Gunavantbhai Hirabhai Miyatara vs State Of Gujarat
2021 Latest Caselaw 7683 Guj

     R/CR.MA/9530/2021                                  ORDER DATED: 05/07/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/CRIMINAL MISC.APPLICATION NO. 9530 of 2021

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            GUNAVANTBHAI HIRABHAI MIYATARA
                         Versus
                   STATE OF GUJARAT
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Appearance:
MR HARNISH V DARJI(3705) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS. MAITHILI MEHTA ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 05/07/2021

                                ORAL ORDER

Heard learned Advocate Shri Harnish V. Darji for the applicant and learned Additional Public Prosecutor Ms. Maitili Mehta for the respondent-State.

2. By way of this application, the applicant prays for quashing of the complaint registered as C.R. No. 11203037210241 of 2021, with Manavadar Police Station, Junagadh, for the offences punishable under Sections 332, 186, 294(b) and 114 of the Indian Penal Code.

3. Learned Advocate Shri Darji, draws the attention of this Court to Section 195 of the Code of Criminal Procedure and submits that Section 195 interialia requires that for any offence punishable under Sections 172 to 188 of the Indian Penal Code, cognisance shall not be taken by the Magistrate unless the complaint is in writing of the public servant concerned or of some other public servant to whom concerned public servant is administratively subordinate before the

R/CR.MA/9530/2021 ORDER DATED: 05/07/2021

Court concerned.

3.1 Learned Advocate Shri Darji has also drawn the attention of this Court to judgment of this Court, wherein this Court (Coram : Shri J.B Pardiwala,J.) in the case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat and Anr 2018(1) G.L.H. 63 has interalia held that where the offences alleged in the complaint include the offences other than offences mentioned in Section 195 of the Criminal Procedure code then also if the offences are said to be committed in the course of the same transaction, then the offences cannot be split. In this regard learned Advocate has submitted that the allegations of the offence punishable under Section 186 of the Indian Penal Code which is with regard to the obstructing public servant in discharge of public information and offence punishable under Section 332 i.e voluntarily causing hurt to deter public servant from his duty and offence punishable under Section 294 with regard to reciting or uttering obscene words etc. in the public place, where part of the same transaction, alleged in the complaint and therefore, the other sections namely offences punishable under Sections 330, 294 (b) cannot be split from offence punishable under Section 186.

3.2 As such learned Advocate also submitted that even on reading the complaint as a whole, there is nothing in the complaint to show that the applicant had obstructed the public servant in discharge of his public function or the applicant had voluntarily caused hurt to the public servant to deter from doing his duty, more particularly, since the allegations in the complaint are with regard to the applicant

R/CR.MA/9530/2021 ORDER DATED: 05/07/2021

allegedly having an altercation with the public servant for not providing the information as sought by the applicant under the R.T.I Act. According to the learned Advocate the same would not fall under the purview of the allegations of obstructing or deterring a public servant from doing his duty. Thus, learned Advocate has submitted that, this Court may interfere with this impugned complaint.

4. As against the same, learned Additional Public Prosecutor has strongly opposed this application by submitting that there are grave allegations against the present applicant as made in the complaint and since they are with regard to the threatening and obstructing of a public servant, this Court may not interfere at the threshhold.

5. Heard learned Advocate for the parties.

6. Considering the submissions made by learned Advocate for the applicant, prima facie it appears to this Court that while there is a clear bar as found in Section 195 of the Criminal Procedure Code with regard to an offence punishable under Section 186 of the Indian Penal Code ; that a complaint dealing with offence punishable under the said Section is to be made to the Court in writing by the public servant or a subordinate of such public servant but at the same time even the other offences more particularly offence punishable under Section 332 of the IPC, appears to be part of the same transaction and, hence, for the purpose of investigation, it would not be possible to split both the offences. Prima facie, this Court is also of the opinion that the observations of this Court in Govardhankumar Thakoredas

R/CR.MA/9530/2021 ORDER DATED: 05/07/2021

Asrani (supra) more particularly para 46, cover the legal aspects as submitted by learned Advocate Shri Darji.

7. Para 46 is reproduced hereinbelow for better appreciation:

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 IPPC 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."

8. Considering the same, this Court is of the opinion that a prima facie case is made out for interference, hence Notice returnable on 26.07.2021. Interim relief in terms of para 10 (C ) is granted.

(NIKHIL S. KARIEL,J) MARY VADAKKAN