Swapnil S/O Suresh @ Keshav ... vs State Of Mah. Thr. Pso Ps Nandgaon ...
2022 Latest Caselaw 7743 Bom

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.


           CRIMINAL APPLN. (APL) NO. 402    OF 2021


APPLICANTS :          1.   Swapnil s/o Suresh @ Keshav
                           Tandulkar, Aged about 31 years,
                           Occu. - Pvt. Job,

                      2.   Suresh @ Keshav s/o Gulabrao
                           Tandulkar, Aged about 62 years, Occ.:
                           Nil,

                      3.   Nanibai w/o Suresh @ Keshav
                           Tandulkar, Aged about 56 years, Occ.:
                           Household,

                      4.   Niranjan s/o Ganpat Karmore, Aged
                           about 56 years, Occ.: Teacher,

                           All R/o. At Post Shivani Rasulapur,
                           Tq. Nandgaon Khandeshwar, Dist.
                           Amravati.

                           -VERSUS-

NON-APPLICANTS :      1.   State of Maharashtra, through Police
                           Station   Officer,  Police   Station
                           Nandgaon       Khandeshwar,      Tq.
                           Nandgaon      Khandeshwar,     Dist.
                           Amravati.

                      2.   Sadashiv s/o Balaji Devkatte, Aged
                           about 31 years, Occ.: Police
                           Constable, Police Station, Nandgaon
                           Khandeshwar,      Tq.      Nandgaon
                           Khandeshwar, Dist. Amravati.




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                Ms Aastha R. Sharma, counsel for the applicants.
                Mr.S.M.Ghodeswar, APP for non-applicant No.1.
                         None for non-applicant No.2.
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                                        CORAM : MANISH PITALE &
                                                VALMIKI SA MENEZES, JJ.

                                        DATE             : 10.08.2022


ORAL JUDGMENT (Per : Manish Pitale, J.)



            Heard.

2. Admit. Heard finally with the consent of the learned counsel

appearing for the parties. Though non-applicant No.2 is duly served,

none has appeared on his behalf.

3. By this application, the applicants have sought quashing of

First Information Report (FIR) No.351 of 2020, dated 08/12/2020,

registered against them at Police Station Nandgaon Khandeshwar,

District Amravati for offences punishable under sections 188, 270,

332, 353, 504 and 506 read with section 34 of the Indian Penal

Code (IPC) and sections 2, 3 and 4 of the Epidemic Diseases Act,

1897. The applicants have also sought quashing of charge-sheet filed

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in pursuance of the aforesaid FIR, submitting that even if the entire

material that has come on record is to be taken for consideration,

the ingredients of the said offences are not made out against the

applicants and that therefore, the present application deserves to be

allowed.

4. The non-applicant No.2 caused the aforesaid FIR to be

registered against the applicants on the basis of an oral report

submitted to the concerned Police Station. The allegation against

the applicants was that while there was a protest of farmers

happening at a bus stand, when the applicants were confronted as

to whether they were part of the protest, an altercation occurred

with non-applicant No.2, leading to registration of the said offences

against them.

5. Ms Aastha Sharma, learned counsel appearing for the

applicants, submitted that the contents of the oral report leading to

registration of the FIR and the entire documents and statements that

have come on record along with the charge-sheet would show that

none of the ingredients of the alleged offences are made out against

the applicants. She submitted that applicant No.1 was at the

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concerned bus stand to board a bus to reach Pune, where he had

secured employment and that applicant Nos.2 and 3, who happened

to be his parents and applicant No.4, who is his teacher, had come

to the bus stand to see him off. According to the applicants,

non-applicant No.2, who was not even in uniform, suddenly

approached them and questioned as to whether they were part of

the farmers protests that were happening at the bus stand. There

was no reason for the applicants to believe that non-applicant No.2

was a public servant, although he claimed to have been a secret

Police constable. According to the applicants, they did not indulge

in any of the actions alleged against them and that in any case, there

was nothing to show that non-applicant No.2 was indeed a public

servant, who was deterred from performing his duty by the

applicants.

6. Insofar as the other offences are concerned, it was submitted

that the statements of the alleged witnesses recorded during the

course of investigation would show that none of the ingredients of

the other offences were made out against the applicants. Insofar as

the offences punishable under sections 270 and 188 of the IPC, as

also the alleged offences under the provisions of the Epidemic

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Diseases Act, 1897, are concerned, reliance was placed on the

judgment of the Division Bench of this Court in the case of HLA

SHWE and others v. State of Maharashtra through Police Station

Tahsil, Nagpur, reported in 2020 (6) Mh.L.J. (Crl.) 624. It was

submitted that the said judgment covered the position of law

completely in favour of the applicants, thereby demonstrating that

the offences under the said provisions could not have been

established against the applicants at all, in the manner in which

they were registered at the behest of non-applicant No.2. On this

basis, it was submitted that the present application deserved to be

allowed.

7. On the other hand, Mr.Ghodeswar, learned APP appeared

for non-applicant No.1 and submitted that the material brought on

record along with the charge-sheet ought to be perused by this

Court to examine as to whether the ingredients of the offences are

made out against the applicants. The position of law laid down by

this Court in the case of HLA SHWE and others v. State of

Maharashtra through Police Station Tahsil, Nagpur (supra), was not

disputed.

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8. The non-applicant No.2, despite service, chose not to appear

before this Court.

9. Having heard the learned counsel for the rival parties and

upon perusal of the material placed on record, we are of the opinion

that it needs to be examined whether offences punishable under

sections 270 and 188 of the IPC, as also the provisions of the

Epidemic Diseases Act, 1897, could have been registered at all

against the applicants herein.

10. A perusal of the judgment of this Court in the case of HLA

SHWE and others v. State of Maharashtra through Police Station

Tahsil, Nagpur (supra) would show that insofar as section 188 of

the IPC is concerned, after referring to the ingredients of the said

offence and while referring to the position of law laid down by the

Hon'ble Supreme Court in that context, the Division Bench of this

Court held as follows:

"18. Section 188 of the Indian Penal Code deals with disobedience to orders duly promulgated by the public servant.

The offence, as already stated, is allegedly disobedience to the orders duly promulgated by the Collector. Section 195 of the Code lays down that no Court shall take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the Indian Penal Code, except on the complaint in writing to the public servant concerned or of some other public servant to whom he is administratively subordinate. In the present case, there is no

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complaint filed by Collector or his subordinate officer. The Sub- Inspector of Police has filed the charge-sheet. In Daulat Ram v. State of Punjab [AIR 1962 SC 1206], the Hon'ble Supreme Court held that the prosecution under Section 182 of the Indian Penal Code must be on a complaint in writing by the Tahsildar (public servant). In view of absolute bar against the Courts for taking cognizance of the offence punishable under Section 182 of the Indian Penal Code, except in the manner provided by Section 195 of the Code, the said judgment equally applies to the offence under Section 188 also. In the present case, there is no complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate. Therefore, in view of the bar under Section 195(1)(a) of the Code, the learned Magistrate ought not to have taken cognizance of the offence punishable under Section 188 Indian Penal Code on the report submitted by the Sub-Inspector of Police. Therefore, we are of the considered view that the cognizance is taken contrary to the specific bar envisaged under Section 195(1)(a) of the Code. In M.S.Ahlawat v. State of Haryana [2000(1) SCC 278], the Hon'ble Supreme Court considered the provisions prescribed under Section 195 of the Code at length and observed in paragraph 5 as under:

"5. ...Provisions of Section 195 CrPC, 1973 are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section."

19. In C. Muniappan v. State of T.N., [(2010) 9 SCC 567], the Hon'ble Supreme Court observed in para 33 as under:

"33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the pubic servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section195 Cr.P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such a complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."

20. In that view of the matter, no prosecution could have been launched against the applicants under Section 188 of the Indian Penal Code based on a written report submitted by the Police. No F.I.R. could have been registered by the police for an offence

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punishable under Section 188 of the Indian Penal Code. The legislative intention appears to be clear from the language of Section 195(1) of the Code, which prescribes that where an "offence" is committed under Section 188 of the Indian Penal Code, it would be obligatory that the public servant before whom such an "offence" is committed, should file a complaint before the jurisdictional Magistrate either orally or in writing. Hence, registration of an F.I.R. for an offence under Section 188 of Indian Penal Code is not permitted in law at the instance of Police."

11. Perusal of the aforesaid position of law clarified in the above

quoted judgment would show that the FIR for offence punishable

under section 188 of the IPC could not have been registered at all on

oral report of non-applicant No.2 and that therefore, to that extent

the application deserves to be allowed. Insofar as sections 2, 3 and

4 of the Epidemic Diseases Act are concerned, at the most section 3

thereof could have been invoked, which again is relatable to section

188 of the IPC, thereby indicating that offences under the provisions

of the said Act could not have been registered on the oral report of

non-applicant No.2.

12. Insofar as section 270 of the IPC is concerned, the said

offence pertains to an act done, which was likely to spread infection

of disease dangerous to life. In the said judgment in the case of

HLA SHWE and others v. State of Maharashtra through Police

Station Tahsil, Nagpur (supra) in paragraph 14, the Division Bench

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of this Court made observations as regards the ingredients of

sections 269 and 270 of the IPC and in the facts of that case, it was

found that no such offence was even prima facie made out. In the

present case also, a perusal of the oral report submitted by

non-applicant No.2 and statements given by the alleged

witnesses nowhere make out ingredients of section 270 of the IPC

and merely because the applicants were allegedly not wearing

masks, could not lead to registration of offence under section 270

of the IPC.

13. As regards offence punishable under section 353 of the IPC,

we are of the opinion that the said section could have been invoked

in the first place, if there was prima facie material to demonstrate

that the applicants could be said to be aware about non-applicant

No.2 being a public servant. Even as per the statement given by

non-applicant No.2 and the material that has come on record along

with the charge-sheet, it is nowhere stated that non-applicant No.2

was in uniform when he interacted with the applicants. There was

no way in which the applicants could have been aware about the

fact that non-applicant No.2 was a constable. There is also no

allegation that non-applicant No.2 made the applicants aware about

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his status of being a constable (public servant) by showing an

identity card or otherwise. In such circumstances, we are of the

opinion that the basic ingredients of section 353 of the IPC are

found to be missing, inasmuch as the non-applicant No.2 could not

have been perceived as a public servant by the applicants on the

date and time of the incident. Therefore, invoking section 353 of

the IPC was misplaced in the present case.

14. Insofar as sections 332, 504 and 506 read with section 34 of

the IPC are concerned, we have perused the statements given by the

alleged witnesses, who are all Police personnel. None of the

statements or even the oral report submitted by non-applicant No.2

indicate that the ingredients of the aforesaid offences are made out

against the applicants. In fact, in the oral report submitted by

non-applicant No.2 himself, he has stated that the incident was

triggered when a query was put to the applicants as to whether they

were part of the farmers protests at the date and time of the

incident. This indicates that non-applicant No.2 himself was not

sure as to whether the applicants were indulging in the protest,

which had taken place at the date and time of the incident.

Therefore, we are convinced that none of the ingredients of the

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offences alleged against the applicants are made out and that no

purpose would be served by sending this matter for trial.

15. In view of the above, the application is allowed in terms of

prayer clauses-i and i-a, which read as follows.

"i). quash and set aside the FIR No.0351/2020, Dt. 08/12/2020 registered with Non-applicant No.1 Police Station, Nandgaon Khandeshwar, Tq. Nandgaon Khandeshwar, Dist. Amravati, for the offence punishable U/s. 353, 332, 504, 506, 188, 270 R/w 34 of Indian Penal Code and Section 2, 3 and 4 of the Epidemic Disease Act, 1897 (ANNEXURE- "A");

i-a) quash and set aside the Session Case No.24/2022 pending on the file of learned District and Sessions Judge - 2 Amravati which is arising out of Crime No.351/2020 registered with Police Station Nandgaon Khandeshwar, Tq. Nandgaon Khandeshwar, District Amravati for the offences punishable under section 353, 332, 504, 506, 188, 270, R/w 34 of the Indian Penal Code and Sections 2, 3 and 4 of the Epidemic Diseases Act, 1897 (ANNEXURE - "D")."

16. Accordingly, the application is disposed of.

                                   (VALMIKI SA MENEZES, J)                         (MANISH PITALE, J)




Signed By:GHANSHYAM S
KHUNTE


Signing Date:12.08.2022 10:39
                          KHUNTE