Gujarat High Court
Vitthalbhai Dhanjibhai Patel vs State Of Gujarat on 29 October, 2021
Bench: Gita Gopi
R/CR.MA/5736/2020 JUDGMENT DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5736 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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VITTHALBHAI DHANJIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR APURVA R KAPADIA (5012) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 29/10/2021
ORAL JUDGMENT
1. Rule. Learned APP appears and waives service of notice of rule on
behalf of both the respondents.
2. By way of this application filed under Section 482 of the Code of
R/CR.MA/5736/2020 JUDGMENT DATED: 29/10/2021
Criminal Procedure, the applicant, original accused, has prayed to quash
and set aside the complaint being FIR No.11214020200363 registered
with Kamrej Police Station under Sections 186, 504 and 114 of IPC and
all consequential proceedings initiated in pursuance thereof.
3. The facts in brief are as under:
The respondent No.2 herein filed the impugned complaint inter alia
alleging that on 16.03.2020 when he had visited the farm of the applicant
bearing Block No.356 and 357 at around 1400 hrs. for installing 7.5 HP
electric connection, two persons were present at the site. It is alleged that
the respondent-complainant spoke to the applicant on phone under the
instructions of the two persons and was, thereafter, not permitted to
install the electric connection and thus, had committed the offence
punishable under Sections 186, 504 and 114 of IPC.
4. Heard learned advocates on both the sides. In this case, offence
under Sections 186 and 504 read with 114 of the Indian Penal Code has
been invoked. It is a well settled law that the invocation of Section 186 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:
"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
R/CR.MA/5736/2020 JUDGMENT DATED: 29/10/2021
(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.
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
R/CR.MA/5736/2020 JUDGMENT DATED: 29/10/2021
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. Under the circumstances, the impugned complaint deserves
to be quashed and set aside on this ground alone.
7. For the foregoing reasons, the application is allowed. The
impugned complaint being FIR No.11214020200363 registered with
Kamrej Police Station and all the consequential proceedings initiated in
pursuance thereof are quashed and set aside. Rule is made absolute.
(GITA GOPI, J)
PRAVIN KARUNAN
