Gujarat High Court

Vishal Meghjibhai Dhameliya vs State Of Gujarat on 8 July, 2022

Bench: Nirzar S. Desai

    R/CR.MA/15928/2017                            JUDGMENT DATED: 08/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 15928 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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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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                  VISHAL MEGHJIBHAI DHAMELIYA & 7 other(s)
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
GAURAV H PANDYA(9271) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MR BM MANGUKIYA(437) for the Applicant(s) No. 1,2,3,4,5,6,7,8
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1,2,3,4,5,6,7,8
NOTICE SERVED for the Respondent(s) No. 2
MS. M. D. MEHTA, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 08/07/2022

                             ORAL JUDGMENT

1. By way of the present application under Section 482 of the

Code of Criminal Procedure, 1973 (for short, the 'Code'), the

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petitioners have prayed for quashing and setting aside the FIR

being C.R.No.I-69 of 2016 registered with Ghogha Road

Police Station, District:- Bhavnagar for the offences

punishable under Sections 143, 146, 337, 353, 186 and 504 of

the Indian Penal Code and section 120 of the Gujarat Police

Act and Criminal Case No. 2477 of 2017 pending in the Court

of Judicial Magistrate, Bhavnagar.

2. Heard learned advocate Mr. B. M. Mangukiya for the

petitioners and learned APP Ms. M. D. Mehta for the

respondent - State.

3. By consent of learned advocates appearing for the parties, the

matter is taken up for final hearing today. Hence, RULE.

Learned APP waives service of notice of rule for and on behalf

of the respondent - State.

4. It is the case of the petitioner that the FIR being C.R.No.I-69

of 2016 was registered with Ghogha Road Police Station on

12.09.2016 for the incident which is alleged to have occurred

on 11.09.2016. The allegations in FIR is that there was a

function 11.09.2016 of the Hon'ble Chief Minister at

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Sardarnagar, Bhavnagar and some of persons belonging to

Patidar Community were detained under section 68 of the

Gujarat Police Act. It was further alleged that for getting the

aforesaid persons released, the petitioners and 40 to 50 other

persons belonging to Patidar Community formed an unlawful

assembly and came in the Police Station and started shouting

and abusing by using derogatory words. It is alleged that

though police personnels were posted and on account of the

said incident, one journalist has sustained injuries. It is alleged

that the petitioners have obstructed the police from doing their

lawful duty and therefore, the aforesaid FIR was registered

under sections 143, 146, 337, 353, 186 and 504 of the Indian

Penal Code r/w section 120 of the Gujarat Police Act.

5. Learned advocate Mr. B. M. Mangukiya appearing for the

petitioners has submitted that the FIR is registered against the

petitioners under sections 186 of the Indian Penal Code which

is non cognizable offence, bailable and triable by any

Magistrate. Section 195 of the Criminal Procedure Code

provides that the offence punishable under sections 172 to 188

of the Indian Penal Code are non-cognizable offence and no

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Court shall take cognizance of any offences except on a

complaint in writing of the public servant given to the Court.

Learned advocate Mr. Mangukiya submitted that in the instant

case for offence punishable under section 186 of the Indian

Penal Code and FIR was registered and no complaint is filed

before the competent Court, which is contrary to the

provisions of the law and therefore, the entire FIR is required

to be quashed and set aside.

6. Learned advocate Mr. Mangukiya for the applicant relied upon

the CAV judgment dated 13.04.2017 in case of

Govardhankumar Thakoredas Asrani V/s. State of Gujarat and

others. passed in Criminal Misc. Application No. 24632 of

2015 reported in 2018 (1) GLH 63. Learned advocate Mr.

Mangukiya pointed out that by considering the judgments in

five other matters, the Coordinate Bench ultimately quashed

and set aside the FIR and prayed that the impugned FIR being

C.R.No.I-69 of 2016 registered with Ghogha Road Police

Station, District:- Bhavnagar and Criminal Case No. 2477 of

2017 pending in the Court of Judicial Magistrate, Bhavnagar

may be quashed and set aside.

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7. Learned APP Ms. M. D. Mehta appearing for the respondent -

State vehemently opposed this petition, however, she could not

dispute the propositions of law cited by learned advocate Mr.

Mangukiya for the applicant. However, learned APP Ms.

Mehta submitted that liberty may be reserved in favour of the

respondent to initiate fresh proceedings by following the

procedure prescribed under the law.

8. Except the aforesaid submissions and the judgment referred

above, no other judgments were cited nor any submissions

were made by the learned advocates for the parties.

9. This Court has considered the submissions of the rival parties

and examined the matter from the aforesaid point of view.

Section 186 of the Indian Penal Code reads as under:-

Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.

10. Section 195 (1) of the Criminal Procedure Code reads as under:-

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

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(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;

11. Both these sections as well as submissions made by

learned advocate Mr. Mangukiya were considered by this

Court in case of Govardhankumar Thakoredas Asrani V/s.

State of Gujarat and by relying upon the judgments in respect

of five other matters in paragraph no. 53, 54, 55, 56 and 57,

the Court has observed as under:-

53. I take notice of the fact that in the following matters, the charge-sheets are yet to be filed.

(1) Criminal Misc. Application No.24379 of 2016; (2) Criminal Misc. Application No.20831 of 2015; (3) Criminal Misc. Application No.21601 of 2016; (4) Criminal Misc. Application No.23399 of 2016; and (5) Criminal Misc. Application No.26688 of 2016;

54. There is no doubt that the position of law is quite clear.

55. Mr. Amin, the learned Public Prosecutor appearing for the State submitted that even if the prosecutions are to be quashed on the ground of bar of section 195, it is always open for the State to initiate fresh proceedings by following the procedure prescribed by law. It goes without saying, and the State need not even seek permission of this Court in this regard.

56. I am of the view, having regard to the nature of the allegations levelled in the five matters referred to above, which are at the stage of investigation, that the first information reports should be quashed with liberty to the State to initiate fresh proceedings by following the procedure prescribed by law. Whatever investigation has been carried out so far, the same will not be rendered

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invalid. For the purpose of initiating fresh proceedings in accordance with law, the very same materials can be used. In such circumstances, as an exception, and without being cited as a precedent, in the peculiar facts of the case, I am inclined to interfere even in those cases where the charge- sheets have not been filed. I take notice of the fact that in all the five cases, referred to in para-53 of this judgment, the investigation is practically over, and the only thing left, is to file the charge-sheet.

57. For the foregoing reasons, all the applications succeed and are hereby allowed. The proceedings of the criminal cases, referred to in the earlier part of the judgment, pending in the different courts, are hereby ordered to be quashed. The first information reports, which are yet to culminate in a chargesheet, are also hereby ordered to be quashed. It is clarified that it shall be open to the State to file fresh proceedings against the applicants by following the procedure prescribed by law. If the issue, as regards the limitation, as prescribed under section 468 of the Cr.P.C., crops up, then the court concerned shall consider the provisions of section 473 of the Cr.P.C. Rule is made absolute to the aforesaid extent in each of the cases.

12. In view of the aforesaid settled principles of law, this

petition is also required to be allowed by quashing and setting

aside the FIR being C.R.No.I-69 of 2016 registered with

Ghogha Road Police Station, District:- Bhavnagar as well as

Criminal Case No. 2477 of 2017 pending before the Court of

Judicial Magistrate, Bhavnagar. However, as far as

submissions of learned APP Ms. M. D. Mehta appearing for

the respondent - State to initiate fresh proceedings is

concerned, State is at liberty to initiate fresh proceedings if

permissible under the law.

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13. The present petition succeeds. The impugned FIR being