Gujarat High Court
Hardik Bharatbhai Patel vs State Of Gujarat on 28 June, 2024
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/CR.MA/3910/2023 ORDER DATED: 28/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3910 of 2023
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HARDIK BHARATBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
RAFIK LOKHANDWALA(5590) for the Applicant(s) No. 1
MR MITESH AMIN, A.A.G. with MR. KM ANTANI, APP for the Respondent(s)
No. 1
RULE UNSERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/06/2024
ORAL ORDER
1. By way of present petition, the petitioner has requested to
quash and set aside the complaint being CR No. II-04 of 2018
registered with Dholka Town Police Station, Dist Ahmedabad
Rural for the offence punishable under Sections 188, 171G of
the Indian Penal Code and Sections 134, 36(a), 72(2) of the
Gujarat Police Act as well as proceedings of the Criminal Case
No. 378 of 2018 pending before the learned Principal Senior
Civil Judge and Additional Chief Judicial Magistrate, Dholka.
2. Learned advocate for the applicant has submitted that the
alleged offence being non cognizable, the FIR is not
maintainable. The registration of the FIR itself is abuse of
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R/CR.MA/3910/2023 ORDER DATED: 28/06/2024
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process of law. The allegations qua the applicant is concocted
and got up and even if the allegations levelled in the complaint
are accepted in their entirety that do not make out any offence
against the applicant. Therefore, the continuation of
investigation of the impugned criminal complaint against the
applicant who has not indulged into any overt act as alleged
would amount to abuse of process of law and cause hardship
and harassment to the applicant.
3. It was further submitted by learned advocate for the
applicant that there is no material to prove that the applicant
delivered any provocative defamatory speech as alleged in the
FIR. That, no independent witness has been examined by the
police so as to substantiate allegation levelled against the
applicant. No video CD as allegedly recovered by the police has
been supplied to the applicant. Ultimately, it was requested by
the leaned advocate for the applicant to quash and set aside the
impugned complaint.
4. On the other side, learned Additional Advocate General
Mr. Amin for the State has objected the submissions made by
learned advocate for the applicant and submitted that the
provisions of Section 195 of CRPC are limited only to the
prosecution of certain offences specified therein and not the
other distinct offences. That the provision of Section 195 of
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R/CR.MA/3910/2023 ORDER DATED: 28/06/2024
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CRPC deals with the prosecution for contempt of lawful
authority of the public servants, for the offences against the
public justice and for the offences relating to the documents
given in evidence. That, there is nothing in the section to
suggest that the prosecution in respect of the other distinct
offences based on the same facts could not be instituted except
otherwise in compliance with the provisions of that section. It
is further submitted the recourse would be open to the
Investigating Officer to even proceed further to investigate for
further evidence to find out whether any other offence was
committed during the alleged act. Ultimately, it was requested
to dismiss the present petition.
5. Having heard learned advocate for the petitioner and
learned Additional Advocate General and considering the
averments made in the present petition, it appears that the
charge sheet is filed under Section 188 of IPC and no further
allegations are made against the present petitioner and when
there is absolute bar on taking the cognizance of the offence
punishable under Section 172 to 188 of the IPC, except on the
complaint in writing of the public servant concerned or of
some other public servant to whom he is administratively
subordinate and when the present case does not disclose any
commission of offence distinct from the alleged offence under
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R/CR.MA/3910/2023 ORDER DATED: 28/06/2024
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Section 188 of IPC, the Magistrate is debarred from taking
cognizable in the present matter, as provision of Section 195 of
CRPC has not been complied with.
6. It appears from the compilation produced by the learned
advocate for the petitioner consisting various judgments
wherein the complaints filed against the present petitioner
under the similar offence have been quashed and set aside by
the coordinate bench of this court vide order dated 17.01.2023
passed in Special Criminal Application No. 2897 of 2021 and
order dated 01.12.2021 passed in Special Criminal
Application No. 7425 of 2020.
7. 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 188 of the IPC
upon a police report in view of the specific bar under Section
195 of the Cr.P.C.
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R/CR.MA/3910/2023 ORDER DATED: 28/06/2024
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8. In light of the settled position of law and considering the
facts of the present case, this petition succeeds and is hereby
allowed. The impugned FIR being CR No. II-04 of 2018
registered with Dholka Town Police Station, Dist Ahmedabad
Rural fas well as chargesheet and proceedings arising out of
the impugned FIR being Criminal Case No.378 of 2018
pending before the learned Judicial Magistrate First Class,
Dholka are herein quashed. All the consequential proceedings
pursuant thereto stand terminated. Rule is made absolute to the
aforesaid extent.
9. 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.
(SAMIR J. DAVE,J)
K. S. DARJI
