Gujarat High Court
Milanbhai Laxmanbhai Kuvadiya vs State Of Gujarat on 23 March, 2023
Bench: Ilesh J. Vora
R/CR.MA/8075/2020 ORDER DATED: 23/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8075 of 2020
==========================================================
MILANBHAI LAXMANBHAI KUVADIYA
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 23/03/2023
ORAL ORDER
1. Rule. Learned APP waives service of rule for the respondent
- State.
2. By way of this application under Section 482 of Code of
Criminal Procedure, 1973, the applicant - accused seek to
invoke inherent powers of this Court, for quashing the
impugned FIR being C.R.No.I-11198047200291 of 2020
lodged with Shihor Police Station, Bhavnagar as well as
other consequential proceedings arising thereto.
3. Learned advocate for the applicant - accused submitted
that the police official is not empowered to register a case
under Section 188 and same is barred under Section 195
R/CR.MA/8075/2020 ORDER DATED: 23/03/2023
of the Code of Criminal Procedure, 1973. In this context, it
is submitted that there must be a complaint by the public
servant for the alleged offence and it is mandatory to file a
written complaint and non-compliance of the same would
vitiate the prosecution, and therefore, in the facts of the
present case, learned Magistrate Court cannot take
cognizance after filing of the chargesheet since the FIR is
not filed by the authorized officer and thus, he prays that
the entire prosecution is vitiated, considering the bar
under Section 195(1)(a)(i) of the Code of Criminal
Procedure.
4. In support of the aforesaid contentions, strong reliance has
been placed on the case of Soni Dineshkumar Dahyalal
Vs. State of Gujarat (Criminal Misc. Application
No.17270/2012).
5. On the other hand, learned APP for the respondent - State
fairly stated that the complaint, as contemplated under
Section 195 of the Cr.P.C. has not been filed by the officer
concerned. However, learned APP submitted that the Trial
Court can take cognizance of the other offences punishable
under the Penal Code.
R/CR.MA/8075/2020 ORDER DATED: 23/03/2023
6. Heard learned counsel for the respective parties and upon
perusal of the chargesheet case papers, this Court is of the
opinion that the issue is squarely covered by the judgment
of this Court in the case of Goverdhankumar Thakordas
Asrani Vs. State of Gujarat (Criminal Misc. Application
No.24632/2015), wherein after considering the statutory
provisions as well as law laid down by the Apex Court on
the issue, it was held that the entire prosecution fails on
the ground that, no cognizance could have been taken by
the Trial Court for the offence punishable under Section
186 of the IPC upon a police report in view of the specific
bar under Section 195 of the Cr.P.C.
7. In light of the settled position of law and considering the
facts of the present case, this application succeeds and is
hereby allowed. The impugned FIR being C.R.No.I-
11198047200291 of 2020 lodged with Shihor Police
Station, Bhavnagar as well as chargesheet and other
consequential proceedings arising thereto are hereby
quashed qua applicant herein. All the consequential
proceedings pursuant thereto stand terminated. Rule is
made absolute to the aforesaid extent.
R/CR.MA/8075/2020 ORDER DATED: 23/03/2023
8. It is clarified that it is open for the State to file a fresh
proceedings against the applicant by following the
procedure prescribed by law.
Direct Service is permitted.
(ILESH J. VORA,J)
Rakesh
