Shivabhai Kamabhai Thakor vs State Of Gujarat on 2 November, 2020

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Gujarat High Court

Shivabhai Kamabhai Thakor vs State Of Gujarat on 2 November, 2020

Bench: A.G.Uraizee

        R/CR.MA/9854/2020                                   ORDER



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/CRIMINAL MISC.APPLICATION NO. 9854 of 2020
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                          SHIVABHAI KAMABHAI THAKOR
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MR HARDIK SONI, APP (2) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
                   Date : 02/11/2020
                    ORAL ORDER

1. Rule. Mr. Hardik Soni, learned APP waives service of notice of rule on behalf of the respondent No.1.

2. The present application under Section 482 of the Code of Criminal Procedure, 1973 ("the Code" for short) is preferred to quash and set aside the FIR No.11211014200212 of 2020 registered with the Dasada Police Station, Surendranagar for the offence punishable under Sections 279, 337, 134 and 188 of the Indian Penal Code against the applicant.

3. Heard Mr. Mahesh K. Poojara, learned advocate for the applicant and Mr. Hardik Soni, learned APP for the respondent No.1.

4. Mr. Poojara, learned advocate for the applicant submits that the issue involved in this petition is no longer res integra and is covered by the decision of this Court in the case of Goverdhankumar Thakoredas Asrani v. State of Gujarat reported in [2018] 1 GLH 63. He, therefore, submits that the impugned FIR may be quashed and set aside.

5. Mr. Soni, learned advocate for the respondent No.1 submits that liberty may be reserved in favour of the State Government to take out fresh proceedings against the applicant by filing complaint in the Court of learned Magistrate under the provision of Section 195 of the Code.

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R/CR.MA/9854/2020 ORDER

6. In order to appreciate the submission canvassed at the bar, it is necessary to refer certain part of Section 195 of the Code, which reads as under:-

"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 Courts shall take cognizance-

(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or

(ii) of any abetment if, 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,"

7. It is thus eminently clear from the above provision that cognizance for offence punishable under Section 172 to 188 cannot be taken by Police but a complaint in respect of this offence has to be filed in the Court.

8. It is, therefore, necessary to refer to section 2(a) of the Code with defines complaint. It is as under:-

"(d)" complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, tht some person, whether known or unknown, has committed an offene, but does not include a police report.

Explanation - A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint, and the police officer by whom such report is made shall be deemed to e the complainant,"

9. This Court in the Case of Goverdhankumar Thakoredas Asrani (supra) after referring to catena of decisions of the Supreme Page 2 of 3 Downloaded on : Tue Nov 03 20:41:36 IST 2020 R/CR.MA/9854/2020 ORDER Court has held that congnizance of the FIR for the offence under Section 186 of IPC coupled with allied Sections cannot be taken by the Police. As per Section 195 of the Code, concerned complainant has to file a complaint in the Court of learned Magistrate for the offences which are covered under the said Section.

10. In view thereof, I am of the view that having regard to the nature of allegations, more particularly, allegations regarding Section 186 of IPC, the Police ought not to have taken cognizance of the offences. The only course open to the complaint was to file a complaint under Section 195 of the Code, and therefore, the present application deserves to be allowed and the impugned FIR is required to be quashed and set aside with the liberty in favour of the State Government to file appropriate proceedings in the competent Court under the provision prescribed by the law.

11. In view of the above, the present application succeeds and is hereby allowed.. The FIR being FIR No. 11211014200212 of 2020 registered with the Dasada Police Station, Surendranagar is hereby quashed and set aside..

12. Liberty reserved in favour of the State Government to file fresh proceedings against the applicant by following the provisions prescribed by law. In case the issue regarding the limitation prescribed under Section 468 of the Code arises, shall stand terminated with liberty in favour of the State Government to file appropriate proceedings in the competent Court, the Court concerned consider the provision of Section 473 of the Code. Rule is made absolute.

13. Registry is directed to send the copy of the order through email or Fax to the concerned trial Court.

(A.G.URAIZEE, J) NAIR SMITA V./MANOJ Page 3 of 3 Downloaded on : Tue Nov 03 20:41:36 IST 2020

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