Gujarat High Court
Atulbhai Surajmal Maheshvari vs State Of Gujarat on 24 July, 2024
NEUTRAL CITATION
R/CR.MA/10229/2020 ORDER DATED: 24/07/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10229 of 2020
==========================================================
ATULBHAI SURAJMAL MAHESHVARI & ANR.
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR. NISARG N JAIN(8807) for the Applicant(s) No. 1,2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 24/07/2024
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.11197006200454 of 2020 registered with Bhadarva Police Station, Vadodara (Rural) for the offences under Sections 188 of the IPC and under Section 51(b) of the Disaster Management Act, 2005 and all the consequential proceedings arising therefrom.
3. The facts, in a nutshell, of the present case is as under:
In this case, applicant No.1 is the director of Lactose (India) Page 1 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined Ltd., while applicant No.2 is the contractor responsible for hiring contract/daily workers for labor. The Central and State Government authorities mandated a nationwide lockdown, enforced by the District Magistrate within Vadodara district limits. Employers were directed to pay full wages to workers during this period. However, the applicants refused to pay wages/remuneration to workers from March 25, 2020, to March 31, 2020. Consequently, the complainant deemed this action in violation of the District Magistrate's notification, prompting the filing of a complaint.
4. Heard learned advocates on both the sides.
5. Learned advocate for the applicants has submitted that the applicants herein have nothing to do with the offence and have 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. It is submitted that the present complaint is filed without application of mind, claimed to be barred by legal provisions, and characterized as unjust, arbitrary, and an abuse of the legal process. It is argued that a careful reading of the orders issued by the Central Government of India, the Circular from the State Government, and the Notification by the District Collector would demonstrate that the petitioners did not contravene any conditions set forth in these notifications. Specifically, the Circular at Annexure-G clarifies that the Collector's Notification at Annexure-F does not apply to the applicants. Consequently, it Page 2 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined is contended that the applicants have not committed any offences under Section 51(b) of the Disaster Management Act or Section 188 of the Indian Penal Code. Regarding the filing of an FIR under Section 188, it is submitted that as per Section 195(1) of the Cr.P.C., such complaints must be filed directly in the Criminal Court and cannot be registered at a police station. Therefore, the FIR pertaining to an offense under Section 188 is argued to be non-maintainable. Additionally, it is alleged that the original complainant's motive was driven by personal vendetta and malice. It is further submitted that the applicants have indeed paid salaries and wages for the relevant period mentioned in the FIR to all staff members, employees, daily and contractual workers associated with the company. However, daily workers who were absent or not part of the manufacturing process on those specific days were not compensated. In light of the significant implications of the orders at Annexure-E and the challenges related to wage payments amidst the financial crisis faced by commercial establishments, reference is made to interim relief orders granted by the Hon'ble Supreme Court in Writ Petition (Civil) Diary No. 11281/2020 and 11193/2020, which are attached as ANNEXURE-I. In view of above, he has requested to allow the present application. Learned advocate for the applicants has relied upon the decision of the Hon'ble Apex Court in case of State of Haryana vs. Bhajan Lal reported in AIR 1992 SC 604.
Page 3 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined
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 188 of IPC is also there. Learned APP has requested to dismiss the present application as with authorisation complaint is filed.
7. Having heard learned advocates for the respective parties and having going through the record, It appears that complaint is filed under Section 188 of the Indian Penal Code, 1860 and Section 51(b) of the Disaster Management Act in connection with the breach of Notification dated 29.03.2020 against the accused persons. Both notifications are produced along with the petition at Annexure-"F" of the compilation.
7.1. 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 and during the lock-down, the businesses were close down and for the said lock-down period, payment and wages is required to be paid to the employee of the said institution or establishment by the employer. In case of failure of any of direction of Notification, which 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 as authorized by the Deputy Collector, but it is needless to say that Page 4 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined 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. Even, otherwise on merits, it is worth to mention that the present petitioners are engaged in the work of Pharmaceuticals and licence was issued by the Food and Drug administration, which is produced at Annexure-B and the Notification issued by the Home Ministry is annexed as Annexure C, for that petitioner No.1-director of the company engaged contractor for their labour work and due to nationwide lock- down, during the period of 25.03.2020 to 31.03.2020 and subsequent thereto, Notification was issued, wherein mention which services remains suspended and which establishment will remain closed. In continuation of the said Notification, another Notification issued, which reveals the clause H, which read as under :
"H. Sub-clause (a) clause 5 to read as :
a. Manufacturing units of essential goods, including drugs, pharmaceutical, medical devices, their raw material & intermediates."
7.2. As per the clause 'H(a)' manufacturing units of the essential goods, including drugs, pharmaceutical medical devices and the raw material & intermediates, all are exempted from the lockdown, meaning thereby, the operation of the company was going on and company was exempted from the implementation of the notification dated 24.03.2020. Pursuant to the Notification dated 24.03.2020, the Notification dated 29.03.2020 was issued by the Government of Gujarat and as per the clause, it was Page 5 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined declared that during the lock down, if any commercial establishment shops are remained closed, even though, they supposed to make payment to their employee and violation of the said Notification lead to an offence under Section 188 of IPC and 51 of the Disaster Management Act, 2005. Section 51 of the Disaster Management Act reads thus :
"51. Punishment for obstruction, etc .- Whoever, without reasonable cause-
(a)obstructs any officer or employee of the Central Government or the State Government, or a person authorised by the National Authority or State Authority or District Authority in the discharge of his functions under this Act; or
(b)refuses to comply with any direction given by or on behalf of the Central Government or the State Government or the National Executive Committee or the State Executive Committee or the District Authority under this Act, shall on conviction be punishable with imprisonment for a term which may extend to one year or with fine, or with both, and if such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, shall on conviction be punishable with imprisonment for a term which may extend to two years."
7.3. Thereafter Government of Gujarat has issued another Circular dated 10.04.2020, which is annexed at Annexure-G, wherein it is further clarified that pursuant to the notification, during the Covid-19 period, the Central Government and Government of Gujarat has been pleased to issue the directives Page 6 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined and the circulars and for 20 days except essential services, all establishment was closed during the lock down. It is further clarified that the exempted establishment, who are engaged in the production and manufacturing of the essential commodities and permitted to continue their activities were exempted from the said circular for making the payment to their employee, who are not remained present and doing the job, meaning thereby employee of the said establishment who remained present at the work and do work, they are only entitled for their wages and at that event of absence of any employee, employers have a right to stop or recover the salary including to initiate the displinary action against them.
In light of the aforesaid circular, this is a clear cut case that there is no any violation on the part of the present petitioners . In view of the aforesaid ciruclar and this is not a case wherein any breach of circular dated 29.03.2020 is committed.
7.4. 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 Page 7 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(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.
Page 8 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined XXX XXX 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 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.
XXX XXX 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.
XXX XXX XXX XXX XXX
XXX XXX XXX XXX XXX
Page 9 of 13
Downloaded on : Sat Jul 27 00:24:08 IST 2024
NEUTRAL CITATION
R/CR.MA/10229/2020 ORDER DATED: 24/07/2024
undefined
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."
10. 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 Disaster Management Act have been invoked.
11. It would be apposite to refer the decisions of this Court as well as the Hon'ble 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.
Page 10 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined
12. 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 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 Page 11 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024 NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined 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 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."
13. In view of above, present application deserves to be allowed as discussed in earlier part, the proceedings deserves to be quashed and set aside.
Page 12 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024NEUTRAL CITATION R/CR.MA/10229/2020 ORDER DATED: 24/07/2024 undefined
14. In the result, the application is allowed. The impugned complaint being FIR No.11197006200454 of 2020 registered with Bhadarva Police Station, Vadodara (Rural) as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein. Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 13 of 13 Downloaded on : Sat Jul 27 00:24:08 IST 2024