Gujarat High Court
Ashvinbhai Dashrathbhai Nayak vs State Of Gujarat on 9 January, 2025
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R/CR.MA/2051/2018 ORDER DATED: 09/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 2051 of 2018
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ASHVINBHAI DASHRATHBHAI NAYAK & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
FOUZAN N SONIWALA(8442) for the Applicant(s) No. 1,2
MANAN V PATEL(8059) for the Applicant(s) No. 1,2
MR PV PATADIYA(5924) for the Applicant(s) No. 1,2
MR MANAN MAHETA, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 09/01/2025
ORAL ORDER
1. The respondent no.2 although served with the notice of
rule issued by this Court, yet has chosen not to appear before
this Court either in person or through an advocate and oppose
this application.
2. By this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicants-original accused
persons seek to invoke the inherent powers of this Court
praying for quashing of the proceedings of the Criminal Case
No.3027 of 2017 pending before the Court of the learned Chief
Judicial Magistrate, Gandinagar arising from the F.I.R. being
C.R. No.II-3120 of 2017 filed before the Chandkheda Police
Station, District-Ahmedabad, for the offence punishable under
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Sections-186 r/w. 114 of the I.P.C.
3. The case of the prosecution can be summarized as
under:-
3.1 It is the specific case of the prosecution that the
complainant is the Assistant City Engineer, working at
Chandkheda Ward, in Sab Zonal Office of Ahmedabad
Municipal Corporation at Chandkheda and as a part of his duty,
he has gone to Chandkheda area for the purpose of
measurement and carrying out the construction activities on
the T.P. Scheme Road declared by the State of Gujarat. That
before going to the place, they have already obtained police
bandobast from the concerned police station as per the
prevailing practice and rules of the Ahmedabad Municipal
Corporation. At the time of digging activities carried out by the
staff of AMC, the applicants herein had come on the road and
tried to create hindrance and/or raised objections in carrying
out the activities of the staff of the AMC and they have shouted
on the officers concerned specifically stating that drive the
vehicles over them and and they will not shift from there and
therefore, by doing so, they have created obstructions in the
ongoing procedure/ activities carried out by the officers of the
Ahmedabad Municipal Corporation. Therefore, the complainant
had constrained to register the complaint against the accused
persons.
3.2 Pursuant to the registration of the present FIR, the
Investigating Officer has carried out the investigation and
ultimately, at the end of the day, on the basis of the evidence
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and/or materials collected by the Investigating Officer against
the accused persons, a charge-sheet came to be submitted,
which ultimately culminated into Criminal Case No.3027 of
2017. Considering the police report submitted by the
Investigating Officer concerned, the learned Magistrate has
taken cognizance upon the facts of the documents and passed
an order of issuance of process. As soon as the summons
served to the applicants-accused, they have immediately
approached this Court by way of present application.
4. Considering the averments made in the memo of
application as well as allegations levelled against the
applicants-accused in the body of the FIR, a co-ordinate bench
of this Court has passed the order of stay and since then, the
matter is lying in standstill position.
5. Heard learned advocate, Mr. Manan Patel for the
applicants; learned APP Mr. Manan Maheta for respondent no.1
- State of Gujarat.
6. Mr. Manan Patel, learned advocate for the applicants
submits that the FIR as well as further proceedings ensued on
the basis of registration of the FIR, are prima-facie against the
provisions of the statute. He has put reliance upon the Section-
195 of the Cr.P.C. and submitted that at the time of enactment
of the provisions of Cr.P.C., a very specific chapter is enacted
under the head of 'conditions requisite for initiation of
proceedings' incorporated in Chapter-XIV, more particularly,
under Section-195 of Cr.P.C., wherein, the head-note of the
section itself clearly goes on to show that 'prosecution for
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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, or (ii) of any abetment of,
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. Mr.
Manan Patel, learned advocate submits that admittedly the
present complaint is not based upon the complaint given by
the public servant before the competent court under section-
2(d) of Cr.P.C. Therefore, there was specific bar to take
cognizance upon the facts of the present case. Therefore, the
complaint as well as consequential proceedings ensued based
upon the said complaint are required to be quashed and set
aside. He has put reliance upon the following case laws.
(1) Goverdhankumar Thakoredas Asrani Vs. State of Gujarat
2017 (0) AIJEL-HC 237413
(2) Dineshsinh Pratapsinh Sisodiya Vs. State of Gujarat & Anr.
Criminal Misc. Application No.4744 of 2022
(3) Niravkumar Babulal Patel Vs. State of Gujarat & Anr.
Criminal Misc. Application No.531 of 2024.
He has submitted that considering the principle of law
laid down in the above-stated case laws of the Hon'ble Apex
Court as well as this Court, the prosecution instituted against
the applicants-accused would be permitted to be continued, in
that event, it would be amount to be gross abuse of the
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process of law, which ultimately leads to injustice to the
parties. Therefore, the prosecution launched against the
present applicants-accused is required to be quashed and set
aside.
7. Mr. Manan Maheta, learned APP appearing on behalf of
the respondent - State has objected the present application
with a vehemence and submitted that in-fact, the applicants
have tried to create hindrances in the lawful activities carried
out by the Government Officer in their duties and therefore,
they are constrained to register the FIR and on the basis of
registration of the FIR, the investigation has been carried out
by the Investigating Officer and ultimately at the end of day,
the Investigating Officer has filed charge-sheet against the
applicants-accused. Therefore, without entering into the
technicalities of the case law, the prosecuting agency be
directed to carry out the proceedings of the trial. He further
submits that law is well settled in that regard in the number of
cases rendered by the Hon'ble Apex Court as well as Hon'ble
High Court. Therefore, considering the principle of law laid by
the Hon'ble Apex Court as well as Hon'ble High Court, an
appropriate order may be passed.
8. Having heard learned advocates for the respective
parties and on perusal of the contents of the complaint, the
issue falls for my consideration is, as to whether the case is
made out for invoking inherent powers of this Court?
9. At this stage, I may refer to the parameters laid down by
this Court for quashing of an FIR in the case of State of
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Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters
are:-
"(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar en-grafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with malafide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
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Therefore, this Court is of the view that the case of the
present applicants falls within the parameters.
10. In the case of R.P. Kapur v. State of P(unjab, AIR
1960 SC 866 : 1960 Cri LJ 1239, the Hon'ble Apex Court
summarised some categories of cases where inherent
power can and should be exercised to quash the
proceedings :
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
11. In the case of Goverdhankumar Thakoredas Asrani
Vs. State of Gujarat reported in 2017 (0) AIJEL-HC 237413,
this Hon'ble court has held as under:-
38. As a general rule, any person, having knowledge of
commission of an offence may set the law in motion by
a complaint, even though he is not personally
interested or affected by the offence. There are
exceptions to this general rule, as evident from
sections 195 and 196 of the Cr.P.C. Section 195 is one
of the sections, which prohibits a court from taking
cognizance of certain offences unless and until a
complaint has been made by some particular authority
or person. The other sections, with similar
prescriptions, are sections 196 to 199 of the Code.
Section 195 of the Code has been enacted as a
safeguard against the irresponsible and reckless
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prosecutions by the private individuals in respect of the
offences, which relate to the administration of justice
and contempt of lawful authority.
39. It is true that section 195 of the Code does not bar
the trial of an accused for a distinct offence disclosed
by the same set of facts and is not so stated therein.
Section 195 also does not provide further that if in the
course of the commission of that offence, the other
distinct offences are committed, the court concerned is
debarred from taking cognizance in respect of those
offences as well. However, if the perusal of the first
information report and other papers of the charge-
sheet makes it clear that the offence under sections
186 or 188 of the IPC, as the case may be, is closely
interconnected with the other distinct offences and
cannot be split up, then, in such circumstances, the bar
of section 195 of the Cr.P.C. will apply to such other
distinct offences also.
41. Thus, what is discernible from the decisions
referred to above of the Supreme Court is that if in
truth and substance, an offence falls in the category of
sections in section 195, it is not open to the court to
undertake the exercise of splitting them up and
proceeding further against the accused for the other
distinct offences. This would depend on the facts of
each case. It cannot be laid as a straitjacket formula
that the Court cannot undertake the exercise of spliting
up. It would depend upon the nature of the allegations
and the materials on record.
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 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
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the five cases, referred to in para-53 of this judgment,
the investigation is practically over, and the only thing
left, is to file the charge-sheet."
12. I may refer the decision of this Court rendered in the case
of Niravkumar Babulal Patel Vs. State of Gujarat & Anr.
in Criminal Misc. Application no.531 of 2024 on 23.10.2024,
held as under:-
"4. On conclusion of the investigation the charge-sheet
was filed and the Court took cognizance upon the said
chargesheet.
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 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 Code. In 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."
13. I have gone through the record and proceedings and also,
considering the arguments canvassed by the learned
advocates for the respective parties. Considering the aforesaid
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position of law and on the aforesaid ground, I am of the view
that no cognizance could have been taken by the Trial Court
for the offence punishable under Section 186 of the Indian
Penal Code upon a police report in view of the specific bar
under Section 195 of the Criminal Procedure Code as the
complaint is registered against the applicants-accused for the
offence under section-186 r/w. 114 of the I.P.C. and if the
prosecution instituted against the applicants-accused would be
permitted to be continued, in that event, it would be amount to
be gross abuse of the process of law, which ultimately leads to
injustice to the parties. Therefore, the prosecution launched
against the applicants are required to be quashed and set
aside.
14. For the foregoing reasons, I am inclined to allow this
application and the same is accordingly allowed. The
proceedings of the Criminal Case No.3027 of 2017 pending
before the the Court of the learned Chief Judicial Magistrate,
Gandinagar arising from the F.I.R. being C.R. No.II-3120 of
2017 filed before the Chandkheda Police Station, District-
Ahmedabad, is hereby ordered to be quashed so far as the
present applicants is concerned. All consequential proceedings
pursuant thereto shall stand terminated.
Rule is made absolute to the aforesaid extent. Direct
service is permitted.
(DIVYESH A. JOSHI,J)
A. B. VAGHELA
