Rajeshbhai Ralumalbhai ... vs State Of Gujarat

                                                                                     NEUTRAL CITATION




     R/CR.MA/24536/2015                              JUDGMENT DATED: 02/08/2023

                                                                                     undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 24536 of 2015

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
1      Whether Reporters of Local Papers may be allowed                   No
       to see the judgment ?

2      To be referred to the Reporter or not ?                            No

3      Whether their Lordships wish to see the fair copy                  No
       of the judgment ?

4      Whether this case involves a substantial question                  No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
            RAJESHBHAI RALUMALBHAI SHEHDADPURI & 2 other(s)
                               Versus
                     STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR JB DASTOOR(239) for the Applicant(s) No. 1,2,3
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                               Date : 02/08/2023

                               ORAL JUDGMENT

1. By way of this petition under Section 482 of the Code of Criminal Procedure, the petitioner seeks challenge the quashment of common order passed below Exh.7, Exh.10 and Exh.17 dated 07.04.2015 in Criminal Case No.16673 of 2009 passed by the learned Additional JMFC, Ahmeabad (Rural).

NEUTRAL CITATION R/CR.MA/24536/2015 JUDGMENT DATED: 02/08/2023 undefined

2. The facts which can be garnered from the pleadings is that on 12.09.2003, offence under section 186, 114 of IPC were registered against the petitioners. That on 18.07.2009, the Investigating Officer completed investigation and filed charge sheet in the court of JMFC. That on 03.10.2003, petitioner no.1 had preferred Criminal Misc. Application No.7936 of 2003 for quashing of FIR on the ground that same is barred by section 195 of Cr.P.C. in absence of written complaint to the court by the concerned public servant and no court can take any cognizance of the offence alleged. The petitioner was withdrawn on 07.05.2009 with liberty to raise all the contentions before the Trial Court. That on 27.08.2009, petitioners preferred application Exh.7 and Exh.17 praying for passing appropriate order pursuant to bar of taking cognizance under section 195(1)

(b)(i) of IPC. The petitioners had also preferred application Exh.10 praying for registering of offence against the IO. That on 07.04.2015, learned Additional JMFC, Ahmedabad (Rural) rejected all the applications. Hence, this petition.

3. Learned Advocate for the petitioners submits that the petitioners are prosecuted for offence under section 186 of IPC. It is further submitted that section 195 of IPC bars taking of cognizance of offence under section 186 of IPC except on the complaint in writing of the public servant concerned. He would further submit that there is no obstruction at the hand of the petitioner preventing the respondent no.2 to discharge his duty.

3.1 Mr.Dastoor would further press into service Section 195(1)

(a) of the Code of Criminal Procedure and submits that until Page 2 of 5 Downloaded on : Sat Sep 16 23:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/24536/2015 JUDGMENT DATED: 02/08/2023 undefined complaint filed by the public servant concerned, no Court shall be permitted to take cognizance for any offence punishable under Section 176 and 186 of the IPC. He would further submit that the complaint which is defined in Section 2(d) of the Code of Criminal Procedure is not filed in the present case. He would further submit that Court has no authority to take cognizance upon FIR in view of specific bar operating under Section 195(1)

(a) of the Code. Thus, considering the submissions made, he prayed to quash the order dated 07.04.2015 passed in Criminal Case No.16673 of 2009 and proceedings of Criminal Case No.16673 of 2009 pending before learned Additional JMFC, Ahmedabad (Rural).

4. Learned APP submits that having gone through Section 195 of the Code, appropriate order may be passed.

5. At the outset, this Court would like to refer to Section 195(1)(a) of the Code which reads thus;

"(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;"

NEUTRAL CITATION R/CR.MA/24536/2015 JUDGMENT DATED: 02/08/2023 undefined 5.1 The complaint is defined in Section 2(d) of the Code which reads thus:

"2 (d) " complaint" 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.

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 be the complainant;"

6. Thus, the complaint means any allegation made in oral or writing to the Magistrate with a view to his taking action under the Code for alleged offence. The complaint would not include the police report. In other words, complaint cannot be equated with FIR / police report. Complaint is filed with Magistrate while FIR is to be registered by Police.

7. Section 195(1)(a) of the code specifically bars taking cognizance of the offence under Section 186 of the IPC; except complaint is filed. In other words, the Court is not empowered to take cognizance of the offence upon the police report; but for taking cognizance of offence under Section 186 of the IPC, a complaint as defined in Section 2(d) of the Code has to be made.

8. In the present case, admittedly, it is FIR which is filed by respondent No.2 alleging the offence under Section 186 of the Page 4 of 5 Downloaded on : Sat Sep 16 23:53:15 IST 2023 NEUTRAL CITATION R/CR.MA/24536/2015 JUDGMENT DATED: 02/08/2023 undefined IPC. A statutory bar created under Section 195(1)(a) operates since the Court is not empowered to take a cognizance. Allowing the FIR for the alleged offence under Section 186 of the IPC, at the most, would culminate into charge-sheet i.e. police report; but it would be futile exercise as the Court was not empowered to take cognizance. Thus, the FIR is highly improbable and absurd.

9. In this given facts and circumstances of the case, petition deserves consideration and is allowed. Order dated 07.04.2015 passed below Exh.7, Exh.10 and Exh.17 in Criminal Case No.16673 of 2009 and proceedings of Criminal Case No.16673 of 2009 pending before learned Additional JMFC, Ahmedabad (Rural) and all other consequential proceedings arising out thereof is quashed and set aside. Rule is made absolute.

(J. C. DOSHI,J) SATISH Page 5 of 5 Downloaded on : Sat Sep 16 23:53:15 IST 2023