Gujarat High Court
Kanjibhai vs State on 16 March, 2010
Gujarat High Court Case Information System
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CR.MA/348/1995 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 348 of 1995
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
KANJIBHAI
BABLDAS PATEL & 12 & 15 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
BS PATEL for
Applicant(s) : 1 - 16.MRS RANJAN B PATEL for Applicant(s) : 1 - 16.MR
JA SHUKLA for Applicant(s) : 1 - 16.
MR UA TRIVEDI, ADDL. PUBLIC
PROSECUTOR for Respondent(s) : 1,
NOTICE SERVED for Respondent(s)
: 2,
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CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 16/03/2010
ORAL
JUDGMENT
The facts of the case stated briefly are that the Additional Magistrate, Mehsana, in exercise of powers under section 37(3) of the Bombay Police Act, 1951 issued a notification dated 12th January, 1995 prohibiting assembling and taking out processions in the rural as well as urban areas of Mehsana District for the period commencing from 16th January, 1995 to 30th January, 1995 (both days inclusive). It appears that petitioner No.2 had been selected as a candidate for the Assembly Election from Visnagar Constituency by the Congress Party, hence the Visnagar Taluka Congress Samiti called a meeting at Visnagar Taluka Majoor Sahakari Mandali's Assembly Hall, Darbar Road at Visnagar. Pamphlets in this regard came to be issued by the Congress Samiti. In the context of the meeting held by the petitioners herein, the respondent No.2 lodged a first information report against the petitioners alleging commission of the offence punishable under section 188 of the Indian Penal Code before the, Visnagar Police Station, which came to be registered as Visnagar Police Station II C.R.No. 55 of 1995. Subsequently, upon conclusion of investigation, charge-sheet came to be submitted in the Court of the learned Judicial Magistrate First Class, Visnagar against the petitioners herein under the provisions of sections 188, 177(H) and 114 IPC and section 135(3) of the Bombay Police Act.
By this application under Section 482 of the Code of Criminal Procedure, 1973 (the Code), the petitioners have prayed to quash the above referred first information report and all proceedings pursuant thereto.
Heard Mr. Chirag B. Patel, learned advocate for the petitioners and Mr. U. A. Trivedi, Additional Public Prosecutor for the respondents. Despite service of notice there is no appearance on behalf of the respondent No.2.
The learned advocate for the petitioner has invited the attention of the Court to the provisions of section 195 of the Code of Criminal Procedure to submit that it is not permissible for a court to take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It is submitted that in the present case, the notification under section 37(3) of the Act has been published by the Additional District Magistrate, Mehsana and as such the complaint could have been lodged only by the Additional District Magistrate concerned or some other public servant to whom he is administratively subordinate. It is submitted that in the facts of the present case it is apparent that the respondent No.2 first informant does not fall within the criteria laid down under the said provisions. It is further submitted that the provision envisages that there should be a complaint in writing, whereas in the present case the police have registered a first information report in connection with the offence in question. Attention is invited to the provisions of section 2(d) of the Code, which defines complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but does not include a police report, to submit that the definition of complaint under the Code, specifically excludes police report and as such, no cognizance could have been taken in connection with the offence in question on the basis of a first information report and charge-sheet filed pursuant thereto. It is submitted that in the circumstances, the first information report in question as well as all proceedings emanating therefrom are required to be quashed as being contrary to the provisions of section 195 of the Code.
5. The learned advocate for the petitioners has also stated before this Court that the petitioner No.1 has expired and as such the petition abates qua him. However, in absence of any death certificate being brought on record, it is not possible for this Court to pass any order for abatement of the petition.
6. From the facts emerging on record, it is apparent that the notification under section 37(3) of the Bombay Police Act has been issued by the Additional District Magistrate, Mehsana prohibiting assembly or procession of more than four persons. The petitioners had held a meeting on 18th January, 1995 within the period stipulated in the said notification. The offence alleged against the petitioners in the first information report in question is under section 188 of the Indian Penal Code. A perusal of the provisions of section 195 of the Code, indicates that there is an express bar against taking cognizance of any offence punishable under section 188 except on a complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. In the facts of the present case, it is an admitted position that the respondent No.2 is not the public servant concerned in as much as the Notification in question has been issued by the Additional District Magistrate, Mehsana. It is also an admitted position that no complaint in writing as envisaged under section 2(d) of the Code has been made and that the respondent No.2 had lodged the above referred first information report in connection with the offence punishable under section 188 of the IPC. On a plain reading of the provisions of section 2(d) of the Code it is abundantly clear that a first information report is specifically excluded from the ambit of complaint as defined under the Code.
7. In the circumstances, in view of the provisions of sub-section (1) of section 195, which expressly bars taking of cognizance of an offence under section 188 except as provided thereunder, read with section 2(d) of the Code, it was not permissible for the learned Judicial Magistrate First Class, Visnagar to take cognizance of the offence in question on the basis of a charge-sheet filed pursuant to the first information report lodged by the respondent No.2. In the light of the provisions of section 195 (1)(a), the Court could not have taken cognizance of the offence under section 118 IPC except on a complaint in writing by the public servant concerned viz. the Additional District Magistrate or some other public servant to whom he is administratively subordinate. In the circumstances the learned Judicial Magistrate First Class, Visnagar was not justified in taking cognizance of the offence under section 188 on the basis of a charge-sheet submitted upon conclusion of investigation made pursuant to the first information report lodged by the respondent No.2. This is, therefore, a fit case for exercise of powers under section 482 of the Code to prevent the abuse of the process of Court.
8. For the foregoing reasons, the application succeeds and is accordingly allowed. The first information report registered vide Visnagar Police Station II C.R.No. 55 of 1995 as well as all proceedings emanating therefrom are hereby quashed. Rule is made absolute.
[HARSHA DEVANI, J.] jani/parmar* Top