Hareshbhai Shamjibhai Jambukiya vs State Of Gujarat
2022 Latest Caselaw 8797 Guj

     R/CR.MA/10109/2017                         ORDER DATED: 06/10/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 10109 of 2017
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       HARESHBHAI SHAMJIBHAI JAMBUKIYA & 9 other(s)
                            Versus
                 STATE OF GUJARAT & 2 other(s)
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Appearance:
MS. MOHINI H DAVE(7849) for the Applicant(s) No.
1,10,2,3,4,5,6,7,8,9
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 2
MS. MAITHILI D. MEHTA, APP for the Respondent(s) No. 1,3
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                           Date : 06/10/2022

                             ORAL ORDER

1. Heard Ms. Mohini H. Dave, learned counsel appearing for the applicants, Ms. Divya Panchal, learned counsel for Mr. Bhunesh C. Rupera, learned counsel for respondent no.2 and Ms. Maithili D. Mehta, learned APP appearing for the respondent- State.

2. By way of the present application, the applicants herein have aggrieved by the impugned FIR being I-C.R. No. 7 of 2016 dated 01.03.2016 registered with Ranpur Police Station, District: Botad under Sections 186, 143, 147, 504 and 426 of the Indian Penal Code r/w. Section 135 of the Gujarat Police Act.

R/CR.MA/10109/2017 ORDER DATED: 06/10/2022

3. At the outset, Ms. Mohini H. Dave, learned counsel submitted that the impugned complaint arraigning the applicants herein with the charges under Section 186 of the Indian Penal Code is barred as per Section 195 (1)(a) of the Code of Criminal Procedure.

4. Ms. Dave, learned counsel placed reliance on the judgment in the case of Ramji Bhikha Koli and others v/s. State of Gujarat reported in 1999 (1) GLR 790, placing reliance on the same, submitted that the impugned complaint is required to be quashed, in view of the bar under section 195(1)(a)(i) of the Code of Criminal Procedure.

5. Ms. Mehta, learned APP was unable to contradict the aforesaid submissions canvased by Ms. Dave, learned counsel appearing for the applicants.

6. Position of law:

6.1. In case of Ramji Bhikha Koli and others v/s. State of Gujarat reported in 1999 (1) GLR 790, relevant para-8 reads thus:

"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

R/CR.MA/10109/2017 ORDER DATED: 06/10/2022

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 Section 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 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 Sections 143, 147, 148, 149, 332, 333 and 307 of IPC, cannot be split 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 Section 195(1)(a)(i) of the Code, as held by Supreme Court in the case reported vide AIR 1984 SC 1108 :(1984 Cri LJ 926)."

6.2. Section 195 of the Code of Criminal Procedure reads thus:

R/CR.MA/10109/2017 ORDER DATED: 06/10/2022

"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, 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;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

R/CR.MA/10109/2017 ORDER DATED: 06/10/2022

(2) Where a complaint has been made by a public servant under clause

(a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

7. In view of the settled position of law, as referred above and the facts of the present case, undisputedly, there is a bar of lodging of FIR under Section 195 (1)(a)(i) of the Code of Criminal Procedure, as stated above. In view of the aforesaid, consequential provisions of the Indian Penal Code which are

R/CR.MA/10109/2017 ORDER DATED: 06/10/2022

arraigned against the present applicants, which also led to rioting, making attempt on life of police personnel and unlawful assembly are required to be quashed, in view of the fact that, the offences charged against the present applicants under sections 143, 147, 504 and 426 of the Indian Penal Code cannot be splited from, as a separate offence from Section 186 of the Indian Penal Code.

8. In view of above, the impugned FIR being I-C.R. No. 7 of 2016 dated 01.03.2016 registered with Ranpur Police Station, District: Botad is quashed and aside as well as other consequential proceedings, if any, arising out from the impugned F.I.R. is also quashed and and set aside. However, a liberty is reserved in favour of the respondent authorities to file a private complaint, as permissible under the law. The present Application stands allowed, to the aforesaid extent.

9. Rule is made absolute to the aforesaid extent. Interim relief, if any, stands vacated.

(VAIBHAVI D. NANAVATI,J) Pradhyuman