Gujarat High Court
Gunjanben D/O Ashokbhai Mehta vs State Of Gujarat on 9 May, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/3422/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3422 of 2019
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GUNJANBEN D/O ASHOKBHAI MEHTA
Versus
STATE OF GUJARAT
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Appearance:
MR BT GADHAVI(6092) for the Applicant(s) No. 1,2
MS SHEEBA K MAHENDIRATTA(10354) for the Applicant(s) No. 1,2
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MD MEHTA, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 09/05/2019
ORAL ORDER
Rule. Learned APP waives service of rule for the respondent-State.
1. This is a petition, seeking quashment of the FIR being II-C.R. No. 3365/2018, registered with Anandnagar Police Station under Section 186 of the Indian Penal Code, 1860.
2. Though, notice has been issued by this Court on 25.03.2019, the original complainant has chosen not to appear before this Court.
3. This Court has heard the learned Advocate, Ms. Mahendiratta, for the petitioner and the learned APP for the respondent-State.
4. Having heard learned Counsels on both the sides, this being a complaint made under Section 186 of the IPC, where, the petitioner has been given the anticipatory bail, considering the fact that this is a complaint made by a police personnel, decision of this Court in Criminal Misc. Application No. 12768/2012, Dated: 15.11.2014, would need to be considered profitably, where, the FIR was filed by the Taluka Development Officer stating that she is a Class-II Gazetted Officer and posted by the State Government as the Taluka Development Officer, Page 1 of 5 Downloaded on : Mon Oct 11 22:37:30 IST 2021 R/SCR.A/3422/2019 ORDER Gariyadhar Taluka Panchayat, Gariyadhar, District: Bhavnagar with effect from 11th June, 2012. It is further stated in the FIR that the Gariyadhar Taluka Panchayat is a body duly constituted under the provisions of the Gujarat Panchayats Act, 1993 and there are, in all, 50 villages in the Taluka of Gariyadhar. It is, further, stated that she has to look after the administration of the Taluka Panchayat and the implementation of the various schemes of the State Government as well as the Central Government in the Taluka of Gariyadhar. She alleged that the petitioner therein, who was the Dy. Sarpanch of the Parvdi Gram Panchayat used to come to the office of the Gariyadhar Taluka Panchayat and used to misbehave with the staff members as well as with her, and thereby, he used to obstruct the smooth functioning of the administration. It was, further. alleged that the petitioner used to administer threats to the staff members as well as to the first informant in person as well as on cellphone. The petitioner used to pressurize the staff members as well as the first informant for the execution of the public works of the Parvdi Gram Panchayat, at the earliest. It was further alleged that without following any lawful procedure, the petitioner used to proceed ahead with the construction work and used to insist for the release of the necessary funds towards the bills for the same. It is stated in the first information report that, time and again, he was requested to cooperate with the administration and behave properly. However, the same was of no avail, and hence, the FIR was lodged.
4.1 This Court (Coram: Mr. J.B. Pardiwala, J.) noted that, at the time of lodging of the first information report, Section 507 of the Indian Penal Code was invoked, as the offence alleged to be committed by the petitioner. However, later on, by way of a further report filed by the police, section 186 of the Indian Penal Code was sought to be added. Section 186 of the Indian Penal Code is with regard to obstructing public servants in discharge of their public function. This Court also Page 2 of 5 Downloaded on : Mon Oct 11 22:37:30 IST 2021 R/SCR.A/3422/2019 ORDER noted that Sections 507 and 186 of the IPC are non-cognizable offences, but, by way of an amendment dated 27th December, 1979, the offence punishable under section 186 of the IPC, when committed in any area of the Gujarat State not withstanding anything contained in the Code of Criminal Procedure, the same is made cognizable.
4.1.1 On hearing learned Advocates on both the sides, this Court found that the main ingredients to constitute an offence under Section 186 of the IPC, viz. (I) There must be an obstruction, (II) The obstruction must be by the accused, (III) The obstruction must be voluntary, (IV) The obstruction must be of a public servant, (V) The obstruction must be in discharge of his public functions, were missing, even if, the entire case of the complainant is accepted. The relevant observation of this Court are as under:
"8. To constitute an offence under section 186 of the Indian Penal Code, the following ingredients must be present:
(I) There must be an obstruction. (II) The obstruction must be by the accused. (III) The obstruction must be voluntary. (IV) The obstruction must be of a public servant. (V) The obstruction must be in discharge of his public functions.
9. In my view, even if the entire case of the respondent No.2 is accepted as it is, it cannot be said that there was any obstruction within the meaning of section 186 of the Indian Penal Code.
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15. It may not be out of place to state that section 186 of the Indian Penal Code is covered under the section 195 of the Code of Criminal Procedure. I am conscious of the Page 3 of 5 Downloaded on : Mon Oct 11 22:37:30 IST 2021 R/SCR.A/3422/2019 ORDER fact that section 507 is not covered under section 195 of the Code of Criminal Procedure, but the law is well settled that if some of the offences not falling within section 195 of the Code of Criminal Procedure are forming part of one integral transaction, then even those offences would be covered under section 195. Even if I permit the police to continue with the investigation as on today as it is permissible because section 195 of the Code of Criminal Procedure will not come in the way of the police so far as their powers to investigate the offence is concerned, yet, ultimately, the court will not be able to take cognizance upon the police report. The complainant will have to file a private complaint before the court of magistrate and it is only that court who will be competent to take cognizance of the offence on such complaint.
16. In my view, at best, the behavior of the petitioner herein as a Deputy Sarpanch could be termed as a disgraceful conduct for which appropriate proceedings under section 57 of the Gujarat Panchayats Act, 1993 could have been initiated to remove him from the office. Section 57(1) of the Gujarat Panchayats Act, 1993 reads as under: "The competent authority may remove from office any member of the panchayat, the Sarpanch or, as the case may be, the Upa-Sarpanch thereof, after giving him an opportunity of being heard and giving due notice in that behalf to the panchayat and after such inquiry as it deems necessary, if such member, Sarpanch or, as the case may be, Upa-Sarpanch has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or abuses his powers or makes persistent default in the performance of his duties and functions under this Act or has become incapable of performing his duties and functions under this Act. The Sarpanch or, as the case may be, the Upa-Sarpanch, so removed may at the discretion of the competent authority also be removed from the membership of the panchayat."
17. However, in my view, it does not constitute any offence either under sections 186 or 507 of the Indian Penal Code as discussed above."
Page 4 of 5 Downloaded on : Mon Oct 11 22:37:30 IST 2021R/SCR.A/3422/2019 ORDER 4.2 In the instant case also, if, the allegations made by the
complainant, who is a police personnel, in the impugned FIR are perused, the essential ingredients of the offence under Section 186 of the IPC are missing. Therefore, in wake of the above decision of this Court, the impugned FIR cannot be permitted to continue.
5. Resultantly, this petition is ALLOWED and the impugned FIR being II-C.R. No. 3365/2018, registered with Anandnagar Police Station, is QUASHED and set aside.
5.1 However, this will not preclude the police from initiating actions qua the other provisions of IPC, IF ANY, are concerned.
Rule is made absolute, accordingly. Direct service is permitted.
(SONIA GOKANI, J) UMESH/-
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