Gujarat High Court

Tejasbhai Narenderabhai Naik vs State Of Gujarat on 4 October, 2022

Bench: Vaibhavi D. Nanavati

   R/SCR.A/3206/2016                                    ORDER DATED: 04/10/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

  R/SPECIAL CRIMINAL APPLICATION NO.                       3206 of 2016

=====================================================
             TEJASBHAI NARENDERABHAI NAIK
                        Versus
            STATE OF GUJARAT & 1 other(s)
=====================================================
Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MS MAITHILI D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
=====================================================

 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 04/10/2022
                                 ORAL ORDER

1. By way of the present application the applicant

herein under Article 226 of the Constitution of

India read with Section 482 of the Code of

Criminal Procedure, 1973 has prayed for quashing

of the FIR being C.R. No.II-5 of 2016 registered

against the applicant herein with Navsari

(Rural) Police Station, District Navsari for the

alleged offence punishable under Section 188 of

the Indian Penal Code, 1860. The aforesaid FIR

culminated in charge sheet and is registered as

Criminal Case No.1582 of 2016.

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022

2. Mr. Panthil Majmudar, the learned advocate

appearing for the applicant submitted that the

applicant herein is constrained to approach this

Court seeking the aforesaid reliefs in view of

the fact since the alleged offence is one of the

offences, for which there is a bar under Section

195 of the Code of Criminal Procedure, 1973 and

the learned Magistrate could not have taken

cognizance of the alleged offence since, the FIR

is not filed by the authorized officer and

considering the bar under Section 195 of the

Code of Criminal Procedure, 1973, the Court

below cannot take cognizance of the alleged

offence on filing of the charge-sheet and

therefore, the entire prosecution has to fail

considering the bar under Section 195(1)(a)(i).

Mr. Panthil Majmudar, the learned advocate

appearing for the applicant placed reliance on

Special Criminal (Quashing) Application No.2908

of 2015 wherein this Court has considered an

identical issue and submitted that the impugned

complaint be quashed and set aside.

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022

3. Ms. Maithili Mehta, the learned Additional

Public Prosecutor appearing for the respondent

State was not in a position to controvert the

existing legal position and the statutory bar

under Section 195 of the Code.

4. Without entering into the merits of the matter,

it is apposite to refer the position of law :-

 Special Criminal Application (Quashing) No.2908

of 2015, paragraph Nos.4 to 8, which reads

thus :-

"4. On conclusion of the investigation the charge-sheet was filed and the Court took cognizance upon the said charge- sheet.

5. The entire prosecution against the accused persons should fail on the short ground that no cognizance could have been taken by the Trial Court for the offence punishable under Sections 186 and 188 of the Indian Penal Code upon a police report in view of the specific bar under Section 195 of the Criminal Procedure Code.

6. The point raised in this writ- application is squarely covered by the decision of the Supreme. Court in the case of State of U.P. v. Sureshchandra Srivastava, AIR 1984 SC 1108.

7. The said judgment of the Supreme Court

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022

was considered by a learned Single Judge of this Court in the case of Ramji Bhika Koli v. State of Gujarat, 1999 (1) GLH

203. I may quote the observations made by the learned Single Judge as under :-

"8. It is undisputed that allegations made in the complaint against present petitioners include allegations in respect to offence made punishable under section 186 of IPC. It is true that petitioners are also charged with other offences like offences made punishable under sections 143, 147, 148, 149, 332, 333 and 307 of IPC, which are not covered under section 195. However, it is well accepted proposition of law that where an accused commits some offences which are separate and distinct from those contained in section 195;

section 195 will affect only the offences mentioned therein unless such other offences form an integral part of the same so as to amount to offences committed as a part of the same transaction. That in such case the other offences would also fall within the ambit of sec.195 of the Code. That in the instant case if the complaint recorded as FIR is read as a whole the petitioners have formed unlawful assembly with an object to resist a prohibition raid carried out by PSI O.M. Raval and his squad by using force with deadly weapons and causing rioting and even making an attempt on life of PSI O.M. Raval, in prosecution of the common object to prevent the raiding party to enter into the house of petitioner no.1 and to carry out the raid in due discharge of their duty. That thereby entire prosecution of voluntary causing

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022

obstruction to the public servant by forming unlawful assembly with an object to resist the same and using deadly weapon to cause riot and even to make an attempt on life of the PSI who led the raiding party is a single transaction and integral part of the offence constituting and made punishable under section 186 of IPC. In other words, the offences charged against the petitioners under secs.143, 147, 148, 149, 332, 333 and 307 of IPC, cannot be splited from the complaint for a separate offence in the facts and circumstances of the present case, and thereby cognizance in respect to said offences are also barred under sec.195(1)(a)(i) of the Code, as held by Supreme Court in the case reported vide A.I.R. 1984 S.C.-108.

9. It may be noted that learned Addl.

                    Sessions   Judge    while    passing   the
                    impugned    order     has     relied    on

observations made by High Court of Kerala in the matter of M.

                    Chacko    Vs.      State     of     Kerala
                    reported      vide      1985      Cri.L.J.
                    120.    That     learned Addl. Sessions

Judge appears to have missed the relevant portion as stated by High Court of Kerala in the said matter vide para.9 as observed hereinunder:

"However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction and to hold that there can be valid prosecution for offences not

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022

mentioned in S.195 of the Code, without written complaint of the public authority or the court, as the case may be. At the same time, if the facts give rise to distinct offences, some attracting the operation of s.195 and others not so, the bar can operate only regarding the former and not regarding the latter."

              8. In     view     of     the   above    this
              application       is allowed. The further

of 2015, pending in the Court of the learned JMFC, Mangrol are hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated. Rule is made absolute. Direct service is permitted. "

5. Considering the aforesaid position of law and on

the aforesaid ground, the present application is

allowed in view of the fact that no cognizance

could have been taken by the Trial Court for the

offence punishable under Section 188 of the

Indian Penal Code upon a police report in view

of the specific bar under Section 195 of the

Criminal Procedure Code. In the facts of the

present case, the present applicant herein is

the sole accused and is charged with offence

punishable under Section 188 of the Indian Penal

R/SCR.A/3206/2016 ORDER DATED: 04/10/2022