Zala Kirtisinh Kapursinh vs State Of Gujarat
2021 Latest Caselaw 16755 Guj

     R/CR.MA/31928/2016                                  ORDER DATED: 26/10/2021



      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC. APPLICATION NO. 31928 of 2016

=============================================
                ZALA KIRTISINH KAPURSINH & 12 other(s)
                                Versus
                    STATE OF GUJARAT & 1 other(s)
=============================================
Appearance:
MR. YOGENDRA THAKORE(3975) for the Applicant(s) No.
1,10,11,12,13,2,3,4,5,6,7,8,9
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
RULE UNSERVED(68) for the Respondent(s) No. 2
=============================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 26/10/2021

                                   ORAL ORDER

1. The prayer is made to exercise inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R.-I No.207 of 2016 registered with Mehsana City 'A' Division Police Station, Dist.: Mehsana for offfences punishable under sections 143, 186, 447, 120(B) and 427 of the IPC and the proceedings initiated pursuant thereto.

2. The applicants state that the complaint is false and bogus and is filed with a view to abuse the criminal machinery against the applicants. It is the say that the applicant no.1 is an Advocate by profession and President of Mehsana District Committee of a national party. The applicant no.2 is also an Advocate by profession and a corporator, and applicant no.4 is the President of

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

Mehsana District Pancyayat. In all 13 applicants approached this Court. The applicants submit that they had joined rally called 'Jan Aakrosh Rally', which was organized in Mehasna district on 27.11.2016 and during this rally the applicants and other persons were detained by the police authorities for a period of two hours and thereafter were released.

2.1 The applicants state that after the release, the investigating officer came up with a case that about 20:40 hours, the applicants and 40 - 50 other persons had damaged the name plate attached in front of the 'Varenda' of Suvidha Centre belonging to Jaishreeben, Member of Parliament, from a national party. Thereafter, respondent no.2, who happens to be Police Sub-Inspector had lodged the impugned FIR before the Mehsana City 'A' Division Police Station, Dist.: Mehsana.

2.2 It is stated by the applicants that bare reading of the complaint shows that no offence is constituted against the present applicants. The alleged name plate, which is stated to be fixed on the 'Varenda' was not at all damaged by the applicants or any of the members who were joined the rally and the FIR is filed with ulterior motive to gain political mileage.

3. Mr. Thakore submitted that the FIR is lodged invoking Sections 143, 186, 447, 120(B) and 427 of the IPC. Relying on the provisions of Section 195 Cr.P.C., Mr.

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

Thakore submitted that since Section 186 of IPC is invoked in the matter, the Court would be precluded from taking cognizance of the offence and if the charge-sheet is filed, the Court cannot take cognizance in view of the embargo of power of the Court and to substantiate his submission, Mr. Thakore relied on the judgment of this Court in case of Govardhankumar Thakoredas Asrani Vs. State of Gujarat And Ors., reported in 2018 (1) G.L.H. 63.

4. Countering the said fact, learned APP Mr. Pranav Trivedi relying on the report of the police dated 24.10.2021, submitted that there are evidence of presence of the applicants at the place of incident and damage caused to the name plate attached in front of the 'Varenda' of Suvidha Centre. He stated that, there would not be any cause for not taking cognizance of the matter by the trial Court, since apart from Section 186 IPC, sections 143, 447, 120(B) and 427 have been invoked. He stated that section 195 Cr.P.C. would not prohibit the investigation of the FIR which discloses cognizable offence and thus states that nothing stops the Court from filing a complaint for the offences on the basis of the FIR and material collected during the investigation.

5. Heard Mr. Yogendra Thakore, learned advocate for the applicants and Mr. Pranav Trivedi, learned APP for the respondent State and perused the material on

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

record. In case of Smt. Nirmalaben Arvindbhai Itwala Vs. Kalavatiben natvarlal Sidhwawala, reported in 1997 (2) G.L.H. 349, this Court referring to the provisions of Section 195 Cr.P.C. has observed that the Court is precluded from taking cognizance for the offences mentioned in Section 195(1) of the Cr.P.C. It has been held that even if the charge-sheet is filed after investigation by the Police in such offences, the Court cannot take the cognizance of the offences in view of the embargo on the power of the Court to take cognizance; and it is also a priori that the police too cannot take cognizance of the F.I.R. observing that the filing of the charge-sheet would remain only a piece of paper on which no action can be taken by the Court.

5.1. The Hon'ble Supreme Court while dealing with the provisions of Section 195 Cr.P.C. in Saloni Arora Vs. State (Govt. Of NCT of Delhi), reported in 2017 (0) AIJEL-SC 59615 referring to the case of Daulat Ram Vs. State of Punjab reported in AIR 1962 SC 1206, has observed in para-11 as under:

"11. 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

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

provided by S.195 Cr.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)

6. The ratio laid down in case of Daulat Ram Vs. State of Punjab (supra) and the cases referred hereinabove, vis-a-vis the law does not permit taking cognizance of an offence under Section 186 of the IPC unless there is a complaint in writing by a competent

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

public servant before the Court. But at the same time, absence of complaint under Section 195 Cr.P.C. does not falsify the genesis of the prosecution case, though non- compliance of the mandatory provision of section 195 Cr.P.C. vitiate the prosecution and all other consequential orders; and the Court cannot assume the cognizance of the case without such complaint and in absence of complaint the trial and conviction would be void ab initio being without jurisdiction.

7. Section, which invoked in the present case on hand apart from Section 186 IPC are sections 143, 447, 120(B) and 427. In case of State of Punjab Vs. Raj Singh & Anr., reported in 1998 Crl. L.J. 1104, the Supreme Court took the view as under:

"We are unable to sustain the impugned order of the High Court quashing the F.I.R. lodged against the respondents alleging commission of offences under Sections 467 and 468 I.P.C. by Chem in course of the proceeding of a civil suit, on the ground that Section 195 (1) (b) (ii) Cr.P.C. prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 Cr.P.C. it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

190(1) Cr. P.C.; and it has nothing to do with the statutory power of the police to investigate into an F.I.R. which discloses a cognisable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195(1) (b) Cr. P. C. , but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down tin section 340 Cr. P.C. The judgment of this Court in Gopal Krishna Menon and Anr. Vs. D. Raja Reddy [AIR 1983 SC 1053], on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a

R/CR.MA/31928/2016 ORDER DATED: 26/10/2021

money receipt produced in the Civil Court and hence it was held that the Court could not take cognizance on such a complaint in view of Section 195 Cr. P. C. "

8. Thus, taking the nature of allegation and the provisions of Section 195 Cr.P.C., the FIR should be quashed, but since nothing can restrict the Court from taking complaint to be registered towards the offence made in the FIR, the State would be at liberty to initiate fresh proceedings by following the procedure prescribed by law, thus so far the investigation and the materials collected during the course of investigation, cannot be considered as invalid. The same material and evidence as collected in furtherance of the FIR would be considered and fresh proceedings can be initiated against the applicants by following the procedure prescribed by law. The Court below can take into consideration Section 473 of Cr.P.C.

9. In the result, the petition is allowed. The impugned FIR being C.R.-I No.207 of 2016 registered with Mehsana City 'A' Division Police Station, Dist.: Mehsana and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicants. Rule is made absolute. Direct service is permitted.

(GITA GOPI, J.) Pankaj