Gujarat High Court
Virendra Ratanlal Purohit vs State Of Gujarat on 6 March, 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
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Reserved On : 03/02/2025
Pronounced On : 06/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 10499 of 2021
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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Approved for Reporting Yes No
- √
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VIRENDRA RATANLAL PUROHIT & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.ALOK M THAKKAR for the Applicant(s) No. 1,2,3,4,5
NOTICE SERVED for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned APP Mr. Soaham Joshi waives service of notice of rule for respondent no.1 - State of Gujarat.
2. By way of the present application under Section 482 of the Code of Criminal Procedure, 1973 (for short, the 'Code'), the applicants pray for quashing and setting aside the FIR being C.R. No.11993003210676/2021 registered with Anjar Police Station, Kutchh for the offence punishable under Sections 269 and 188 of the of the Indian Penal Code ("IPC" for short"), under Section 13(i) Page 1 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined of the Gujarat Epidemic Disease Covid-2019 Regulations, 2020 and under Sections 51(a) and 56 of the Disaster Management Act, 2005 qua the applicants.
3. The allegations leveled in the impugned FIR in nutshell are as under, On the birthday of the accused no.1, the accused no.6 had booked Villa No.72 of the Fun Royal Farm Resort (Rivera Farm) and arranged birthday party, wherein other accused were invited and all the accused, who are police officials, have gathered without wearing mask and thereby they have violated the provisions of the law though being responsible officer of the police department and thereby they have committed alleged offences.
4. Heard learned advocate, Mr. Alok Thakkar for the applicants and learned APP Mr. Soaham Joshi for respondent no.1 - State of Gujarat. Though served, none appears for the respondent no.2.
5. Learned advocate, Mr. Thakkar appearing for the applicants submitted that the impugned FIR lodged against the applicants is nothing but an abuse and misuse of process of law, therefore, the prosecution launched against the applicants is required to be quashed and set aside. He submitted that it is settled proposition of law that if any prosecution is launched against the accused persons against the statutory provision of law and/or if any specific bar is imposed through Page 2 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined specific provision of law and despite the said fact, the prosecution is launched against the accused persons, in that event, it would amount to abuse of process of law and the said actions are required to be quashed by exercising inherent power under Section 482 of the CrPC is required to be exercised to secure the ends of justice. He submitted that herein in this case, as per the case of the prosecution, the so-called incident had occurred during the period between 15.05.2021 to 15.05.2021 and FIR has been lodged on 28.05.2021 for the alleged offences against total six accused persons, who are police officers. He submitted that in fact, specific charge is leveled against them that they have assembled at a particular place to celebrate the birthday of one of the accused, however while doing so, they have not followed the guidelines issued by the State Government in stricto sensu manner and for violation of the said guideline, the impugned FIR has been lodged.
6. Learned advocate has referred to the Notification dated 13.03.2020 issued by the Government of Gujarat, Health & family Welfare Department, Sachivalay, Gandhinagar produced on record at Page No.17 of the compilation and submitted that at the time of pandemic, certain guidelines were issued. He referred to the Notification dated 11.05.2021 issued by the Additional Director General of Police, Gandhinagar, copy of which is produced on Page 3 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined record at Page No.21 of the compilation submitted that by the said Notification, duration of night curfew was extended and if the Hon'ble Court would make a cursory glance upon list of the cities mentioned in the said list, in that event, it would be found out that name of Anjar city is not there in the said list. He further submitted that as per the said Notification, for performing the marriage function, maximum 50 persons were allowed to gather in open and/or closed premises, whereas for performing the after death rituals, maximum 20 persons were allowed and except above, there is no specific instructions mentioned in the said Notification with regard to gathering of persons for other functions, therefore by no stretch of imagination, it can be said that the present applicants have committed any breach of the guidelines of the Notification issued by the State Government from time to time. He submitted that all the accused persons are working in the police department and because of pandemic, they had worked in a stand-by position all throughout and used to remain in contact with each other, therefore, the prosecution launched against the applicants is required to be quashed and set aside.
7. Learned advocate submitted that so far as invocation of Section 188 of the IPC is concerned, there is specific bar as provided under Section 195 of the CrPC and for invocation of charge under Page 4 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined the said section, the prosecution has to register private complaint instead of registering FIR. He referred to Regulation 13 of Gujarat Epidemic Diseases, Covid-19 Regulations, 2020 and submitted that as per said Regulation, any person/ institution/ organization found violating any provision of these regulations shall be deemed to have committed an offence punishable under Section 188 of the IPC, in that event, the Commissioner of Health, Family Welfare, Medical Services, Medical Education & Research or District Collector of a district shall be a competent authority for initiating any proceeding under these regulations for its violation. He, therefore, submitted that in the present case, the complainant, who has lodged the impugned FIR, is the Police Inspector of Anjar Police Station, Gandhidham, therefore, the said provision is not at all applicable in the present case as there is specific bar as provided under Section 195 of the CrPC. He submitted that so far as the invocation of charge under the provision of the Disaster Management Act, 2005, he has placed reliance upon Section 71 of the said provision and submitted that the language employed in the said section are para material identical to Section 195 of the CrPC and there is specific bar against the institution of prosecution by registering FIR against the guilty persons and admittedly herein in this case on hand, the impugned FIR has been lodged against the accused Page 5 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined instead of filing private complaint, therefore, the prosecution launched against the applicants is required to be quashed and set aside.
8. At this stage, learned advocate submitted that considering the principle of law laid down by the Hon'ble Apex Court in case of State of Haryana Vs. Bhajan Lal, reported in AIR 1992 SC 604 as well as in case of R.P. Kapur Vs. State of Punjab, reported in AIR 1960 SC 866 : 1960 Cri LJ 1239, the prosecution launched against the applicant is required to be quashed and set aside.
9. On the other hand, learned APP Mr. Maheta opposed the present application with a vehemence and submitted that specific allegations are leveled against each accused persons and prima facie basic and essential ingredients to constitute the offence against the applicant are made out. He further submitted that in fact, video of the accused went viral on electronic media, which clearly goes on to suggest the commission of offence by the accused. He further submitted that at the time of pandemic, situation was not in control, therefore, the restriction was imposed by issuing Notification and the applicants being the police officials have violated the guideline issued by the State Government and thereby they have committed alleged offences. It is, therefore urged that the present application may not be entertained and it may be rejected.
10. I have given my thoughtful consideration to the Page 6 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined submissions advanced by the learned advocates for the respective parties. After hearing the learned advocates for the respective parties and perusing the contents of the FIR, this Court is of the considered opinion that the complainant has tried to misuse the machinery of criminal law. For ascertaining as to whether any offence as alleged in the FIR is established or not, this Court has very minutely gone through the allegations and the documents as pointed out by the respective parties.
11. Before evaluating the contentions advanced on behalf of the parties, it will be useful to briefly notice the scope and ambit of the inherent powers of the High Court under Section 482 of the CrPC. The section itself envisages three circumstances, under which, the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent an abuse of the process of court; and to otherwise secure the ends of justice. Nevertheless, it is neither possible nor discernible to lay down any inflexible rule which govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said provision is very wide, but is not unlimited. Therefore, it has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exits. It needs little emphasis that the Page 7 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined inherent jurisdiction does not confer any arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce any justice.
12. In the case of R.P. Kumar (supra), the Supreme Court had summarized some of the categories of cases where the inherent power under Section 482 of the Code could be exercised by the High Court to quash criminal proceedings against the accused. These are; (i) where it manifestly appear that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction; (ii) where allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
13. In the case of G. Sagar vs. State of U.P., reported in (2000) 2 SCC 636, the Supreme Court had opined as follows;
"Jurisdiction under Section 482 of the Code has to be exercised with a great care. In exercise of its jurisdiction High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other Page 8 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. A bare perusal of the contents of the FIR, it is found out that at the time of pandemic, though there were restriction on gathering, the accused have arranged birthday party and gathered in one room and the said moment was videographed, which was got viral, therefore, the inquiry was made then, the impugned FIR has been lodged. However it is found out from bare perusal of the allegations and accusations leveled against the applicant herein are taken at their face value and accepted in their entirety, in that event, they do not prima facie constitute any offence or make out a case against the accused as the basic, essential and requisite ingredients for the alleged offences are missing.
15. Before adverting to the rival submissions canvassed on either side, it would be appropriate to deal with the relevant provisions of law.
Clause (a) of sub-section (1) of Section 195Cr.P.C. reads as under:
Page 9 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined "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; except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;."
16. Thus from the above provision, it is clear that section 195 of the CrPC is a sufficient protection provided, which are in the mandatory form and noncompliance of it would vitiate the prosecution. Sub-section (1)(a)(i)(iii) of Section 195 of the CrPC provides that the offences which are punishable under Sections 172 to 188 of the IPC would be taken cognizance by the Court only on a complaint in writing to that Court by public servant concerned or of some other public servant Page 10 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined to whom he is administratively subordinate. Section 2(d) of CrPC defines the term 'complaint' which 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. Section 2(r) of CrPC given the meaning of police report, which says, a report forwarded by a police officer to a Magistrate under sub-section(2) of Section 173 CrPC. Therefore the law under Section 195 of the CrPC provides for a complaint in writing before the Court, for the Court to take cognizance of the matter; filing of FIR by the police for the offence punishable under Sections 172 to 188 of IPC before the Police Station is bad in law. It appears that proceedings under the present offence is hit by Section 195 of the CrPC. It is a well settled law that the invocation of Section 188 of IPC is subject to the provisions of Section 195 Cr.P.C.
17. At this stage, I would like to place reliance upon the judgment of the Hon'ble Supreme Court in case of Saloni Arora Vs. State (Govt. Of NCT of Delhi) reported in (2017) 3 SCC 286 referring to the case of Daulat Ram Vs. State of Punjab, reported in AIR 1962 SC 1206, wherein the Hon'ble Supreme Court while dealing with the provisions of Section 195 CrPC, has observed in Paragraph Nos.9 and 10 as under:
Page 11 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined "9. As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in Daulat Ram v. State of Punjab that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.
10. It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:
There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be Page 12 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-
sheet. The complaint must be in
writing by the public servant
concerned. The trial under S.182
without the Tehsildar's complaint in writing is, therefore, without jurisdiction ab initio."
(Emphasis supplied)
18. A useful reference can be made to the judgment of the Coordinate Bench of this Court in case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat, reported in 2018 (1) GLH 63, wherein the Coordinate Bench of this Court has considered the judgment of the Hon'ble Supreme Court in case of C. Muniappan & Ors. Vs. State of Tamil Nadu, reported in (2010) 9 SCC 567 as also the ratio laid down in various judgments in connection to the provision of section 195 CrPC and made observations in Paragraph No.48, which read as under:
"27. xxx xxx xxx
28. Section 195(1)(a)(i) CrPC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the Page 13 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC Page 14 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; 2 K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).
29. The test of whether there is evasion or noncompliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis- describing it or by putting a wrong label on it.
30. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :
"....Provisions of Section 195 CrPC are Page 15 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined 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."
(Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :
"7. ..Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise." (Emphasis supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In Page 16 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under : "The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside."
(Emphasis added)
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 Section 195 Cr.PC 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 complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.
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34. Learned counsel for the appellants have submitted that no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. More so, it falsifies the very genesis of the case of the prosecution as the prohibitory orders had not been violated, no subsequent incident could occur. Thus, entire prosecution case falls.
35. Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent Public Servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial Court to frame a charge under Section 188 IPC. However, we do not agree with the further submission that absence of a complaint under Section 195 Cr.PC falsifies the genesis of the prosecution's case and is fatal to the entire prosecution case.
36. There is ample evidence on record to show that there was a prohibitory order; which had been issued by the competent officer one day before; it had been given due Page 18 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined publicity and had been brought to the notice of the public at large; it has been violated as there is no denial even by the accused persons that there was no `Rasta Roko Andolan'. Unfortunately, the agitation which initially started peacefully turned ugly and violent when the public transport vehicles were subjected to attack and damage. In such an eventuality, we hold that in case the charges under Section 188 IPC are quashed, it would by no means have any bearing on the case of the prosecution, so far as the charges for other offences are concerned."
19. Even in a judgment of the Hon'ble Supreme Court in case of State of Punjab Vs. Raj Singh & Anr., reported in 1998 Crl. L.J. 1104, the Hon'ble Supreme Court took the view that the statutory power of the police to investigate under the CrPC is not in any way controlled or circumscribed by section 195 CrPC. The relevant observations is quoted herein below:
"We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 467 and 468 I.P.C. by Chem in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and Page 19 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined investigation into the same by the police. From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) Cr. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 19591) (b) Cr. P. C. , but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down tin section 340 Cr. P.C. The judgment of this Court in Gopal Krishna Page 20 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined Menon and Anr. Vs. D. Raja Reddy [AIR 1983 SC 1053], on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the Civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195 Cr.P.C."
20. Considering the controversy involved in the petition, it appears that during the pandemic of Covid-19, the lock-down was declared. Pursuant to the order of Central Government, State Government has issued Notification imposing restrictions upon the public at large to curtail the spread of disease. In case of failure of any of direction of Notification, it may be considered as the violation of Section 188 of the Indian Penal Code, 1860 as well as Sections 51 to 58 of the Disaster Management Act. It appears that obviously, both the offences are bailable and FIR is lodged by the Police Inspector, but it is needless to say that the said FIR does not fall within the definition of 2(d) as defined in the complaint and written complaint is not filed before any Magistrate, which is an admitted fact.
21. In case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat reported in 2018 (1) G.L.H. 63, wherein, the Coordinate Bench of this Court has Page 21 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined observed as under:-
39. It is true that section 195 of the Code does not bar the trial of an accused for a distinct offence disclosed by the same set of facts and is not so stated therein.
Section 195 also does not provide further that if in the course of the commission of that offence, the other distinct offences are committed, the court concerned is debarred from taking cognizance in respect of those offences as well. However, if the perusal of the first information report and other papers of the chargesheet makes it clear that the offence under sections 186 or 188 of the IPC, as the case may be, is closely interconnected with the other distinct offences and cannot be split up, then, in such circumstances, the bar of section 195 of the Cr.P.C. will apply to such other distinct offences also.
40. xxx xxx xxx
41. Thus, what is discernible from the decisions referred to above of the Supreme Court is that if in truth and substance, an offence falls in the category of sections in section 195, it is not open to the court to undertake the exercise of spliting them up and proceeding further against the accused for the other distinct offences. This would depend on the facts of each Page 22 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined case. It cannot be laid as a straitjacket formula that the Court cannot undertake the exercise of spliting up. It would depend upon the nature of the allegations and the materials on record.
42. xxx xxx xxx
43. Thus, according to the decision of the Supreme Court refered to above, the provision in section 195 of the code should not be evaded by resorting to devises and 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. If in truth and substance, the offence falls in the category of the sections mentioned in section 195 of the Code, the prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong lable on it or changing its garb. If the facts disclose an offence requiring special complaint under section 195 of the Code, the provision cannot be circumvented by filing a complaint, for which, no special complaint is required under the law, the nature of the offence being the same.
44. xxx xxx xxx Page 23 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined
45. xxx xxx xxx
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 Page 24 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined can be said to have been an integral part of one transaction.
22. I have also considered Gujarat Epidemic Diseases, Covid-19 Regulations, 2020, upon which reliance has been placed by learned advocate for the applicant, more particularly, Regulation 13 thereof, which provides that if any person/ institution/ organization found violating any provision of these regulations shall be deemed to have committed an offence punishable under Section 188 of the IPC, in that event, the Commissioner of Health, Family Welfare, Medical Services, Medical Education and Research or District Collector of a district shall be a competent authority for initiating any proceeding under these regulations for its violation. However in the facts of the present case on hand, admittedly, the complainant in the present case is the Police Officer, who is not a competent officer as provided under the Act.
23. It would be apposite to refer the decisions of this Court as well as the Honble Apex Court in case of (i) Mandip Gopalbhai Zalavadiya Vs. State of Gujarat & Anr. passed in Criminal Misc. Application No.16178 of 2021 dated 26.06.2024 (ii) Saloni Arora Vs. State (Govt of NCT of Delhi) reported in 2017(0) AIJEL-SC 59615 and (iii) Kandhal Sarman Jadeja Vs. State of Gujarat reported in 2019 (0) AIJEL-HC 240222.
24. It is necessary to consider whether the power conferred by the High Court under section 482 of Page 25 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Honble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872 and in case of Bhajan Lal (supra), the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of Page 26 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in Page 27 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
25. Thus in view of the aforesaid observations made by the Hon'ble Supreme Court as well as this Court in the aforesaid decisions, I am of the considered opinion that even if the allegations levelled against the applicant in the impugned FIR are taken at their face value and accepted in their entirety, keeping in view the facts of the present case and the penal provisions, they do not prima facie constitute any offence or make out a case against the accused persons, as per the parameters set out by the Hon'ble Apex Court in the case of Bhajan Lal (supra) and in the case of R.P. Kapur (supra).
26. Further, the scope and ambit of inherent powers of the Court under Section 482 CrPC or the extra- ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, this Court has inherent power to do real and Page 28 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined substantial justice, or to prevent abuse of the process of the Court. At the same time, the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, this Court can exercise its inherent power or extra-ordinary power if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court, or the ends of justice require that the proceeding ought to be quashed.
27. Thus, if the facts of the present case are to be examined in the context of the aforesaid observations made by the Hon'ble Apex Court, I am of the considered opinion that the chances of an ultimate conviction of the applicant on the basis of the facts of the present case are bleak and therefore continuation of criminal prosecution against the applicant is nothing but sheer misuse of process of the Court. Thus, considering the ratio enunciated by the Hon'ble Apex Court in catena of decisions, I am of the considered opinion that the FIR in question deserves to be quashed qua the applicant.
28. It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the CrPC. It is for this reason, in my considered Page 29 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025 NEUTRAL CITATION R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025 undefined opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 188 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above.
29. In the result, the application succeeds and is hereby allowed. Accordingly, the impugned First Information Report being C.R. No.11993003210676/ 2021 registered with Anjar Police Station, Kutchh and all other consequential proceedings arising out of said FIR are hereby quashed and set qua the applicants.
30. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.) Gautam Page 30 of 30 Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025