Gujarat High Court
Lilaben Danjibhai Makwana ... vs State Of Gujarat on 17 November, 2021
Bench: Gita Gopi
R/CR.MA/6759/2018 JUDGMENT DATED: 17/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 6759 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
LILABEN DANJIBHAI MAKWANA (PATEL) & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
================================================================
Appearance:
MR GAURAV H PANDYA(9271) for the Applicant(s) No. 1,2
MR BM MANGUKIYA(437) for the Applicant(s) No. 1,2,3
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1,2,3
MR SHREY H DAVE(8444) for the Applicant(s) No. 1,2
MR HS MUNSHAW (495) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 17/11/2021
ORAL JUDGMENT
1. RULE. Learned advocates waive service of notice of rule on behalf
of the respective respondents.
R/CR.MA/6759/2018 JUDGMENT DATED: 17/11/2021
2. By way of this application, the applicants have prayed to quash and
set aside the impugned First Information Report bearing C.R. No. I - 59
of 2018 registered with Neelambaug Police Station under Sections 186,
189, 341, 504, 506(2) and 114 of IPC and all consequential proceedings
initiated in pursuance thereof.
3. The petitioner Nos.1 and 2 are wife and husband while petitioner
No.3 is their daughter. It is the say of the petitioners that petitioner No.1
is working as an "Asha Worker" and was being paid incentive every
month. However, with effect from 01.05.2017, the incentive which was
being given to petitioner No.1 was stopped abruptly. The petitioner No.1
addressed several representations to the authority concerned requesting to
pay incentive for the work done by her as "Asha Worker"; however, no
heed was paid to any of her representations. It is the further say of the
petitioners that on 06.03.2018 the petitioner No.1 received a phone call
from respondent No.2 asking her to visit the Office in connection with the
payment of incentive.
3.1 It is alleged that when the petitioner No.1 visited the Office,
respondent No.2 threatened her and asked her to refrain from making
representations in connection with the payment of incentive. When the
petitioners insisted for making such payment, the respondent No.2 filed
the impugned complaint against the petitioners.
4. Heard learned advocates on both the sides. In this case, the
complainant is a public authority and the offence under Section 186 along
with other sections of the Indian Penal Code have been invoked. It is a
well settled law that the invocation of Section 186 of IPC is subject to the
R/CR.MA/6759/2018 JUDGMENT DATED: 17/11/2021
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 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;....."
4.1 A plain reading of the above provision shows that it bars the Court
from taking cognizance of any offence punishable under Sections 172 to
188 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 case of contempt of the lawful authority of public servant. The
legislative intent behind such a provision is that an individual should not
face criminal prosecution instituted upon insufficient grounds by a person
actuated by malice. This provision has been carved out as an exception to
the general rule contained under Section 190 Cr.P.C. that any person can
set the law in motion by making a complaint, as it prohibits the Court
from taking cognizance of certain offences unless and until a complaint
has been made by some particular authority or person.
R/CR.MA/6759/2018 JUDGMENT DATED: 17/11/2021
5. In the case of Daulat Ram v. State of Punjab, AIR 1962 SC 1206,
the Apex Court considered the nature of the provision of Section 195
Cr.P.C. 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 public servant concerned, the Tahsildar, had not filed any
complaint. The Court held as under:
"4. ....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.
5. The appeal is, therefore, allowed and the conviction of the
appellant and the sentence passed on him are set aside."
6. Considering the principle rendered in Daulat Ram's case (supra),
the law can be summarised to the effect that there must be a complaint by
the public servant whose lawful order has not been complied with and
such complaint must be in writing. The provisions of Section 195 Cr.P.C.
are mandatory in nature and the non-compliance thereof would vitiate the
prosecution and all other consequential orders. The Court cannot assume
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.
7. In the present case, apart from invocation of Section 186 of IPC,
offences under other Sections of the Indian Penal Code have been
invoked. The test whether there is non-compliance of the provision of
Section 195 Cr.P.C. or not is whether the facts disclose primarily and
essentially an offence for which a complaint of the Court or of a public
R/CR.MA/6759/2018 JUDGMENT DATED: 17/11/2021
servant is required. The provision of Section 195 Cr.P.C. 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.P.C. In the cases on hand, the facts
suggest that the offences, other than one punishable under Sections 172 to
188 of IPC, are inseparable and are related to the offence for which a
complaint of the Court or of a public servant is required or is mandatory.
In the present cases, admittedly, no such complaint has been given and
thus, the provision of Section 195 Cr.P.C. have not been complied with.
Under the circumstances, the impugned complaints deserve to be quashed
and set aside on this ground alone.
8. For the foregoing reasons, the application is allowed. The
impugned First Information Report bearing C.R. No. I - 59 of 2018
registered with Neelambaug Police Station as also the consequential
proceedings arising out of the impugned complaint is quashed and set
aside. Rule is made absolute.
(GITA GOPI, J)
PRAVIN KARUNAN
