian Penal Code is based upon the same facts as the charge under Section 186 of the Indian Penal Code and no cognizance could be taken of the offence under Section 186 of the Indian Penal Code unless there was a complaint in writing as required by Section 195(1) of the Criminal Procedure Code. It was argued that the conviction under Section 353 of the Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of Section 195(1) of the Criminal Procedure Code and the conviction of the appellants under Section 353 of the Indian Penal Code by the High Court was, therefore, vitiated in law. We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under Section 353 of the Indian Penal Code is based are the same as those constituting the charge under Section 186 of the Indian Penal Code but it cannot be ignored that Sections 186 and 353 of the Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the Page 15 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined two offences are also distinct. Section 186 of the Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under Section 353 of the Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Chapter X of the Indian Penal Code dealing with contempts of the lawful authority of public servants, while Section 353 occurs in Chapter XVI regarding the offences affecting the human body. It is well established that Section 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. [...]
6. In the present case, therefore, we are of the opinion that Section 195 of the Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under Section 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under Section 186 of the Indian Penal Code." (Emphasis supplied)
41. While deciding whether the distinct offences can be split up, courts must remain circumspect. It is agreed that, the law is not that once the facts of a given case disclose an offence falling within the scope of Section 195 Cr.P.C. and also other offences, prosecution can be launched regarding the latter only upon the complaint of the court or the lawfully authority concerned. To hold otherwise would be to extend the scope of Section 195 Cr.P.C. to regions and horizons not contemplated by the legislature. The facts in a case may give rise to distinct Page 16 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined offences including offences against the authority of public servants or against public justice, as also offences against private individuals; the bar under Section 195 of the Cr.P.C. cannot, in such circumstances, affect the offences other than those against public authority or public justice. Prosecution for such other offences does not require the instrumentality of the public authority or court. However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction, and to hold that there can be valid prosecution for offences not mentioned in Section 195 of the Cr.P.C., without the written complaint of the public authority or the court, as the case may be. Courts must be able to see through any attempt to render Section 195 of the Cr.P.C. nugatory by hiding the real nature of the transaction by verbal jugglery. If in principle and substance the offence alleged falls within the categories mentioned in Section 195, the operation of the bar cannot be avoided; if in essence the alleged offence falls outside the categories, the bar would not operate. At the same time, if the facts give rise to distinct offences, some attracting the operation of Section 195 and others not so, the bar can operate only regarding the former and not regarding the latter.
42. Therefore, the courts must ascertain whether during the course of a single transaction, the offences falling within both the categories are committed, in which case it would be difficult to split up the offences or, whether there are two different transactions which occur successively, nevertheless separately and distinctively, in which case the offences may be Page 17 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined split up. One another aspect that may be looked into is whether, apart from the offences committed in contempt of lawful authority of public servants, or against public justice or, relating to documents given in evidence which fall under the scope of Section 195 Cr.P.C., the other distinct offences are of such a nature that private individuals are aggrieved. In such a scenario, it would not be reasonable to bar a private prosecution by the aggrieved individual for the reason that the public official or the court concerned has also not instituted a complaint.
43. Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of the offence punishable under Section 186 I.P.C., unless there is a written complaint by the public servant for voluntarily obstructing him from discharge of his public functions. The object of this provision is to provide for a particular procedure in a case of voluntarily obstructing a public servant from discharging his public functions. The court lacks competence to automatically take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and also to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.P.C. that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Page 18 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026 NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Cr.P.C. like sections 196 and 198 respectively do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. [See: Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119]
44. The test of whether there is evasion or non-compliance of Section 195 Cr.P.C. or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. (supra) and Durgacharan Naik & Ors. (supra), this Court cautioned that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of I.P.C., though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.P.C. Thus, cognizance of such an offence cannot be taken by mis- describing it or by putting a wrong label on it."
6.2. In the present case, the FIR was lodged for the offence punishable under Section 188 (disobedience to an order duly promulgated by a public servant) of the IPC and under Section 56 of the Disaster Management Act (failure of officer in duty or connivance at the contravention of the provisions of the Act).
Page 19 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026NEUTRAL CITATION R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026 undefined Section 188 would attract the mischief of Section 195(1)(a) of the Cr.P.C. and except on a complaint as defined under Section 2(d) of the Cr.P.C., cognizance of the same cannot be taken. Since the present case forms an integral part of the same transaction, for which the offences under the Disaster Management Act cannot be segregated, the FIR registered for the offences punishable under Section 188 of the IPC and Section 56 of the Disaster Management Act cannot be allowed to be sustained as there is no other offence alleged against the applicant. In that background, the impugned FIR deserves to be quashed and set aside.
7. Resultantly, the present application is allowed. FIR No. C. R. 1121101520051 of 2020 registered with Dhangadhra City Police Station is hereby quashed and set aside.
(M. K. THAKKER,J) Vikramsinh Amarsinh Page 20 of 20 Uploaded by Vikramsinh Amarsinh(HCW0055) on Wed Mar 25 2026 Downloaded on : Fri Mar 27 23:07:27 IST 2026