Shahidkhan Vahidkhan Pathan vs State Of Gujarat
2021 Latest Caselaw 5888 Guj

R/CR.MA/17473/2020                                        CAV JUDGMENT DATED: 14/06/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 17473 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

========================================================

1 Whether Reporters of Local Papers may be allowed to see the No judgment ?

2     To be referred to the Reporter or not ?                           No

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

4     Whether this case involves a substantial question of law as to the No

interpretation of the Constitution of India or any order made thereunder ?

======================================================== SHAHIDKHAN VAHIDKHAN PATHAN Versus STATE OF GUJARAT ======================================================== == Appearance:

MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1,2,3

MS MOXA THAKKAR ADDITIONAL PUBLIC PROSECUTOR(2) for the

========================================================

CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

Date : 14/06/2021

CAV JUDGMENT

1. Heard learned Advocate Shri Zubin Bharda on behalf of the

applicants and learned APP Ms. Moxa Thakkar on behalf of the respondent

no.1- State.

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2. Rule returnable forthwith. Learned APP waives service of rule on

behalf of the respondent no.1-State.

3. With consent of the parties the application is taken up for final

hearing.

4. Facts in brief can be summarized as under:

4.1 The applicants pray for quashing of Criminal Complaint being FIR

No. 1121900320036 of 2020 registered with Subir Police Station, District:

Dang for the offences punishable under Sections 188 and 114 of the

Indian Penal Code.

4.2 The allegations levelled in the complaint by the complainant who

happens to be a Police Constable is that a truck having registration no. MH-

41-G-7200 had been stopped at Shigana chekpost and upon asking of the

necessary permits, the driver had informed that he was carrying potato from

Vyara to Maharashtrat. It was also mentioned that on the windshield of the

truck a certificate by Motor Vehicle Inspector stating that the truck was used

for transporting essential items including grains and vegetable. On checking

of the truck, it was found that along with the other items the truck was

carrying Pan Masala worth Rs. 13,96,000/ which was seized. The complaint

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impugned came to be registered inter alia alleging that the accused being a

driver and the cleaner of the truck and the person who had supplied the

goods in question had violated the notification no. MAG/Vashi-2433-2463

dated 03.05.2020 issued by the District Magistrate, Dang at Ahwa.

5. Learned Advocate Shri Bharda on behalf of the applicants being

accused No. 1 to 3 has challenged the complaint by submitting that the

allegation in the complaint is of committing offence punishable under

Section 188 of the Indian Penal Code and whereas according to the learned

Advocate Section 195 of the Code of Criminal Procedure clearly states that

the Court can take cognizance of a complaint for offence punishable under

Sections 172 to 188 ( both including) of the Indian Penal Code only upon a

complaint in writing of the public servant concerned or of some other

public servant to whom he is administratively subordinate and according to

the learned Advocate since the machinery of criminal justice for the offence

punishable under Section 188 of Indian Penal Code has been set into

motion by filing FIR instead of a complaint in writing before the Magistrate,

therefore FIR is not maintainable and thus it is required to be quashed

by this Court.

6. As against the same learned APP has submitted that Section 195 of

Code of Criminal Procedure is with regard to the stage of cognizance of the

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offence and whereas since even the investigation is not stated to be

completed therefore the bar of Section 195 of the Code of Criminal

Procedure would not come into play at this stage. Learned APP has further

submitted that allegations levelled against the present applicants are serious

and since charge-sheet is not filed by the investigating agency therefore this

Court may not interfere at this stage.

7. Learned Advocates for the parties have not submitted anything

further.

8. The only issue for consideration of this Court is whether the present

complaint in its present form would be maintainable or not.

Since the learned Advocate for the applicants has contended that the

present complaint would be hit by the bar of Section 195 of the Code of

Criminal Procedure, reproduction of the same herein-below would be

beneficial. Section 195 of the Code of Criminal Procedure reads as under::

"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 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;

(b) (i) of any offence punishable under any of the following sections

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of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause

(ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause

(a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

8.1. It can be seen that Section 195 creates a bar of taking cognizance by

any Court for offence punishable under Sections 172 to 188 of Indian Penal

Code, if the complaint in question is not submitted in writing by the public

servant concerned or some other public servant to whom he is

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administratively subordinate. Sections 188 of Indian Penal Code is with

regard to disobedience to order duly promulgated by public servant. Section

188 reads as thus:

"188. Disobedience to order duly promulgated by public servant.-- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both:

and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Explanation.--It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.

Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section."

9. In case of C. Muniappan & Ors vs State Of Tamil Nadu reported in

2010 (9) SCC 67 the Hon'ble Supreme Court has stated as thus at Paras

20,21,22,23,24 and 25:

"20. Section 195(a)(i) Cr.PC bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a

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case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.PC like sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119).

21. The test of whether there is evasion or non-compliance of Section 195 Cr.PC or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq & Ors. v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik & Ors v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.PC. Thus, cognizance of such an offence cannot be taken by mis-describing it or by putting a wrong label on it.

22. In M.S. Ahlawat v. State of Haryana & Anr., AIR 2000 SC 168, this Court considered the matter at length and held as under :

"....Provisions of Section 195 CrPC 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." (Emphasis added)

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23. In Sachida Nand Singh & Anr. v. State of Bihar & Anr., (1998) 2 SCC 493, this Court while dealing with this issue observed as under :

"7. ..Section 190 of the Code empowers "any magistrate of the first class" to take cognizance of "any offence" upon receiving a complaint, or police report or information or upon his own knowledge. Section 195 restricts such general powers of the magistrate, and the general right of a person to move the court with a complaint to that extent curtailed. It is a well- recognised canon of interpretation that provision curbing the general jurisdiction of the court must normally receive strict interpretation unless the statute or the context requires otherwise." (Emphasis supplied)

24. In Daulat Ram v. State of Punjab, AIR 1962 SC 1206, this Court considered the nature of the provisions of Section 195 Cr.PC. In the said case, cognizance had been taken on the police report by the Magistrate and the appellant therein had been tried and convicted, though the concerned public servant, the Tahsildar had not filed any complaint. This Court held as under :

"The cognizance of the case was therefore wrongly assumed by the court `without the complaint in writing of the public servant, namely, the Tahsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained. The appeal is, therefore, allowed and the conviction of the appellant and the sentence passed on him are set aside." (Emphasis added)

25 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 Section 195 Cr.PC 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 complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."

9.1 Thus the law with regard to Section 195 of the Code of Criminal

Procedure has been laid down by the Hon'ble Supreme Court in the above-

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referred judgement which requires that the complaint must be by the public

servant whose lawful order has not been complied with and that the

complaint must be in writing. The Hon'ble Supreme Court has held that

provisions of section 195 are mandatory.

10. It would also be beneficial to refer to a decision of the Supreme

Court in case of Saloni Arora vs. State ( NCT of Delhi) reported in 2017 ( 3)

SCC 286. Para 9, 10 and 11of the said decision read as thus:

"9. As rightly pointed out by the learned counsel for the parties on the strength of law laid down by this Court in the case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206) that in order to prosecute an accused for an offence punishable under Section 182 IPC, it is mandatory to follow the procedure prescribed under Section 195 of the Code else such action is rendered void ab initio.

10. It is apposite to reproduce the law laid down by this Court in the case of Daulat Ram (supra) which reads as under:

"There is an absolute bar against the Court taking seisin of the case under S.182 I.P.C. except in the manner provided by S.195 Crl.P.C. Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under S.182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar, as the public servant concerned under S.182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under S.182 without the Tehsildar's complaint in writing is, therefore, without jurisdiction ab initio."

(Emphasis supplied)

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11. It is not in dispute that in this case, the prosecution while initiating the action against the appellant did not take recourse to the procedure prescribed under Section 195 of the Code. It is for this reason, in our considered opinion, the action taken by the prosecution against the appellant insofar as it relates to the offence under Section 182 IPC is concerned, is rendered void ab initio being against the law laid down in the case of Daulat Ram (supra) quoted above."

11. It would be further pertinent to mention that in the instant impugned

complaint the only offence that is alleged is under Section 188 of the Indian

Penal Code. Thus in view of the ratio laid down by the Supreme Court in

Saloni Arora vs. State ( NCT of Delhi) (supra) it appears that since the

procedure prescribed under Section 195 of the Code had not been followed,

the complaint against the applicants herein is rendered void ab initio.

12. The law with regard to exercise of extraordinary powers of this Court

in Section 482 of the Code of Criminal Procedure has been enumerated by

the Supreme Court in case of State of Haryana vers Bhajan lal and Anr.

reported in 1992 SCC Supp1- 335. Para 102 of the said judgement would be

beneficial for the purpose of present application:

"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 decisions relating to the exercise of the extraordinary power under Article 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

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an exhaustive list or myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any of offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(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 malafide and/or where the proceedings 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."

12.1 The Supreme Court has set out categories of cases by way of

illustration wherein power could be exercised as reproduced hereinabove

and whereas in the considered opinion of this Court category no.(6), with

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regard to express legal bar engrafted in any of the provisions of the Code

with regard to institution and continuance of the proceedings, would be

applicable with the case on hand since as clearly seen from the discussion

hereinabove, Section 195 of the Code of Criminal Procedure requires that

for taking cognizance for offence punishable under Section 172 to 188 of

the Indian Penal Code, the complaint is to be in writing by public servant or

any person subordinate to public servant. In the instant case the complaint

is in the form of First Information Report and thus the present FIR would

be hit by the bar of Section 195 of the Code of Criminal Procedure.

13. In view of the above and having regard to the nature of allegations

levelled against the applicants in the complaint, inspite of the fact that

charge-sheet has not been filed, this Court is inclined to interfere, since the

complaint is clearly hit by embargo of Section 195 of the Code of Criminal

Procedure. However since investigation is not complete, appropriate liberty

is required to be reserved in favour of the respondent no.1- State to initiate

proceedings by following procedure prescribed under the law and for the

purpose of initiating fresh proceedings if thought fit in accordance with law

the same materials upon which the complaint has been filed and the

materials which have been collected during the investigation may be used.

14. In view of the discussions, findings and conclusion hereinabove the

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present applicant succeeds and impugned complaint being FIR No.

1121900320036 of 2020 registered with Subir Police Station, District: Dang

for the offences punishable under Sections 188 and 114 of the Indian

Penal Code.is hereby quashed reserving liberty as aforesaid.

15. It is clarified that it shall be open to the State to initiate proceedings

afresh against the applicants herein by following the procedure as prescribed

under Section 195 of the Code of Criminal Procedure.

With these observations application is disposed of as allowed. Rule

is made absolute.

sd/-

(NIKHIL S. KARIEL,J)

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