Gujarat High Court
Pushpaben Maheshbhai Makwana vs State Of Gujarat on 20 March, 2024
NEUTRAL CITATION
R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16507 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PUSHPABEN MAHESHBHAI MAKWANA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AJ YAGNIK(1372) for the Applicant(s) No. 1,2,3
MR YASH N NANAVATY(5626) for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 20/03/2024
ORAL JUDGMENT
1. By way of filing this application under Section 482 of the Criminal Procedure Code, the petitioners sought quash of the FIR being C.R.No.II-63/2018 registered with Kodinar Police Page 1 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined Station of Gir Somnath District for the offences punishable under Sections 186, 323, 504, 506 (2) and 114 of the Indian Penal Code and under Section 135 of the Gujarat Police Act.
2. Heard learned counsel for the petitioners, Mr.Hardik Soni, learned APP for the respndent-State and learned counsel for the second respondent-defacto complainant.
3. As per the prosecution version, on 6.6.2018, between 10.30 to 11 a.m., when the work of renovation of Kodinar- Panadar road is going on, the complainant, who is working as a Supervisor of Kodinar Nagar Palika along with other employees of Nagar Palika and the contractor-Mansingbhai Rathod, was supervising the said work. When the complainant is supervising said work, it is stated that the petitioners approached the complainant and others and entered into altercation with them with regard to renovation of the said road and they abused the complainant in vulgar language and when the complainant asked them to behave properly, that the petitioners no.1 and 2 attacked him and other employees with sticks and, at that time, residents of the village interfered and pacified the situation. It is stated that the petitioners have left the place threatening the complainant that they will kill him if he again come to the said road to carry on renovation work and that they would implicate him in a false case.
4. The complainant lodged report with the police narrating the above facts and the said report was registered as an FIR for the aforesaid offences.
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5. The petitioners have challenged the legal validity of the said FIR on several grounds. Firstly, it is stated that there is a bar under Section 195 of Criminal Procedure Code to take cognizance of offence punishable under Section 186 of IPC and it is only on a complaint made by the public servant before the concerned Court that the Court can take cognizance of an offence under Section 186 of IPC and as no such complaint is filed by the complainant before the concerned Court, as required under Section 195 of CrPC, the FIR that was registered for the said offence is not valid under the law. Therefore, it is the case of the petitioners that said FIR is liable to be quashed for the said offence under Section 186 of IPC. It is also the contention of the petitioners that when the FIR is liable to be quashed for the offence punishable under Section 186 of IPC that the other offences punishable under Sections 323, 504, 506 (2) of IPC and under Section 135 of the Gujarat Police Act cannot be segregated, as those offences are also, according to the prosecution version, committed in the same transaction, arising out of the same incident. So, it is the case of the petitioners that the entire FIR is to be quashed in view of the bar contained in Section 195 of CrPC.
6. Apart from the said ground, it is contended that the husband of the first petitioner has been agitating against the corrupt activities being carried on by the complainant and other employees in relation to said renovation work of the road and that he complained against them to the higher authorities that they are indulging in corrupt activities while constructing said road and, as such, the complainant bore grudge against the petitioners and lodged this false report against them. So it Page 3 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined is the case of the petitioners that it is a case which is initiated with malicious intention. It is also their case that, in fact, the petitioners lodged report against the complainant with police relating to an offence committed by him and thereafter this report was lodged as a counter-blast to the said report. Therefore, on these grounds also, the petitioners sought quash of the FIR.
7. As can be seen from the FIR, it was registered for the offence punishable under Section 186 of IPC along with other offences punishable under Sections 323, 504, 506 (2) of IPC and 135 of the Gujarat Police Act. Section 186 of IPC deals with an offence of obstructing a public servant in discharge of his public functions. Whoever voluntarily obstructs any public servant in the discharge of his public functions is liable for punishment with imprisonment for a term which may extend to three months or with fine, which may extend to Rs.500/- or with both under Section 186 of IPC. This offence only pertains to obstructing a public servant in discharge of his public functions alone.
8. Section 195 of CrPC imposes an express bar to take cognizance of any such offences punishable under Sections 172 to 188 of IPC on the Court, stating that except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate that no Court shall take cognizance of any such offence. Therefore, the said bar imposed under Section 195 to take cognizance of the offences except on a complaint in writing made by the public servant clearly applies to the offence under Section 186 of IPC.
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9. The term "complaint" is defined under Section 2 (d) of CrPC. As per the said definition, "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report.
10. So a combined reading of Section 195 CrPC and Section 2
(d) of CrPC makes it manifest that the second respondent, who is the complainant, who is a public servant has to file a complaint in writing before a Magistrate in relation to said offence punishable under Section 186 of IPC and then the Magistrate is empowered to take cognizance of such offence punishable under Section 186 of IPC. The police cannot register any FIR in respect of said offence under Section 186 of IPC in view of the bar engrafted in Section 195 of CrPC. Therefore, registration of impugned FIR for the offence punishable under Section 186 of IPC is legally unsustainable and it is liable to be quashed, insofar as said offence is concerned.
11. Now, the main contention of the petitioner is that when the FIR is liable to be quashed for the offence punishable under Section 186 of IPC that other offences, to which said bar under Section 195 of CrPC is not applicable, cannot be segregated when the said offences are also committed in the same incident and that the entire FIR is liable to be quashed even for the other offences punishable under Sections 323, 504, 506 (2) of IPC and 135 of the Gujarat Police Act. This is the main controversy in this petition.
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12. Learned counsel for the petitioners vehemently contended that even though the bar under Section 195 of CrPC is not applicable to the offences punishable under Sections 323, 504, 506 (2) of IPC and 135 of the Gujarat Police Act for which the impugned FIR was also registered, when the FIR is quashed for the offence under Section 186 of IPC in view of the bar contained in Section 195 of CrPC, that other offences cannot be segregated as they are also committed during the course of the same incident and the entire FIR is to be quashed. In support of his contention, he mainly relied upon the judgment of the Apex Court rendered in the case of Basir- ul-Huq v. State of West Bengal, AIR 1953 SC 293 and also in the judgment rendered in the case of Bandekar Brothers Private Limited and Another v. Prasad Vassudev Keni and Other, (2020) 20 SCC 1.
13. In oppugnation, learned APP for the respondent-State would contend that when bar under Section 195 of CrPC is applicable only to the offence under Section 186 of IPC, the FIR is liable to be quashed only for the said offence and the entire FIR cannot be quashed in relation to other offences to which bar under Section 195 of CrPC has no application. He submits that the FIR cannot be quashed for other offences.
14. Learned counsel for the second respondent would also contend that the FIR can be quashed only for the offence punishable under Section 186 of IPC in view of the bar contained under Section 195 of CrPC and the same cannot be quashed in respect of other offences. It is vehemently contended by him that when the offence under Section 186 of Page 6 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined IPC and other offences punishable under Sections 323, 504, 506 (2) of IPC and 135 of the Gujarat Police Act are distinct and separate, that FIR in relation to said distinct offences cannot be quashed and the prosecution shall be allowed to go on in respect of said offences. In support of his contention, he relied upon judgment of the Apex Court rendered in the case of Pankaj Aggarwal v. State of Delhi, 2001 (5) Supreme 359 and on the judgment of this Court rendered in the case of Kandhal Sarman Jadeja v. State of Gujarat, 2019 (0) AIJEL-HC 240222. He contends that the judgment relied on by the petitioners in the case of Basir-ul-huq (supra) was also considered and discussed by this High Court in the above case and this Court clearly held that when other offences are separate and distinct offences, FIR cannot be quashed for the said offences and segregation is permissible.
15. Therefore, from the aforesaid submissions made by both the learned counsel for the petitioners and the learned counsel for the respondents, the seminal question that falls for determination in this case is when the FIR was registered both for the offence punishable under Section 186 of IPC, to which the bar under Section 195 of CrPC is applicable and also for other IPC offences to which the bar under Section 195 of CrPC has no application, when the said offences are separate and distinct, whether they can be segregated or not and whether entire FIR is liable to be quashed or not.
16. As noticed supra, the basis for the said contention that is now raised by the learned counsel for the petitioners that entire FIR is liable to be quashed when bar under Section 195 Page 7 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined of CrPC applies to one of the offences for which the FIR was registered is the judgment of the Apex Court in the case of Basir-ul-huq (supra). It was a judgment rendered as early as in 1953 by the Apex Court. In paragraph no.14 of the judgment, the Apex Court held as follows:-
"14. Though, in our judgment, section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by mis- describing it or by putting a wrong label on it."
17. So, from a careful reading of the aforesaid relevant paragraph in the judgment, it is apparent that the Apex Court clearly and unequivocally held that Section 195 CrPC does not bar the trial of an accused person for distinct offences disclosed by the same facts, which are not included within the ambit of Section 195 of CrPC. All that is stated is, that the provision of that Section cannot be evaded by resorting to devices or camouflages and that the test whether there is evasion by the section or not is to see whether the facts Page 8 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined disclosed primarily and essentially an offence for which a complaint of the court or by the public servant is required. It is held that in other words, the provisions of Section cannot be evaded by the device of charging a person with an offence to which Section 195 CrPC does not apply and then convicting him of an offence to which Section 195 CrPC applies on the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other Section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in Section 195 of CrPC. It is held that mere changing the garb or label of an offence, which is essentially an offence covered by the provisions of Section 195 prosecution for such an offence cannot be taken cognizance of by mis- describing it or by putting a wrong label on it.
18. Therefore, it is clear from said judgment of the Apex Court also that when a distinct and separate offence is disclosed by the same facts to which the bar under Section 195 of CrPC is not applicable then said bar cannot be applied to the said offences to which Section 195 is not attracted. It is only stated that the Court has to be vigilant in seeing that said provision is not evaded by resorting to any device or camouflage. So in the fact situation obtained in the said case, it is held that bar cannot be evaded by resorting to device or camouflage. A careful reading of the said judgment makes it manifest that when a distinct and separate offence is made out from same facts and when there is no attempt made to evade the bar under Section 195 of CrPC by resorting to devices or camouflage that the prosecution for other offences on the Page 9 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined basis of said FIR is maintainable. In fact, at para no.15 of the said judgment itself, while referring to the judgment of the Federal Court, the Court in the said judgment observed as follows:-
"15. Before concluding, reference may also be made to the decision of the Federal Court in Hori Ram Singh v. The Crown(1). The appellant in that case was charged with offences under sections 409 and 477-A, Indian Penal Code. The offence under section 477-A could not be taken cognizance of without the previous consent of the Governor under section 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own certain medicines entrusted to him in his official capacity as a sub-assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he willfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under section 477-A were quashed by the Federal Court for want of the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under section 409, Indian Penal Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section 409 and the other an offence under section 477-A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under section 409."
19. As per the facts of the case in the above referred case, two distinct offences were committed in the same transaction. One offence is of misappropriation under Section 409 and other offence under Section 477-A of IPC, which required sanction of the Governor. The circumstance that cognizance Page 10 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined could not be taken for the latter offence without such consent was not considered as a bar to the trial of the accused for the offence under Section 409 of IPC in the said judgment.
20. Further, the said judgment in Basir-ul-huq (supra) of the Apex Court was also considered by this Court in the above judgment in the case of Kandhal Sarman Jadeja case and at paragraph no.17 of the judgment this Court held as follows:-
"17. In the present case the FIR has been registered for the offences punishable under sections 143, 147, 149, 186, 332, 160, 294B, 427 and 504 of the IPC. Thus, the offence under section 186 of the IPC(obstructing public servant in discharge of public functions) would attract the mischief of section 195(1)(a). But the offence of section 332 of the IPC, which postulates voluntary causing hurt to deter public servant from his duty is maintained as it does not attract the mischief of section 195 of the Cr.P.C. since the same involves an offence of personal element falling under Ch.XVI regarding offence affecting the human body. The rest of the offences, indubitably, have distinct characteristics and ingredients and the same are also different for which no complaint is necessary. Prima facie the contents of the FIR reveal that there was scuffle in the police station, hence at this stage this Court cannot examine whether the ingredients of section 332 of the IPC are satisfied or not. The FIR is also registered for the offence under Sections 3 (1) & 3 (2) of the Prevention of Damage to Public Property Act, 1984. Thus, the bar imposed vide section 195 of the Cr.P.C. for the offence under section 186 of the IPC cannot be fatal for the entire case of the prosecution. Hence, the investigation shall proceed further with regard to other offences except the offence under section 186 of the IPC and for Sections 3 (1) & 3 (2) of the Prevention of Damage to Public Property Act, 1984."
21. Therefore, after considering the said judgment of Basir- ul-huq and other judgments, this Court clearly opined and concluded that when a separate and distinct offence is also made out from the same facts, then despite the bar under Page 11 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined Section 195 of CrPC applicable to one of the offences, that it cannot be fatal for the entire case of the prosecution and the FIR for further offences to which bar under Section 195 of CrPC is not applicable can be sustained.
22. The Apex Court in the case of Pankaj Aggrawal (supra) held as follows:-
"3. Mr. Jain appearing for the accused appellant contended that in view of S.195 of the Code of Criminal Procedure, the Magistrate could not have taken cognizance of the offence under S.186 IPC as it is barred under S.195(1)(a)(i). He further contended that even the cognizance under S.332/34 IPC also would be barred as the offence under S.332 IPC is a cognate offence, and therefore the entire proceeding is bad. Mr. Jain also further contended that the allegations made and the materials available on record do not make out any offence for which the accused has been charged. It is contended on behalf of the respondents that though cognizance could not have been taken under S.186 IPC in view of the provisions contained in S.195(1)(a)(i), but there is no infirmity with the order taking cognizance under S.332 IPC inasmuch as the ingredients of offence under S.332 and 186 IPC are distinct and the Magistrate did not commit any error in taking cognizance of the offence under S.332/34 IPC Mr. Jain in course of his arguments relied upon three decisions of different High Courts 1996 Current Criminal Reports 257 of Delhi High Court, 1991 (1) Recent Criminal Report 192 of Punjab High Court as well as 1975 CCR 575 of the Patna High Court. In the Punjab High Court judgment, the provisions of S.186 and 332 IPC have been analysed and the judgment Page 12 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined undoubtedly supports the contentions of Mr. Jain. But in view of the judgment of this court in AIR 1966 SC 1775 were the court has analysed the provisions of S.353, IPC and 186 IPC and held that the two are distinct offences and the quality of the offence is also different, we are of the opinion that judgment of the Punjab High Court is not correct in law and has taken a view contrary to the law laid down by this Court. What has been stated earlier in the aforesaid case in relation to the provisions of S.353 IPC, would equally apply to the provisions of S.332 of the IPC. This being the position, we are unable to accept the contention of Mr. Jain that the provisions of S.195(1)(a)(i) bars taking cognizance of S.332/34 IPC. We, however agree with Mr. Jain that the order taking cognizance of S.186 of the IPC is bad in law and attracts the mischief of Section 195. In the aforesaid premises, we quash the criminal proceedings so far as the charge under Section 186 Indian Penal Code is concerned and direct that the criminal proceedings would continue so far as the charge under Section 332/34 Indian Penal Code is concerned."
23. In arriving at said conclusion, the Apex Court relied on the earlier judgment of the Supreme Court reported in AIR 1966 SC 1775, wherein the Supreme Court has analyzed the provisions of Section 353 of IPC and held that these two are distinct offences and the quality of the offence is also different.
24. In the instant case also, offence punishable under Section 186 of IPC and other offences punishable under Sections 323, 504, 506 (2) of IPC and Section 135 of the Gujarat Police Act are all distinct and separate offences with different ingredients Page 13 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined and characteristics when compared with the offence under Section 186 of IPC. As noticed supra, Section 186 of IPC deals with only a simple offence of voluntarily obstructing a public servant in discharge of his public function. For better appreciation, Section 186 is extracted herein below, which reads as under:-
"186. Obstructing public servant in discharge of public functions.-
Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
25. So, it is a simple offence of voluntarily obstructing any public servant in discharge of his public function. But the other offences under Section 323 and 506(2) IPC relate to causing hurt to a person and criminal intimidation etc respectively. So, undoubtedly those offences are distinct and separate offences, though arising out of the same incident. Obstructing a public servant from discharging his public function is one offence and causing hurt to a person be it a public servant or any other person is another offence and threatening him with dire consequences and resorting to offence of criminal intimidation is another separate offence. The bar under Section 195 has no application to these offences. So, the entire FIR cannot be quashed on the sole ground that the bar under Section 195 of CrPC applies to the offence under Section 186 of IPC. As discussed supra, the said legal position is made clear from the judgment of the Apex Court in the case of Pankaj Aggrawal Page 14 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024 NEUTRAL CITATION R/CR.MA/16507/2018 JUDGMENT DATED: 20/03/2024 undefined and the judgment of this High Court in Kandhal Sarman Jadeja case. In fact, in the said decision, thus Court has elaborately discussed the law on the point and ultimately held that investigation can be allowed to go on in respect of other offences to which bar under Section 195 has no application.
26. In fine, the petition is partly allowed quashing the FIR being C.R.No.II-63/2018 registered with Kodinar Police Station of Gir Somnath District only for the offence punishable under Section 186 of IPC, so far as present petitioners are concerned. The FIR in respect of other offences, it holds good and the investigation shall go on and the law has to take its own course in respect of the said offences.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J) R.S. MALEK Page 15 of 15 Downloaded on : Fri Mar 22 21:32:28 IST 2024