Gujarat High Court
Mandip Gopalbhai Zalavadiya vs State Of Gujarat on 26 June, 2024
NEUTRAL CITATION
R/CR.MA/16178/2021 ORDER DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16178 of 2021
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MANDIP GOPALBHAI ZALAVADIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR YOGESHKUMAR A RATANPARA(7260) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 26/06/2024
ORAL ORDER
1. Considering the facts and circumstances of the case, this matter is taken up for final disposal forthwith.
2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicant has prayed to quash and set aside the complaint being FIR No.11203037200171 of 2020 registered with Manavadar Police Station, Junagadh, for the offences under Sections 188, 153AA, 153A(2), 153B(1)(c), 295A and 505(1)b of the IPC and under Section 54 of the Disaster Management Act, 2005 and Criminal Case No.346 of 2020 and all the consequential proceedings arising therefrom.
3. The facts, in a nutshell, of the present case is as under:
In the present case, applicant is only an accused. As per the allegations made in the FIR, it appears that on 31.03.2020 at 4.46 Page 1 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined P.M. applicant posted on Social Media that "Mandirose dan Masjitose corona", thereafter, second time, on the same date at 11 P.M., he posted that "Sahinbag- Masjid-Corona- Desdroh kitne milte julte sabdah he.. na..!!!,". Thereafter, on 03.04.2020 at 10.34 A.M., he posted on photo of corona virus wear muslim hat. In this regard complaint is lodged. Thereafter, he surrender at police station and released on bail and Investigation Officer has filed charge-sheet against present applicant on 26.07.2020.
4. Heard learned advocates on both the sides.
5. Learned advocate for the applicant submits that the applicant herein has nothing to do with the offence and has been falsely implicated in the present case. A bare perusal of the FIR reveals that all the facts narrated are either false or twisted with intent to mislead the Court and the Investigating Authority. Learned advocate submits that the Investigating Officer has not charge-sheeted any evidence with regard to social media account, who used the account and the Investigating Officer has also not produced any evidence with regard to post of the social media. Learned advocate further submits that with a view to tarnish the image the applicant and his family in the society, the complaint is filed as the applicant belongs to respected family, his father is a reputed advocate and president of Bar. Learned advocate submits that the Investigating Officer has filed charge- sheet against the applicant and only statement of only one witness was recorded, which is not direct witness, who is here say witness and no any evidence has been collected with regard to Page 2 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined alleged act. In view of above, he has requested to allow the present application. He has relied on the decision of the Co- ordinate Bench of this Court in case of Rajasinh Dilipsinh Rathod & Ors. vs. State of Gujarat and Ors. passed in Criminal Misc. Application No.13204 of 2016.
6. Learned APP has vehemently opposed the application and submitted that there is no bar under Section 195A of the Cr.P.C. and offence under Section 153 of IPC is also there. Learned APP has relied upon the decision of the Hon'ble Apex Court in case of C. Muniappan & Ors. vs. State of Tamil Nadu reported in (2010) 9 SCC 567 and requested to dismiss the present application.
7. Having heard learned advocates for the respective parties and having going through the record, It appears that proceedings under the present offence is hit by section 195 of the Cr.P.C. 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. For our purpose, clause (a) of sub-section (1) of Section 195 is relevant. It 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 Page 3 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined
(ii) of any abetment of, 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;....."
8. Considering the fact that herein only one series of fact, one complaint under Section 188 of IPC is registered without any authorization of the competent authority and FIR is filed.
9. In case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat reported in 2018 (1) G.L.H. 63, wherein, the Co-ordinate Bench of this Court has 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 charge- sheet 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.
XXX XXX XXX XXX XXX Page 4 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined
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 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.
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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.
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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 Page 5 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined 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."
10. Considering the fact that there is no any evidence or proof qua circulation of said head speech by present applicant. No evidence is annexed or enclosed with the record. So far as Disaster Management Act and other Act is concerned, considering Section 188 of IPC as discussed in earlier part is not concluded, there is no any iota of evidence for the commission of offence under Section 153AA, 153A(2), 153B(1)(c), 295A and 505(1)b of the IPC along with Section 188 of IPC in the series of the same act, complaint being lodged without any authorization.
11. A plain reading of the above provision shows that it bars the Court from taking cognizance of any offence punishable Page 6 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined under Sections 172 to 188 or abetment or attempt to commit the same; unless there is a written complaint by the 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 public servant. The legislative intent behind such a provision is that an individual should not face criminal prosecution instituted upon insufficient grounds by a person actuated by malice. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.P.C. that any person can set the law in motion by making a complaint, as it prohibits the Court from taking cognizance of certain offences unless and until a complaint has been made by some particular authority or person.
12. In the present cases, apart from invocation of Sections 172 to 188 of IPC, offences under other Sections of the Indian Penal Code as also the Gujarat Police Act and Disaster Management Act have been invoked. The test whether there is non-compliance of the provision of Section 195 Cr.P.C. 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. The provision of Section 195 Cr.P.C. 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.P.C. In the cases on hand, the facts suggest that the offences, other than one punishable under Sections 172 to 188 of IPC, are inseparable and are related Page 7 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined to the offence for which a complaint of the Court or of a public servant is required or is mandatory. In the present cases, admittedly, no such complaint has been given and thus, the provision of Section 195 Cr.P.C. have not been complied with. Under the circumstances, the impugned complaints deserve to be quashed and set aside on this ground alone as alleged offence of Section 153A of IPC along with Section 188 of IPC and under the Disaster Management Act, 2005, which is not separate offence. Herein both offence/act are not separate. In view of law laid down by the Hon'ble Apex Court in case of C. Muniappan (supra), wherein two separate distinct offences and information were reported and offence was registered and the said decision would not avail any assistance to learned APP.
13. It is necessary to consider whether the power conferred by the High Court under section 482 of 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 Page 8 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined 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 Hon'ble 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 State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, 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 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 Page 9 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024 NEUTRAL CITATION R/CR.MA/16178/2021 ORDER DATED: 26/06/2024 undefined 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 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."
14. In view of above, present application deserves to be allowed as discussed in earlier part, the proceedings deserves to be quashed and set aside.
15. In the result, the application is allowed. The impugned complaint being FIR No.11203037200171 of 2020 registered with Manavadar Police Station, Junagadh and Criminal Case No.346 of 2020 as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicant herein. Rule is made absolute. Direct service is permitted.
It shall be kept open to the State to file a fresh proceedings by following the due procedure prescribed by law.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 10 of 10 Downloaded on : Mon Jul 01 20:41:09 IST 2024