Gujarat High Court
Dhavalkumar Harikrushnabhai Barot vs State Of Gujarat on 31 January, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/7306/2022 ORDER DATED: 31/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7306 of 2022
==========================================================
DHAVALKUMAR HARIKRUSHNABHAI BAROT
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MS DIPMALA S DESAI(6596) for the Applicant(s) No. 1,2,3,4
NOTICE SERVED for the Respondent(s) No. 2
MS CM SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 31/01/2024
ORAL ORDER
1. Rule. Learned APP waives service of rule for the
respondent-State.
2. By way of this application, the applicants-original
accused seek to quash the proceedings of Criminal Case
No.22788 of 2020, for the offences punishable under
Sections 186, 506(1) and 114 of the Indian Penal Code.
The applicants have also challenged the order of
discharge dated 26.09.2023 passed by the trial Court by
which the Court concerned refused to consider Section
195 of the Criminal Procedure Code, 1973 and accordingly
the prayer of discharge has been rejected by the
Metropolitan Magistrate Court at Ahmedabad.
NEUTRAL CITATION
R/CR.MA/7306/2022 ORDER DATED: 31/01/2024
undefined
3. This Court has heard Ms. Dipmala Desai, learned
counsel for the applicants and Ms. C.M. Shah, learned
Additional Public Prosecutor for the respondent-State.
4. The facts and circumstances leading to file the
present application are that, the FIR by the police officials
filed for the offence punishable under Section 186 and
506(1) of the Indian Penal Code against the applicants,
inter alia, alleging that they have voluntarily obstruct the
police officials in discharging their public functions and
intimated them for dire consequences. Pursuant to the
said FIR dated 29.04.2020, the chargesheet came to be
filed for the aforesaid offences. In view of bar of Section
195 which provides that, no Court shall take cognizance of
the offence under Section 186 of the Indian Penal Code
unless the complaint in writing by a public servant is
given. The applicants had submitted discharge
application, inter alia, stating that, the complaint in writing
has not been given by the police officials and thus, Court
cannot take cognizance of the offence. The learned trial
Court rejected the discharge application observing that,
both the offences are distinct and separate and therefore,
the bar of Section 195 would not be applicable so far
offence of criminal intimidation is concerned.
5. In the aforesaid facts, learned counsel Ms. Desai has
submitted that, in the offence punishable under Section
186 of the Indian Penal Code, the complaint in writing by a
NEUTRAL CITATION
R/CR.MA/7306/2022 ORDER DATED: 31/01/2024
undefined
public servant is must. In the facts of the present case, the
FIR is filed by the police officials. In such circumstances,
there is a bar created under Section 195 of the Cr.P.C. to
take cognizance of the offence and therefore, against the
statutory provision, by taking cognizance, the trial Court
has proceeded under the premise that the offence
punishable under Section 506(1) is inseparable and
therefore, the bar is not applicable.
6. In view of the aforesaid contention and relying on
the case of Satish Mehra vs. State (NCT, Delhi) reported in
(2012) 13 SCC 614, she contended that, the power to
quash proceedings at any stage is inherent in a High Court
on the broad principle that in case the allegations made in
the FIR or criminal complaint as may be, prima facie, do
not disclose a triable offence, there can be reason as to
why accused should be made to suffer the agony of legal
proceedings and this is the core basis on which the power
to interfere with the pending criminal proceedings has
been recognized to be inherent in every High Court. In
such circumstances, she would urge that, case is made
out to exercise inherent powers to quash the criminal
proceedings.
7. On the other hand, opposing the prayer, learned
State counsel has submitted that, the trial Court has
rightly observed that, the offence committed during the
course of same transaction cannot be split up and
NEUTRAL CITATION
R/CR.MA/7306/2022 ORDER DATED: 31/01/2024
undefined
therefore prosecution of Section 506(1) is falling the
outside the purview of Section 195 can be tried by the
Court without a complaint as provided under Section 195
of the Cr.P.C. In such circumstances, she would urge that
no case is made out to interfere with the criminal
proceedings which has already been commenced after
framing of charge.
8. Having regard to the facts and circumstances of the
present case, the issue falls for my consideration is
whether the case is made out to quash the criminal
proceedings in exercise of inherent powers of this Court
under Section 482 of Cr.P.C.?
9. The applicants have approached this Court to quash
the criminal proceedings in view of the fact that since
alleged offence is one of the offences for which there is a
bar under Section 195 of the Cr.P.C. and learned
Magistrate could not have taken cognizance of the alleged
offence since the complaint is not filed by the public
servant. It is no doubt true that the allegations made
against the accused are that they had voluntarily
obstructed the public servants who were on duty. Thus,
the primary offence alleged to have been committed by
the accused is an offence under Section 186 of the Indian
Penal Code. Thus, therefore, the offence of intimidation
alleged to have been committed cannot be said to be a
distinct and separate offence as it has been committed
NEUTRAL CITATION
R/CR.MA/7306/2022 ORDER DATED: 31/01/2024
undefined
pursuant to the act of obstructing the public servant and
thus, both the offences seems to be inseparable. In such
circumstances, the Apex Court time and again in its
various judgments held that, the offence committed
during the course of same transaction cannot be split up
to avoid Section 195 of the Cr.P.C.
10. In view of the aforementioned reasons and
considering the peculiar facts and circumstances of the
present case, the case is made out for exercising the
inherent powers of this Court to quash the proceeding of
Criminal Case No.22788 of 2020.
11. Resultantly, this application is allowed. The
proceedings of Criminal Case No.22788 of 2020 pending
before the Metropolitan Magistrate Court, Ahmedabad is
hereby quashed. Accordingly, rule is made absolute.
However, it is clarified that it shall be open to the
prosecution to file fresh proceedings against the
applicants by following the procedure prescribed by law.
Direct service is permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
