Gujarat High Court
Fenny Sanjaybhai Patel Through Her ... vs State Of Gujarat on 18 October, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
R/CR.MA/16169/2020 ORDER DATED: 18/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 16169 of 2020
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FENNY SANJAYBHAI PATEL THROUGH HER NATURAL
GUARDIAN AND MOTHER BHAVNABEN SANJAYABHAI PATEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRABHAKAR UPADYAY(1060) for the Applicant(s) No. 1
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/10/2022
ORAL ORDER
1. By way of the present application, the applicant herein has prayed for the following reliefs:
"(A) YOUR LORDSHIPS may kindly be pleased to allow the present application;
(B) YOUR LORDSHIPS may kindly be pleased to quash and set aside the First Information Report vide I-C.R. No. 11191020200389 dated 12.04.2020 registered before the Vastrapur Police Station, Ahmedabad City for the offences punishable under Section 188 of Indian Penal Code, Section 3 of the Epidemic Diseases Act, 1897 and under Section 135 of the Gujarat Police Act, 1951 at Annexure-A to this application.
(C) During the pendency of the present petition, YOUR Page 1 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 LORDSHIPS may kindly be pleased to stay the further investigation in connection with the I.C.R. No. 11191020200389 dated 12.04.2020 registered before the Vastrapur Police Station, Ahmedabad City, for the offences punishable under Section 188 of Indian Penal Code, Section 3 of the Epidemic Diseases Act, 1897 and under Section 135 of the Gujarat Police Act, 1951.
(D) Your Lordships be pleased to grant such other and further relief's as deemed fit in the interest of justice."
2. It is the case of the applicant that, original complainant has lodged the complaint before Vastrapur Police Station, Ahmedabad City, under Section 188 of the Indian Penal Code, under Section 3 of the Epidemic Diseases Act, 1897 & under Section 135 of the Gujarat Police Act, 1951, wherein, it has been alleged that, when the police were monitoring the movement of the public through drone camera on 12.04.2020 at about 7:30 p.m., the present applicant and other co-accused were found at the terrace. It has been further alleged by the complainant in the F.I.R. that the applicant has breached the terms and conditions of the Notification issued by the State Government and therefore, the impugned complaint came to be lodged on 12.04.2020.
3. Mr. Prabhakar Upadhyay, learned counsel appearing for the applicant submitted that the respondent no.2 - original complainant has no authority to lodge the F.I.R. against the present applicant for the alleged offence under Section 188 of the Indian Penal Code. That the Police Officer having not filed the Page 2 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 complaint before the competent Court of law, having jurisdiction to try the alleged offence as defined under Section 2(d) of the Code of Criminal Procedure, 1973.
4. In view of above, Mr. Prabhakar Upadhyay, learned counsel submitted that the F.I.R. filed by the original complainant against the present applicant is not maintainable in the eye of law. It is further submitted that only competent officer can file the complaint and no Court is empowered to take cognizance of any offence punishable under Section 172 to 188 of the Indian Penal Code.
5. Ms. Maithili D. Mehta, learned APP appearing for the respondent-State was not in a position to dispute the legal position and submitted that appropriate orders be passed in the interest of justice.
6. Heard the learned counsels appearing for the respective parties.
7. POSITION OF LAW:
7.1. In the case of C.Muniappan v/s. State of Tamil Nadu reported in 2010 (9) SCC 567, wherein, it is held that the provisions of Section 195 of the Code of Criminal Procedure, 1973, are mandatory and non-compliance thereof would vitiate Page 3 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 the prosecution and all other consequential orders.
7.2. In the case of Govardhankumar Thakoredas Asrani v/s. State of Gujarat reported in 2018 (1) GLH 63, wherein, it has been held as under:
"46. In some of the applications before me, the only offence is either section 186 or 188 of the IPC. In such type of cases, there should not be any difficulty in quashing the prosecution in view of the bar of section 195 of the Cr.P.C. However, there are few cases on hand, in which, over and above sections 186 or 188 of the I.P.C, the other offences are also there which are not covered under section 195 of the Cr.P.C. It is only in such cases, the court has to be careful. I have noticed that in some of the cases, there is a charge of section 353 of the IPC along with section 186 of the IPC. I am of the view that the very act of obstruction lies in the alleged assault and use of criminal force. In truth and substance, such an offence would fall in the category of sections mentioned in section 195 of the Code and it is not open to byepass its provisions even by choosing to prosecute under section 353 of the IPC only. There is no scope, in any of the matters on hand, having regard to the materials on record, to split up the offences so as to avoid the bar of section 195 of the Cr.P.C as all the offences can be said to have been committed in the course of one transaction. All the offences can be said to have been an integral part of one transaction."
7.3. This Court in Special Criminal Application (Quashing) No.2908 of 2015, relevant paragraph Nos.4 to 8, reads thus:-
"4. On conclusion of the investigation the charge-sheet was filed and the Court took cognizance upon the said Page 4 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 chargesheet.
5. The entire prosecution against the accused persons should fail on the short ground that no cognizance could have been taken by the Trial Court for the offence punishable under Sections 186 and 188 of the Indian Penal Code upon a police report in view of the specific bar under Section 195 of the Criminal Procedure Code.
6. The point raised in this writapplication is squarely covered by the decision of the Supreme. Court in the case of State of U.P. v. Sureshchandra Srivastava, AIR 1984 SC 1108.
7. The said judgment of the Supreme Court was considered by a learned Single Judge of this Court in the case of Ramji Bhika Koli v. State of Gujarat, 1999 (1) GLH 203. I may quote the observations made by the learned Single Judge as under :-
"8. It is undisputed that allegations made in the complaint against present petitioners include allegations in respect to offence made punishable under section 186 of IPC. It is true that petitioners are also charged with other offences like offences made punishable under sections 143, 147, 148, 149, 332, 333 and 307 of IPC, which are not covered under section 195. However, it is well accepted proposition of law 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 other offences form an integral part of the same so as to amount to offences committed as a part of the same transaction. That in such case the other offences would also fall within the ambit of sec.195 of the Code. That in the instant case if the complaint recorded as FIR is read as a whole the petitioners have formed unlawful assembly with an object to resist a prohibition raid carried out by PSI O.M. Raval and his squad by using force with deadly weapons and causing rioting and even making an attempt on life of PSI Page 5 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 O.M. Raval, in prosecution of the common object to prevent the raiding party to enter into the house of petitioner no.1 and to carry out the raid in due discharge of their duty. That thereby entire prosecution of voluntary causing obstruction to the public servant by forming unlawful assembly with an object to resist the same and using deadly weapon to cause riot and even to make an attempt on life of the PSI who led the raiding party is a single transaction and integral part of the offence constituting and made punishable under section 186 of IPC. In other words, the offences charged against the petitioners under secs.143, 147, 148, 149, 332, 333 and 307 of IPC, cannot be splited from the complaint for a separate offence in the facts and circumstances of the present case, and thereby cognizance in respect to said offences are also barred under sec.195(1)(a)(i) of the Code, as held by Supreme Court in the case reported vide A.I.R. 1984 S.C.-108.
9. It may be noted that learned Addl. Sessions Judge while passing the impugned order has relied on observations made by High Court of Kerala in the matter of M. Chacko Vs. State of Kerala reported vide 1985 Cri.L.J. 120. That learned Addl. Sessions Judge appears to have missed the relevant portion as stated by High Court of Kerala in the said matter vide para.9 as observed hereinunder:
"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 S.195 of the Code, without written complaint of the public authority or the court, as the case may be. At the same time, if the facts give rise to distinct offences, some attracting the operation of s.195 and others not so, the bar can operate only regarding the former and not regarding the latter."
8. In view of the above this application is allowed. The further proceedings of the Criminal Case No. 308 of 2015, Page 6 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022 R/CR.MA/16169/2020 ORDER DATED: 18/10/2022 pending in the Court of the learned JMFC, Mangrol are hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated. Rule is made absolute. Direct service is permitted."
8. Section-3 of the Epidemic Diseases Act, 1897 reads thus:
"3.Penalty. Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code (45 of 1860 )."
9. Considering the aforesaid position of law and Section 3 of the Epidemic Diseases Act, 1897 as well as the submissions canvased by Mr. Upadhyay, learned counsel appearing for the applicant, the present Application is allowed, in view of the fact that, no cognizance could have been taken by the respondent authority for the offence punishable under Section 188 of the Indian Penal Code, in view of the specific bar under Section 195 of the Criminal Procedure Code. Similarly, no cognizance could have been taken by the respondent authority under Section 3 of the Epidemic Diseases Act, 1897 as referred above, any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under Section 188 of the Indian Penal Code and the same could not be treated as a complaint for the purpose of Section 195 of the Criminal Procedure Code.
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10. In view of above, the application stands allowed. The impugned F.I.R. being I-C.R. No. 11191020200389 dated 12.04.2020 registered before Vastrapur Police Station, Ahmedabad City stands quashed qua the present applicant. If charge-sheet or Criminal Case is filed pursuant to the impugned F.I.R., the same also stands terminated qua the present applicant.
Rule is made absolute. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 8 of 8 Downloaded on : Sun Dec 25 04:21:15 IST 2022