Bombay High Court
Swapnil S/O Suresh @ Keshav Tandulkar ... vs State Of Mah. Thr. Pso Ps Nandgaon ... on 10 August, 2022
Author: Manish Pitale
Bench: Manish Pitale
26-APL402.21-Judgment.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLN. (APL) NO. 402 OF 2021
APPLICANTS : 1. Swapnil s/o Suresh @ Keshav
Tandulkar, Aged about 31 years,
Occu. - Pvt. Job,
2. Suresh @ Keshav s/o Gulabrao
Tandulkar, Aged about 62 years, Occ.:
Nil,
3. Nanibai w/o Suresh @ Keshav
Tandulkar, Aged about 56 years, Occ.:
Household,
4. Niranjan s/o Ganpat Karmore, Aged
about 56 years, Occ.: Teacher,
All R/o. At Post Shivani Rasulapur,
Tq. Nandgaon Khandeshwar, Dist.
Amravati.
-VERSUS-
NON-APPLICANTS : 1. State of Maharashtra, through Police
Station Officer, Police Station
Nandgaon Khandeshwar, Tq.
Nandgaon Khandeshwar, Dist.
Amravati.
2. Sadashiv s/o Balaji Devkatte, Aged
about 31 years, Occ.: Police
Constable, Police Station, Nandgaon
Khandeshwar, Tq. Nandgaon
Khandeshwar, Dist. Amravati.
KHUNTE
26-APL402.21-Judgment.odt
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Ms Aastha R. Sharma, counsel for the applicants.
Mr.S.M.Ghodeswar, APP for non-applicant No.1.
None for non-applicant No.2.
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CORAM : MANISH PITALE &
VALMIKI SA MENEZES, JJ.
DATE : 10.08.2022
ORAL JUDGMENT (Per : Manish Pitale, J.)
Heard.
2. Admit. Heard finally with the consent of the learned counsel appearing for the parties. Though non-applicant No.2 is duly served, none has appeared on his behalf.
3. By this application, the applicants have sought quashing of First Information Report (FIR) No.351 of 2020, dated 08/12/2020, registered against them at Police Station Nandgaon Khandeshwar, District Amravati for offences punishable under sections 188, 270, 332, 353, 504 and 506 read with section 34 of the Indian Penal Code (IPC) and sections 2, 3 and 4 of the Epidemic Diseases Act, 1897. The applicants have also sought quashing of charge-sheet filed KHUNTE 26-APL402.21-Judgment.odt 3/11 in pursuance of the aforesaid FIR, submitting that even if the entire material that has come on record is to be taken for consideration, the ingredients of the said offences are not made out against the applicants and that therefore, the present application deserves to be allowed.
4. The non-applicant No.2 caused the aforesaid FIR to be registered against the applicants on the basis of an oral report submitted to the concerned Police Station. The allegation against the applicants was that while there was a protest of farmers happening at a bus stand, when the applicants were confronted as to whether they were part of the protest, an altercation occurred with non-applicant No.2, leading to registration of the said offences against them.
5. Ms Aastha Sharma, learned counsel appearing for the applicants, submitted that the contents of the oral report leading to registration of the FIR and the entire documents and statements that have come on record along with the charge-sheet would show that none of the ingredients of the alleged offences are made out against the applicants. She submitted that applicant No.1 was at the KHUNTE 26-APL402.21-Judgment.odt 4/11 concerned bus stand to board a bus to reach Pune, where he had secured employment and that applicant Nos.2 and 3, who happened to be his parents and applicant No.4, who is his teacher, had come to the bus stand to see him off. According to the applicants, non-applicant No.2, who was not even in uniform, suddenly approached them and questioned as to whether they were part of the farmers protests that were happening at the bus stand. There was no reason for the applicants to believe that non-applicant No.2 was a public servant, although he claimed to have been a secret Police constable. According to the applicants, they did not indulge in any of the actions alleged against them and that in any case, there was nothing to show that non-applicant No.2 was indeed a public servant, who was deterred from performing his duty by the applicants.
6. Insofar as the other offences are concerned, it was submitted that the statements of the alleged witnesses recorded during the course of investigation would show that none of the ingredients of the other offences were made out against the applicants. Insofar as the offences punishable under sections 270 and 188 of the IPC, as also the alleged offences under the provisions of the Epidemic KHUNTE 26-APL402.21-Judgment.odt 5/11 Diseases Act, 1897, are concerned, reliance was placed on the judgment of the Division Bench of this Court in the case of HLA SHWE and others v. State of Maharashtra through Police Station Tahsil, Nagpur, reported in 2020 (6) Mh.L.J. (Crl.) 624. It was submitted that the said judgment covered the position of law completely in favour of the applicants, thereby demonstrating that the offences under the said provisions could not have been established against the applicants at all, in the manner in which they were registered at the behest of non-applicant No.2. On this basis, it was submitted that the present application deserved to be allowed.
7. On the other hand, Mr.Ghodeswar, learned APP appeared for non-applicant No.1 and submitted that the material brought on record along with the charge-sheet ought to be perused by this Court to examine as to whether the ingredients of the offences are made out against the applicants. The position of law laid down by this Court in the case of HLA SHWE and others v. State of Maharashtra through Police Station Tahsil, Nagpur (supra), was not disputed.
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8. The non-applicant No.2, despite service, chose not to appear before this Court.
9. Having heard the learned counsel for the rival parties and upon perusal of the material placed on record, we are of the opinion that it needs to be examined whether offences punishable under sections 270 and 188 of the IPC, as also the provisions of the Epidemic Diseases Act, 1897, could have been registered at all against the applicants herein.
10. A perusal of the judgment of this Court in the case of HLA SHWE and others v. State of Maharashtra through Police Station Tahsil, Nagpur (supra) would show that insofar as section 188 of the IPC is concerned, after referring to the ingredients of the said offence and while referring to the position of law laid down by the Hon'ble Supreme Court in that context, the Division Bench of this Court held as follows:
"18. Section 188 of the Indian Penal Code deals with disobedience to orders duly promulgated by the public servant. The offence, as already stated, is allegedly disobedience to the orders duly promulgated by the Collector. Section 195 of the Code lays down that no Court shall take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing to the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, there is no KHUNTE 26-APL402.21-Judgment.odt 7/11 complaint filed by Collector or his subordinate officer. The Sub- Inspector of Police has filed the charge-sheet. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206], the Hon'ble Supreme Court held that the prosecution under Section 182 of the Indian Penal Code must be on a complaint in writing by the Tahsildar (public servant). In view of absolute bar against the Courts for taking cognizance of the offence punishable under Section 182 of the Indian Penal Code, except in the manner provided by Section 195 of the Code, the said judgment equally applies to the offence under Section 188 also. In the present case, there is no complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate. Therefore, in view of the bar under Section 195(1)(a) of the Code, the learned Magistrate ought not to have taken cognizance of the offence punishable under Section 188 Indian Penal Code on the report submitted by the Sub-Inspector of Police. Therefore, we are of the considered view that the cognizance is taken contrary to the specific bar envisaged under Section 195(1)(a) of the Code. In M.S.Ahlawat v. State of Haryana [2000(1) SCC 278], the Hon'ble Supreme Court considered the provisions prescribed under Section 195 of the Code at length and observed in paragraph 5 as under:
"5. ...Provisions of Section 195 CrPC, 1973 are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."
19. In C. Muniappan v. State of T.N., [(2010) 9 SCC 567], the Hon'ble Supreme Court observed in para 33 as under:
"33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section195 Cr.P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such a complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
20. In that view of the matter, no prosecution could have been launched against the applicants under Section 188 of the Indian Penal Code based on a written report submitted by the Police. No F.I.R. could have been registered by the police for an offence KHUNTE 26-APL402.21-Judgment.odt 8/11 punishable under Section 188 of the Indian Penal Code. The legislative intention appears to be clear from the language of Section 195(1) of the Code, which prescribes that where an "offence" is committed under Section 188 of the Indian Penal Code, it would be obligatory that the public servant before whom such an "offence" is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. Hence, registration of an F.I.R. for an offence under Section 188 of Indian Penal Code is not permitted in law at the instance of Police."
11. Perusal of the aforesaid position of law clarified in the above quoted judgment would show that the FIR for offence punishable under section 188 of the IPC could not have been registered at all on oral report of non-applicant No.2 and that therefore, to that extent the application deserves to be allowed. Insofar as sections 2, 3 and 4 of the Epidemic Diseases Act are concerned, at the most section 3 thereof could have been invoked, which again is relatable to section 188 of the IPC, thereby indicating that offences under the provisions of the said Act could not have been registered on the oral report of non-applicant No.2.
12. Insofar as section 270 of the IPC is concerned, the said offence pertains to an act done, which was likely to spread infection of disease dangerous to life. In the said judgment in the case of HLA SHWE and others v. State of Maharashtra through Police Station Tahsil, Nagpur (supra) in paragraph 14, the Division Bench KHUNTE 26-APL402.21-Judgment.odt 9/11 of this Court made observations as regards the ingredients of sections 269 and 270 of the IPC and in the facts of that case, it was found that no such offence was even prima facie made out. In the present case also, a perusal of the oral report submitted by non-applicant No.2 and statements given by the alleged witnesses nowhere make out ingredients of section 270 of the IPC and merely because the applicants were allegedly not wearing masks, could not lead to registration of offence under section 270 of the IPC.
13. As regards offence punishable under section 353 of the IPC, we are of the opinion that the said section could have been invoked in the first place, if there was prima facie material to demonstrate that the applicants could be said to be aware about non-applicant No.2 being a public servant. Even as per the statement given by non-applicant No.2 and the material that has come on record along with the charge-sheet, it is nowhere stated that non-applicant No.2 was in uniform when he interacted with the applicants. There was no way in which the applicants could have been aware about the fact that non-applicant No.2 was a constable. There is also no allegation that non-applicant No.2 made the applicants aware about KHUNTE 26-APL402.21-Judgment.odt 10/11 his status of being a constable (public servant) by showing an identity card or otherwise. In such circumstances, we are of the opinion that the basic ingredients of section 353 of the IPC are found to be missing, inasmuch as the non-applicant No.2 could not have been perceived as a public servant by the applicants on the date and time of the incident. Therefore, invoking section 353 of the IPC was misplaced in the present case.
14. Insofar as sections 332, 504 and 506 read with section 34 of the IPC are concerned, we have perused the statements given by the alleged witnesses, who are all Police personnel. None of the statements or even the oral report submitted by non-applicant No.2 indicate that the ingredients of the aforesaid offences are made out against the applicants. In fact, in the oral report submitted by non-applicant No.2 himself, he has stated that the incident was triggered when a query was put to the applicants as to whether they were part of the farmers protests at the date and time of the incident. This indicates that non-applicant No.2 himself was not sure as to whether the applicants were indulging in the protest, which had taken place at the date and time of the incident. Therefore, we are convinced that none of the ingredients of the KHUNTE 26-APL402.21-Judgment.odt 11/11 offences alleged against the applicants are made out and that no purpose would be served by sending this matter for trial.
15. In view of the above, the application is allowed in terms of prayer clauses-i and i-a, which read as follows.
"i). quash and set aside the FIR No.0351/2020, Dt. 08/12/2020 registered with Non-applicant No.1 Police Station, Nandgaon Khandeshwar, Tq. Nandgaon Khandeshwar, Dist. Amravati, for the offence punishable U/s. 353, 332, 504, 506, 188, 270 R/w 34 of Indian Penal Code and Section 2, 3 and 4 of the Epidemic Disease Act, 1897 (ANNEXURE- "A");
i-a) quash and set aside the Session Case No.24/2022 pending on the file of learned District and Sessions Judge - 2 Amravati which is arising out of Crime No.351/2020 registered with Police Station Nandgaon Khandeshwar, Tq. Nandgaon Khandeshwar, District Amravati for the offences punishable under section 353, 332, 504, 506, 188, 270, R/w 34 of the Indian Penal Code and Sections 2, 3 and 4 of the Epidemic Diseases Act, 1897 (ANNEXURE - "D")."
16. Accordingly, the application is disposed of.
(VALMIKI SA MENEZES, J) (MANISH PITALE, J)
Signed By:GHANSHYAM S
KHUNTE
Signing Date:12.08.2022 10:39
KHUNTE