Gujarat High Court
Suresh Ramanbhai Patel vs State Of Gujarat on 29 October, 2021
Bench: Gita Gopi
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5434 of 2017
With
R/CRIMINAL MISC. APPLICATION NO. 13204 of 2016
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2021
In
R/CRIMINAL MISC. APPLICATION NO. 13204 of 2016
With
R/CRIMINAL MISC. APPLICATION NO. 6359 of 2017
With
R/CRIMINAL MISC. APPLICATION NO. 13356 of 2020
With
R/CRIMINAL MISC. APPLICATION NO. 8071 of 2020
With
R/CRIMINAL MISC. APPLICATION NO. 12176 of 2020
With
R/CRIMINAL MISC. APPLICATION NO. 12830 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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SURESH RAMANBHAI PATEL & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
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 PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
Page 1 of 9
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R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/10/2021
ORAL JUDGMENT
1. All these applications involve identical questions on law and
hence, they are decided by this common judgment.
2. RULE. Learned Additional Public Prosecutor waives service of
notice of rule on behalf of respondent State.
3. The short question that has come up for consideration of this Court
in this group of petitions is whether a written complaint by the public
servant concerned is necessary for a Court to take cognizance of any
offence punishable under Sections 172 to 188 (both inclusive) of the
Indian Penal Code.
4. For the purpose of the present applications, the relevant particulars
are shown hereunder in a tabular form:
Sr. Particulars Challenge
No.
1 Criminal Misc. Application First Information Report bearing C.R. No.
No. 5434 of 2017 II-35 of 2017 registered with Pardi Police
& Station, Pardi, District : Valsad under
Criminal Misc. Application Sections 186, 188 and 114 of IPC.
No. 6359 of 2017
2 Criminal Misc. Application FIR No.11190004200973 registered with
No. 13356 of 2020 Gadhada Police Station under Section
188 of IPC.
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
3 Criminal Misc. Application FIR No.11218005200159 registered with
No. 8071 of 2020 Navi Bandar Marine Police Station,
Porbandar under Sections 188, 186, 504,
506(2) and 114 of IPC; Section 135 of
Gujarat Police Act and Section 51(a) of
the Disaster Management Act.
4 Criminal Misc. Application FIR No.11198025200327 registered with
No. 12176 of 2020 Jesar Police Station under Sections 188,
186, 269, 270, 504, 506(2) and 114 of
IPC and Section 135 of Gujarat Police
Act.
5 Criminal Misc. Application C.R. No. I - Part 'A' 11203024201744
No. 12830 of 2020 registered with 'B' Division Police
Station, Junagadh under Sections 188
and 269 of IPC.
6 Criminal Misc. Application Criminal Case No.5542 of 2015 pending
No. 13204 of 2016 before the Court of learned 10th (Adhoc)
Additional Civil Judge & JMFC,
Ahmedabad (Rural) arising out of C.R.
No. II-194 of 2015 registered with Bopal
Police Station, Ahmedabad Rural under
Sections 186, 188 and 189 of IPC.
5. The facts, in a nutshell, in each of the cases are as under;
CRIMINAL MISC. APPLICATION No.5434 OF 2017 :
The applicants in this case are members of a political party. On
16.02.2017 the applicants conducted a program in the nature of a
demonstration against the policies of the Government. It is the say of the
applicants that though necessary permission had been granted by the
authority concerned apropos the program, the police authority had
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
restrained them from conducting the demonstration. In connection with
the ruckus that ensued, the impugned First Information Report being C.R.
No. II-35 of 2017 came to be registered with Pardi Police Station, District
: Valsad for offences punishable under Sections 186, 188 and 114 of
Indian Penal Code. The applicants in this case are original accused Nos.2
to 4 in the impugned complaint.
CRIMINAL MISC. APPLICATION No.6359 OF 2017 :
The applicant in this case is original accused No.1 in the First
Information Report being C.R. No. II-35 of 2017 registered with Pardi
Police Station, District : Valsad for offences punishable under Sections
186, 188 and 114 of Indian Penal Code and which is subject matter of
Criminal Misc. Application No.5434 of 2017.
CRIMINAL MISC. APPLICATION No. 13356 OF 2020 :
It is the say of the applicants that they are living an ascetic life and
reside in the premises of Temples belonging to the Swaminarayan Sect.
The applicants are mainly engaged in activity of giving sermons at
different places. On 20.08.2020 the impugned complaint being FIR
No.11190004200973 was registered before Gadhada Police Station,
Botad for offence punishable under Section 188 of IPC inter alia alleging
that the applicants had conducted some programs in breach of the
Notification issued by the District Magistrate in relation to ban on public
gathering on account of the pandemic.
CRIMINAL MISC. APPLICATION No. 8071 OF 2020 :
The applicant in this case is affiliated with a particular political
party and is was serving as a Sarpanch at the relevant point of time. On
30.04.2020 the impugned complaint being C.R. I - Part-A
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
No.11218005200159 was registered with Navi Bandar Marine Police
Station, Porbandar for offences punishable under Sections 188, 186, 504,
506(2) and 114 of IPC, Section 135 of Gujarat Police Act and Section
51(a) of the Disaster Management Act inter alia alleging that while the
complainant and other police personnel were on patrolling duty, some
persons were found to committing breach of the Notification issued by
the District Magistrate in relation to the pandemic. It is alleged that the
applicant, in connivance with some unknown persons, committed breach
of the Notification and also attempted to cause bodily harm to the police
party with certain weapons.
CRIMINAL MISC. APPLICATION No. 12176 OF 2020 :
It is the case of the applicants herein that on 20.07.2020 during the
noon hours some police constables of Jesar Police Station, who were in
civil dress, were issuing receipts towards the fines collected for alleged
breach of the Notification of District Magistrate in relation to the
pandemic. The applicants herein were also asked to pay fine for allegedly
committing breach of the Notification. It is the further case of the
applicants that when they asked the police constables to issue receipts in
the proper form and duly stamped, the police constables began to
misbehave with the applicants and ultimately, the impugned complaint
being FIR No.11198025200327 came to be registered against the
applicants with Jesar Police Station, Bhavnagar for offences punishable
under Sections 188, 186, 269, 270, 504, 506(2) and 114 of IPC and
Section 135 of the Gujarat Police Act.
CRIMINAL MISC. APPLICATION No. 12830 OF 2020 :
The applicants herein are affiliated with a particular political party.
It is alleged that on 17.06.2020 while the police were on patrolling duty,
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
the applicants herein were found to be carrying out a rally without
obtaining any permission in that regard and also in breach of the
Notification issued by the District Magistrate in relation to the pandemic.
Therefore, the impugned complaint being FIR No.11203024201744 was
registered with 'B' Division Police Station, Junagadh for offences
punishable under Sections 188 and 269 of IPC against the applicants.
CRIMINAL MISC. APPLICATION No. 13204 OF 2020 :
The applicants herein were arraigned as accused in connection with
some family dispute between the daughter-in-law and son of applicant
No.1. The said dispute came to be settled between the parties with mutual
consent. It is the say of the applicants that by virtue of the criminal
complaint lodged by the daughter-in-law of applicant No.2, the son of
applicant No.2 came to be arrested. It is alleged that he was manhandled
by the police and was abused as if he was a hardened criminal. The
applicant No.2 wanted to record the abusive treatment of the police,
which enraged the police constable on duty and ultimately, led to the
filing of the impugned complaint being C.R. No. II-194 of 2015 with
Bopal Police Station, Ahmedabad (Rural) for offences punishable under
Sections 186, 188 and 189 of IPC.
6. Heard learned advocates on both the sides. In all these cases, the
complainant is the police authority and offence under Section 188 along
with some other sections of the Indian Penal Code have been invoked.
7. It is a well settled law that the invocation of Section 188 of IPC is
subject to the provisions of Section 195 Cr.P.C. For our purpose, clause
(a) of sub-section (1) of Section 195 is relevant. It reads thus:
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
"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;....."
7.1 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.
8. 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
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
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."
9. 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.
10. In the present cases, apart from invocation of Sections 172 to 188
of IPC, offences under other Sections of the Indian Penal Code as also the
Gujarat Police Act and Disaster Management Act 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 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
R/CR.MA/5434/2017 JUDGMENT DATED: 29/10/2021
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.
11. For the foregoing reasons, all the applications are allowed. The
impugned First Information Reports in every matters, as also the
consequential proceedings arising out of the impugned complaints, are
quashed and set aside. Consequently, the interim application also stands
disposed of. Rule is made absolute.
(GITA GOPI, J)
PRAVIN KARUNAN
