Gujarat High Court
Imtihaj Abdulsatar Molavi vs State Of Gujarat on 7 December, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/8192/2016 ORDER DATED: 07/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8192 of 2016
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IMTIHAJ ABDULSATAR MOLAVI & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1,2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/12/2022
ORAL ORDER
1. By way of this Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants have prayed for quashing and setting aside F.I.R. bearing C.R. No. I- 56 of 2016 registered with Gotri Police Station, Vadodara for the offences punishable under Sections 175, 179, 186, 188, 189 and 204 of the Indian Penal Code and to quash all other consequential proceedings arising out of the aforesaid F.I.R. qua the applicants herein.
2. Heard Mr. Y.J. Patel, the learned advocate appearing for the applicants and Ms. Maithili Mehta, the learned APP appearing for the respondent - State.
3. Mr. Y.J. Patel, the learned advocate appearing for the applicants herein submitted that without going into the merits of the matter, the respondent No.2 could not have lodged the Page 1 of 4 Downloaded on : Sat Dec 24 02:11:19 IST 2022 R/CR.MA/8192/2016 ORDER DATED: 07/12/2022 FIR-in-question being C.R. No. I- 56 of 2016 in view of the fact that there is bar putting cognizance of any offence punishable under Sections 172 to 188 of the Code. Mr. Patel, further submitted that clearly in the facts of the present case, bar of Section 195 of the Code of Criminal Procedure came into play. Mr. Patel, the learned advocate has placed reliance on the decision rendered in the case of Govardhankumar Thakoredas Asrani vs. State of Gujarat, 2017 (0) AIJEL-HC 237413 and the decision rendered in the case of Suresh Ramanbhai Patel vs. State of Gujarat, 2021(0) AIJEL-HC 243380 .
4. Ms. Maithili Mehta, the learned APP was not in a position to call for papers.
5. In view of the aforesaid legal position as submitted by Mr. Patel, the learned advocate appearing for the applicants, it would be appropriate to refer to Section 195 of the Code, which reads thus:
"195. Prosecution for contempt of lawful authority of public servants, 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 (45 of 1860 ), 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 (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been Page 2 of 4 Downloaded on : Sat Dec 24 02:11:19 IST 2022 R/CR.MA/8192/2016 ORDER DATED: 07/12/2022 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 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 of some other Court to which that Court is subordinate."
6. Section 204 of the Indian Penal Code is a non cognizable offence and for the said reason the FIR is not maintainable. Section 155 of the CRPC provides that the Police Officer is not competent to receive and record the FIR pertaining to non cognizable offences unless permission from the Magistrate is obtained. Since the complaint in question is not maintainable qua the aforesaid sections invoked against the applicants herein, the same would not be maintainable qua Section 189 more particularly, it being non cognizable offence. Section 204 is also for non cognizable offence and therefore, without going into the merits of the matter and in view of the fact that there is bar under Section 195 of the Code, this Court is of the view that the complaint which is registered as FIR alleging offence under Sections 175, 179, 186, 188, 189 and 204 would not be maintainable and therefore, the said is liable to be quashed and set aside.
7. Resultantly, this application is allowed and the impugned F.I.R. bearing C.R. No. I- 56 of 2016 registered with Gotri Police Station, Vadodara, filed against present applicants is hereby quashed and set aside and all other proceedings arising out of Page 3 of 4 Downloaded on : Sat Dec 24 02:11:19 IST 2022 R/CR.MA/8192/2016 ORDER DATED: 07/12/2022 the aforesaid F.I.R. including charge-sheet and Criminal Case, if filed, are also quashed and set aside qua the present applicants. It is clarified that the Court has not gone into merits of the matter. It is open for the respondent No.2 to take appropriate steps as permissible under the law.
8. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) NEHA Page 4 of 4 Downloaded on : Sat Dec 24 02:11:19 IST 2022