Gujarat High Court

Hamidbhai Amadbhai Bhatti vs State Of Gujarat on 28 June, 2023

Bench: Sandeep N. Bhatt

      R/SCR.A/1539/2020                                        ORDER DATED: 28/06/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 1539 of 2020

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                      HAMIDBHAI AMADBHAI BHATTI & ANR.
                                   Versus
                          STATE OF GUJARAT & ANR.
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Appearance:
MR ND NANAVATY, SENIOR ADVOCATE with
MR MRUGEN K PUROHIT, ADVOCATE for the Applicants

MR SOAHAM JOSHI, APP for the Respondent No. 1 - State

MR ABHAYKUMAR P SHAH, ADVOCATE for Respondent No.2-Complainant
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 28/06/2023

                                       ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicant seeks

quashment of the impugned FIR being CR-I No.13 of 2014

registered with the 'A' Division Police Station, Bhuj City,

District : Kachchh for the offences punishable under Sections

143, 147,149, 153, 427 and 186 of the Indian Penal Code

and Section 3 of the Prevention of Damage to Public

Property Act, 1984 as well as the charge-sheet thereof as

well as the proceeding/s arising from the same being

Criminal Case No.1464 of 2014, pending before the learned

competent Criminal Court as well as the order/s impugned

passed therein.

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2. The brief facts of the case are as under :

2.1 The impugned FIR came to be lodged against 50

unknown persons, including the present both the applicants,

for the offences noted above.

2.2 The applicant No.1 was the elected member of the

Bhuj Nagarpalika and a general meeting of the Nagarpalika

was being held on 23.01.2014, where the present applicant

being one of the elected members came up along with more

than 100 persons and some disagreements took place with

regard to entry of so many persons which ultimately resulted

into ruckus and the alleged complaint was lodged against the

present applicants and other 50 unknown persons alleging the

damage to property in the Nagarpalika.

2.3 The impugned complaint was lodged by the then

in-charge Chief Officer of Bhuj Nagarpalika.

2.4 The investigating officer had filed a charge-sheet

which was culminated into Criminal Case No.1464 of 2014,

wherein the learned 2 nd Additional Chief Judicial Magistare,

Bhuj has passed an order below Exh.69/C for framing of

charge against the present applicants and other 12 persons.

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2.5 Therefore, the present petition for quashing the

impugned complaint, charge-sheet and the proceedings /

orders passed in Criminal Case No.1464 of 2014.

3. Heard learned senior advocate Mr.N.D. Nanavaty

with learned advocate Mr.Mrugen Purohit for the applicants,

learned advocate Mr.Shah for the complainant and learned

AGP Mr.Soaham Joshi for the State.

4.1 Learned advocate Mr. N.D. Nanavaty for the

applicants has submitted that F.I.R. in question is filed

under the provisions of Sections 143, 147,149, 153, 427 and

186 of the Indian Penal Code and Section 3 of the

Prevention of Damage to Public Property Act, 1984.

4.2 He has drawn my attention that the complaint is

filed by the in-charge Chief Officer of the Bhuj Nagarpalika

and there is bar under Section 195 of the Criminal Procedure

Code to lodge such F.I.R. He has also drawn my attention

towards Section 2(d) of the Criminal Procedure and has

submitted that no complaint is filed as it is defined under

Section 2(d) of the Criminal Procedure Code by the

Competent Authority. Section 195 of the Criminal Procedure

Code specifically puts a bar on taking cognizance of the

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offence covered therein.

4.3 He has also submitted that Section 186 of the

India Penal Code invoked by the authority is within the

scope of Section 195 of the Criminal Procedure Code.

Therefore, there is specific bar under Section 195 of the

Criminal Procedure Code, which is applicable in the present

case.

4.4 He has relied on the judgment of this Court in

the case of Govardhankumar Thakoredas Asrani versus State

of Gujarat and Anr. reported in 2018 (1) G.L.H. 63 and more

particularly paragraphs 5 to 12 are are relevant. He has also

relied upon the judgment of the Hon'ble Apex Court in the

case of State of Haryana versus Bhajan Lal and Others

reported in AIR (1992) SC 604 and has prayed that when

the complaint is absolutely malafied, vexatious and amounts

to abuse of process of law with a sole purpose of harassing

the applicants, and therefore, the Court should exercise

exercise discretion under Section 482 by quashing the said

F.I.R.

4.5 He has submitted that there is a political rivalry

between the elected members of the Nagarpalika and they

have given criminal colour. He has further submitted that

therefore, that authority has not filed the present complaint

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with proper understanding about the provisions of law. He

has also relied upon the decisions of this Court in the case

of Tejasbhai Narendrabhai Naik versus State of Gujarat -

Special Criminal Application No.3206 of 2016 dated 04.10.2022, more particularly Paras : 3 to 5 thereof. He, therefore, prays to exercise the powers by quashing the

complaint as well as charge-sheet pursuant to such compliant.

5.1 Per contra, learned advocate Mr.Abhaykumar P. Shah for respondent No.2 - Complainant has submitted that

since there is bar regarding the offence under Section 195 of

the Criminal Procedure Code, however, since rest of sections,

since charge-sheet is filed, the trial can be proceeded.

However, he has fairly submitted that in view of the

judgment of this Court in the case of Govardhankumar

Thakoredas Asrani (supra), there also the Court has allowed

the petition by quashing the entire F.I.R. by permitting the

complainant to approach the concerned Court by filing

appropriate proceeding by way of private complaint, and

therefore, he has submitted that considering the settled

position of law, appropriate order may be passed.

5.2 In support of his submissions, he has relied upon

the decisions of the Hon'ble Supreme Court of India in the

case of Durgacharan Naik versus State of Orissa reported in

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AIR 1966 SC 1775 and in the case of Pankaj Aggarwal versus State of Delhi reported in 2001 (4) SCALE 235. He has submitted that this petition may be dismissed.

6. Learned Assistant Public Prosecutor Mr.Soaham

Joshi for respondent No.1 - State has also supported the

proceeding initiated by the complainant and has submitted

that now the charge-sheet is filed, the Court should not

exercise its discretion as prima facie offence is made out

against the applicants herein and therefore, he prays to

dismiss this application. However, in view of the settled legal

position, he has submitted that the Court may pass

appropriate order in the interest of justice.

7.1 I have heard learned advocates appearing for the

respective parties. I have also perused the F.I.R. It transpires

that there is a political rivalry between the elected members

of the Nagarpalika. It also transpires that due to that, some

incident has taken place and pursuant to that, an F.I.R. is

lodged by the in-charge Chief Officer of the Bhuj Nagarpalika

before the Bhuj 'A' Division Police Station bearing C.R.No.I-13

of 2014 under the provisions of Sections 143, 147,149, 153,

427 and 186 of the Indian Penal Code and Section 3 of the

Prevention of Damage to Public Property Act, 1984.

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7.2 At this stage, it would be fruitful to refer to the

judgment of this Court in the case of Govardhankumar

Thakoredas Asrani (supra), more particularly Paras : 43, 56

and 57 are relevant, which are as under:

"43. Thus, according to the decision of the

Supreme Court referred to above, the provision in

section 195 of the code should not be evaded by

resorting to devises and camouflages. The test

whether there is evasion of the section or not is

whether the facts disclose primarily and

essentially an offence for which a complaint of

the court or of the public servant is required. If

in truth and substance, the offence falls in the

category of the sections mentioned in section 195

of the Code, the prosecution for such an offence

cannot be taken cognizance of by misdescribing it

or by putting a wrong lable on it or changing its

garb. If the facts disclose an offence requiring

special complaint under section 195 of the Code,

the provision cannot be circumvented by filing a

complaint, for which, no special complaint is

required under the law, the nature of the offence

being the same.

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

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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 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- 3 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 charge-sheet, 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

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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."

7.3 Further, Sections 143 and 186 of the Indian Penal

Code are relevant to reproduce here, which are as under:-

"143. Punishment.--Whoever is a member of an

unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

186. Obstructing public servant in discharge of public functions.--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."

7.4 Further, Section 195 of the Criminal Procedure

Code, 1973 is more relevant to reproduce hereunder, which

reads as under:-

"195. Prosecution for contempt of lawful authority

of public servants, for offences against public

justice and for offences relating to documents

given in evidence.

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(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

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Court, or of some other Court to which that

Court is subordinate.

(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-

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(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."

7.5 At this stage, it is also fruitful to refer to the

decision of this Court in the case of Tejasbhai Narendrabhai

Naik (supra), more particularly Paras : 3 to 5 thereof, which read as under :

" 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) of 2015, paragraph Nos.4 to 8, No.2908 which

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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 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 :-

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"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

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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 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

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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

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prosecution for offences not 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

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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 view of above, the application is allowed and the further proceedings of Criminal Case No.1582 of 2016 pending before the Chief Judicial Magistrate Court, Navsari are ordered to be quashed and set-aside."

7.6 In view of this factual background and considering

the above-mentioned judgments of the Co-ordinate Bench of

this Court, it clearly transpires that the complainant, who

happens to be the public servant as he is working as in-

charge Chief Officer of the Bhuj Nagarpalika and since the

offence is registered under Section 195 of the Criminal

Procedure Code, I am in agreement with the applicants and

since there is bar created under Section 195 of the Criminal

Procedure Code, the present petition deserves to be allowed.

8. For the reasons recorded above, the following order

is passed.

8.1 The present application is allowed to the aforesaid