Gujarat High Court
Virendra Ratanlal Purohit vs State Of Gujarat on 6 March, 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
Reserved On : 03/02/2025
Pronounced On : 06/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 10499 of 2021
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
Approved for Reporting Yes No
- √
=======================================================
VIRENDRA RATANLAL PUROHIT & ORS.
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR.ALOK M THAKKAR for the Applicant(s) No. 1,2,3,4,5
NOTICE SERVED for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
CAV JUDGMENT
1. Rule. Learned APP Mr. Soaham Joshi waives service
of notice of rule for respondent no.1 – State of
Gujarat.
2. By way of the present application under Section
482 of the Code of Criminal Procedure, 1973 (for
short, the ‘Code’), the applicants pray for
quashing and setting aside the FIR being C.R.
No.11993003210676/2021 registered with Anjar
Police Station, Kutchh for the offence punishable
under Sections 269 and 188 of the of the Indian
Penal Code (“IPC” for short”), under Section 13(i)
Page 1 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
of the Gujarat Epidemic Disease Covid-2019
Regulations, 2020 and under Sections 51(a) and 56
of the Disaster Management Act, 2005 qua the
applicants.
3. The allegations leveled in the impugned FIR in
nutshell are as under,
On the birthday of the accused no.1, the
accused no.6 had booked Villa No.72 of the Fun
Royal Farm Resort (Rivera Farm) and arranged
birthday party, wherein other accused were invited
and all the accused, who are police officials,
have gathered without wearing mask and thereby
they have violated the provisions of the law
though being responsible officer of the police
department and thereby they have committed alleged
offences.
4. Heard learned advocate, Mr. Alok Thakkar for the
applicants and learned APP Mr. Soaham Joshi for
respondent no.1 – State of Gujarat. Though served,
none appears for the respondent no.2.
5. Learned advocate, Mr. Thakkar appearing for the
applicants submitted that the impugned FIR lodged
against the applicants is nothing but an abuse and
misuse of process of law, therefore, the
prosecution launched against the applicants is
required to be quashed and set aside. He submitted
that it is settled proposition of law that if any
prosecution is launched against the accused
persons against the statutory provision of law
and/or if any specific bar is imposed through
Page 2 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
specific provision of law and despite the said
fact, the prosecution is launched against the
accused persons, in that event, it would amount to
abuse of process of law and the said actions are
required to be quashed by exercising inherent
power under Section 482 of the CrPC is required to
be exercised to secure the ends of justice. He
submitted that herein in this case, as per the
case of the prosecution, the so-called incident
had occurred during the period between 15.05.2021
to 15.05.2021 and FIR has been lodged on
28.05.2021 for the alleged offences against total
six accused persons, who are police officers. He
submitted that in fact, specific charge is leveled
against them that they have assembled at a
particular place to celebrate the birthday of one
of the accused, however while doing so, they have
not followed the guidelines issued by the State
Government in stricto sensu manner and for
violation of the said guideline, the impugned FIR
has been lodged.
6. Learned advocate has referred to the Notification
dated 13.03.2020 issued by the Government of
Gujarat, Health & family Welfare Department,
Sachivalay, Gandhinagar produced on record at Page
No.17 of the compilation and submitted that at the
time of pandemic, certain guidelines were issued.
He referred to the Notification dated 11.05.2021
issued by the Additional Director General of
Police, Gandhinagar, copy of which is produced on
Page 3 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
record at Page No.21 of the compilation submitted
that by the said Notification, duration of night
curfew was extended and if the Hon’ble Court would
make a cursory glance upon list of the cities
mentioned in the said list, in that event, it
would be found out that name of Anjar city is not
there in the said list. He further submitted that
as per the said Notification, for performing the
marriage function, maximum 50 persons were allowed
to gather in open and/or closed premises, whereas
for performing the after death rituals, maximum 20
persons were allowed and except above, there is no
specific instructions mentioned in the said
Notification with regard to gathering of persons
for other functions, therefore by no stretch of
imagination, it can be said that the present
applicants have committed any breach of the
guidelines of the Notification issued by the State
Government from time to time. He submitted that
all the accused persons are working in the police
department and because of pandemic, they had
worked in a stand-by position all throughout and
used to remain in contact with each other,
therefore, the prosecution launched against the
applicants is required to be quashed and set
aside.
7. Learned advocate submitted that so far as
invocation of Section 188 of the IPC is concerned,
there is specific bar as provided under Section
195 of the CrPC and for invocation of charge under
Page 4 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
the said section, the prosecution has to register
private complaint instead of registering FIR. He
referred to Regulation 13 of Gujarat Epidemic
Diseases, Covid-19 Regulations, 2020 and submitted
that as per said Regulation, any person/
institution/ organization found violating any
provision of these regulations shall be deemed to
have committed an offence punishable under Section
188 of the IPC, in that event, the Commissioner of
Health, Family Welfare, Medical Services, Medical
Education & Research or District Collector of a
district shall be a competent authority for
initiating any proceeding under these regulations
for its violation. He, therefore, submitted that
in the present case, the complainant, who has
lodged the impugned FIR, is the Police Inspector
of Anjar Police Station, Gandhidham, therefore,
the said provision is not at all applicable in the
present case as there is specific bar as provided
under Section 195 of the CrPC. He submitted that
so far as the invocation of charge under the
provision of the Disaster Management Act, 2005, he
has placed reliance upon Section 71 of the said
provision and submitted that the language employed
in the said section are para material identical to
Section 195 of the CrPC and there is specific bar
against the institution of prosecution by
registering FIR against the guilty persons and
admittedly herein in this case on hand, the
impugned FIR has been lodged against the accused
Page 5 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
instead of filing private complaint, therefore,
the prosecution launched against the applicants is
required to be quashed and set aside.
8. At this stage, learned advocate submitted that
considering the principle of law laid down by the
Hon’ble Apex Court in case of State of Haryana Vs.
Bhajan Lal, reported in AIR 1992 SC 604 as well as
in case of R.P. Kapur Vs. State of Punjab,
reported in AIR 1960 SC 866 : 1960 Cri LJ 1239,
the prosecution launched against the applicant is
required to be quashed and set aside.
9. On the other hand, learned APP Mr. Maheta opposed
the present application with a vehemence and
submitted that specific allegations are leveled
against each accused persons and prima facie basic
and essential ingredients to constitute the
offence against the applicant are made out. He
further submitted that in fact, video of the
accused went viral on electronic media, which
clearly goes on to suggest the commission of
offence by the accused. He further submitted that
at the time of pandemic, situation was not in
control, therefore, the restriction was imposed by
issuing Notification and the applicants being the
police officials have violated the guideline
issued by the State Government and thereby they
have committed alleged offences. It is, therefore
urged that the present application may not be
entertained and it may be rejected.
10. I have given my thoughtful consideration to the
Page 6 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
submissions advanced by the learned advocates for
the respective parties. After hearing the learned
advocates for the respective parties and perusing
the contents of the FIR, this Court is of the
considered opinion that the complainant has tried
to misuse the machinery of criminal law. For
ascertaining as to whether any offence as alleged
in the FIR is established or not, this Court has
very minutely gone through the allegations and the
documents as pointed out by the respective
parties.
11. Before evaluating the contentions advanced on
behalf of the parties, it will be useful to
briefly notice the scope and ambit of the inherent
powers of the High Court under Section 482 of the
CrPC. The section itself envisages three
circumstances, under which, the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code; (ii) to prevent
an abuse of the process of court; and to otherwise
secure the ends of justice. Nevertheless, it is
neither possible nor discernible to lay down any
inflexible rule which govern the exercise of
inherent jurisdiction of the court. Undoubtedly,
the power possessed by the High Court under the
said provision is very wide, but is not unlimited.
Therefore, it has to be exercised sparingly,
carefully and cautiously, ex debito justitiae to
do real and substantial justice for which alone
the court exits. It needs little emphasis that the
Page 7 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
inherent jurisdiction does not confer any
arbitrary power on the High Court to act according
to whim or caprice. The power exists to prevent
abuse of authority and not to produce any justice.
12. In the case of R.P. Kumar (supra), the Supreme
Court had summarized some of the categories of
cases where the inherent power under Section 482
of the Code could be exercised by the High Court
to quash criminal proceedings against the accused.
These are; (i) where it manifestly appear that
there is a legal bar against the institution or
continuance of the proceedings e.g. want of
sanction; (ii) where 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.
13. In the case of G. Sagar vs. State of U.P.,
reported in (2000) 2 SCC 636, the Supreme Court
had opined as follows;
“Jurisdiction under Section 482 of the Code
has to be exercised with a great care. In
exercise of its jurisdiction High Court is
not to examine the matter superficially. It
is to be seen if a matter, which is
essentially of civil nature, has been given a
cloak of criminal offence. Criminal
proceedings are not a short cut of otherPage 8 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
remedies available in law. Before issuing
process a criminal court has to exercise a
great deal of caution. For the accused it is
a serious matter. This Court has laid certain
principles on the basis of which High Court
is to exercise its jurisdiction under Section
482 of the Code, Jurisdiction under this
Section has to be exercised to prevent abuse
of the process of any court or otherwise to
secure the ends of justice.”
14. A bare perusal of the contents of the FIR, it is
found out that at the time of pandemic, though
there were restriction on gathering, the accused
have arranged birthday party and gathered in one
room and the said moment was videographed, which
was got viral, therefore, the inquiry was made
then, the impugned FIR has been lodged. However it
is found out from bare perusal of the allegations
and accusations leveled against the applicant
herein are taken at their face value and accepted
in their entirety, in that event, they do not
prima facie constitute any offence or make out a
case against the accused as the basic, essential
and requisite ingredients for the alleged offences
are missing.
15. Before adverting to the rival submissions
canvassed on either side, it would be appropriate
to deal with the relevant provisions of law.
Clause (a) of sub-section (1) of Section 195
Cr.P.C. reads as under:
Page 9 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
“195 Prosecution for 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 (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; except on the
complaint in writing of the public servant
concerned or of some other public servant
to whom he is administratively
subordinate;.”
16. Thus from the above provision, it is clear that
section 195 of the CrPC is a sufficient protection
provided, which are in the mandatory form and
noncompliance of it would vitiate the prosecution.
Sub-section (1)(a)(i)(iii) of Section 195 of the
CrPC provides that the offences which are
punishable under Sections 172 to 188 of the IPC
would be taken cognizance by the Court only on a
complaint in writing to that Court by public
servant concerned or of some other public servant
Page 10 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
to whom he is administratively subordinate.
Section 2(d) of CrPC defines the term ‘complaint’
which means any allegation made orally or in
writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether
known or unknown, has committed an offence, but
does not include a police report. Section 2(r) of
CrPC given the meaning of police report, which
says, a report forwarded by a police officer to a
Magistrate under sub-section(2) of Section 173
CrPC. Therefore the law under Section 195 of the
CrPC provides for a complaint in writing before
the Court, for the Court to take cognizance of the
matter; filing of FIR by the police for the
offence punishable under Sections 172 to 188 of
IPC before the Police Station is bad in law. It
appears that proceedings under the present offence
is hit by Section 195 of the CrPC. It is a well
settled law that the invocation of Section 188 of
IPC is subject to the provisions of Section 195
Cr.P.C.
17. At this stage, I would like to place reliance upon
the judgment of the Hon’ble Supreme Court in case
of Saloni Arora Vs. State (Govt. Of NCT of Delhi)
reported in (2017) 3 SCC 286 referring to the case
of Daulat Ram Vs. State of Punjab, reported in AIR
1962 SC 1206, wherein the Hon’ble Supreme Court
while dealing with the provisions of Section 195
CrPC, has observed in Paragraph Nos.9 and 10 as
under:
Page 11 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
“9. As rightly pointed out by the learned
counsel for the parties on the strength of
law laid down by this Court in Daulat Ram
v. State of Punjab that in order to
prosecute an accused for an offence
punishable under Section 182 IPC, it is
mandatory to follow the procedure
prescribed under Section 195 of the Code
else such action is rendered void ab
initio.
10. It is apposite to reproduce the law laid
down by this Court in the case of Daulat
Ram (supra) which reads as under:
There is an absolute bar against the
Court taking seisin of the case under
S.182 I.P.C. except in the manner
provided by S.195 Crl.P.C. Section 182
does not require that action must
always be taken if the person who
moves the public servant knows or
believes that action would be taken.
The offence under S.182 is complete
when a person moves the public servant
for action. Where a person reports to
a Tehsildar to take action on averment
of certain facts, believing that the
Tehsildar would take some action upon
it, and the facts alleged in the
report are found to be false, it is
incumbent, if the prosecution is to bePage 12 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
launched, that the complaint in
writing should be made by the
Tehsildar, as the public servant
concerned under S.182, and not leave
it to the police to put a charge-
sheet. The complaint must be in
writing by the public servant
concerned. The trial under S.182
without the Tehsildar’s complaint in
writing is, therefore, without
jurisdiction ab initio.”
(Emphasis supplied)
18. A useful reference can be made to the judgment of
the Coordinate Bench of this Court in case of
Govardhankumar Thakoredas Asrani Vs. State of
Gujarat, reported in 2018 (1) GLH 63, wherein the
Coordinate Bench of this Court has considered the
judgment of the Hon’ble Supreme Court in case of
C. Muniappan & Ors. Vs. State of Tamil Nadu,
reported in (2010) 9 SCC 567 as also the ratio
laid down in various judgments in connection to
the provision of section 195 CrPC and made
observations in Paragraph No.48, which read as
under:
“27. xxx xxx xxx
28. Section 195(1)(a)(i) CrPC bars the court
from taking cognizance of any offence
punishable under Section 188 IPC or
abetment or attempt to commit the same,
unless, there is a written complaint by thePage 13 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
public servant concerned for contempt of
his lawful order. The object of this
provision is to provide for a particular
procedure in a case of contempt of the
lawful authority of the public servant. The
court lacks competence to take cognizance
in certain types of offences enumerated
therein. The legislative intent behind such
a provision has been that an individual
should not face criminal prosecution
instituted upon insufficient grounds by
persons actuated by malice, ill-will or
frivolity of disposition and to save the
time of the criminal courts being wasted by
endless prosecutions. This provision has
been carved out as an exception to the
general rule contained under Section 190
Cr.PC that any person can set the law in
motion by making a complaint, as it
prohibits the court from taking cognizance
of certain offences until and unless a
complaint has been made by some particular
authority or person. Other provisions in
the Cr.PC like sections 196 and 198 do not
lay down any rule of procedure, rather,
they only create a bar that unless some
requirements are complied with, the court
shall not take cognizance of an offence
described in those Sections. (vide Govind
Mehta v. The State of Bihar, AIR 1971 SCPage 14 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
1708; Patel Laljibhai Somabhai v. The State
of Gujarat, AIR 1971 SC 1935; Surjit Singh
& Ors. v. Balbir Singh, (1996) 3 SCC 533;
State of Punjab v. Raj Singh & Anr., (1998)
2 SCC 391; 2 K. Vengadachalam v. K.C.
Palanisamy & Ors., (2005) 7 SCC 352; and
Iqbal Singh Marwah & Anr. v. Meenakshi
Marwah & Anr., AIR 2005 SC 2119).
29. The test of whether there is evasion or
noncompliance of Section 195 Cr.PC or not,
is whether the facts disclose primarily and
essentially an offence for which a
complaint of the court or of a public
servant is required. In Basir-ul-Haq & Ors.
v. The State of West Bengal, AIR 1953 SC
293; and Durgacharan Naik & Ors v. State of
Orissa, AIR 1966 SC 1775, this Court held
that the provisions of this Section cannot
be evaded by describing the offence as one
being punishable under some other sections
of IPC, though in truth and substance, the
offence falls in a category mentioned in
Section 195 Cr.PC. Thus, cognizance of such
an offence cannot be taken by mis-
describing it or by putting a wrong label
on it.
30. In M.S. Ahlawat v. State of Haryana & Anr.,
AIR 2000 SC 168, this Court considered the
matter at length and held as under :
“….Provisions of Section 195 CrPC are
Page 15 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
mandatory and no court has
jurisdiction to take cognizance of any
of the offences mentioned therein
unless there is a complaint in writing
as required under that section.”
(Emphasis added)
31. In Sachida Nand Singh & Anr. v. State of
Bihar & Anr., (1998) 2 SCC 493, this Court
while dealing with this issue observed as
under :
“7. ..Section 190 of the Code empowers “any
magistrate of the first class” to take
cognizance of “any offence” upon
receiving a complaint, or police
report or information or upon his own
knowledge. Section 195 restricts such
general powers of the magistrate, and
the general right of a person to move
the court with a complaint to that
extent curtailed. It is a well
recognised canon of interpretation
that provision curbing the general
jurisdiction of the court must
normally receive strict interpretation
unless the statute or the context
requires otherwise.” (Emphasis
supplied)
32. In Daulat Ram v. State of Punjab, AIR 1962
SC 1206, this Court considered the nature
of the provisions of Section 195 Cr.PC. In
Page 16 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
the said case, cognizance had been taken on
the police report by the Magistrate and the
appellant therein had been tried and
convicted, though the concerned public
servant, the Tahsildar had not filed any
complaint. This Court held as under : “The
cognizance of the case was therefore
wrongly assumed by the court without the
complaint in writing of the public servant,
namely, the Tahsildar in this case. The
trial was thus without jurisdiction ab
initio and the conviction cannot be
maintained. The appeal is, therefore,
allowed and the conviction of the appellant
and the sentence passed on him are set
aside.”
(Emphasis added)
33. Thus, in view of the above, the law can be
summarized to the effect that there must be
a complaint by the pubic servant whose
lawful order has not been complied with.
The complaint must be in writing. The
provisions of Section 195 Cr.PC are
mandatory. Non-compliance of it would
vitiate the prosecution and all other
consequential orders. The Court cannot
assume the cognizance of the case without
such complaint. In the absence of such a
complaint, the trial and conviction will be
void ab initio being without jurisdiction.
Page 17 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
34. Learned counsel for the appellants have
submitted that no charge could have been
framed under Section 188 IPC in the absence
of a written complaint by the officer
authorised for that purpose, the conviction
under Section 188 IPC is not sustainable.
More so, it falsifies the very genesis of
the case of the prosecution as the
prohibitory orders had not been violated,
no subsequent incident could occur. Thus,
entire prosecution case falls.
35. Undoubtedly, the law does not permit taking
cognizance of any offence under Section 188
IPC, unless there is a complaint in writing
by the competent Public Servant. In the
instant case, no such complaint had ever
been filed. In such an eventuality and
taking into account the settled legal
principles in this regard, we are of the
view that it was not permissible for the
trial Court to frame a charge under Section
188 IPC. However, we do not agree with the
further submission that absence of a
complaint under Section 195 Cr.PC falsifies
the genesis of the prosecution’s case and
is fatal to the entire prosecution case.
36. There is ample evidence on record to show
that there was a prohibitory order; which
had been issued by the competent officer
one day before; it had been given due
Page 18 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
publicity and had been brought to the
notice of the public at large; it has been
violated as there is no denial even by the
accused persons that there was no `Rasta
Roko Andolan’. Unfortunately, the agitation
which initially started peacefully turned
ugly and violent when the public transport
vehicles were subjected to attack and
damage. In such an eventuality, we hold
that in case the charges under Section 188
IPC are quashed, it would by no means have
any bearing on the case of the prosecution,
so far as the charges for other offences
are concerned.”
19. Even in a judgment of the Hon’ble Supreme Court in
case of State of Punjab Vs. Raj Singh & Anr.,
reported in 1998 Crl. L.J. 1104, the Hon’ble
Supreme Court took the view that the statutory
power of the police to investigate under the CrPC
is not in any way controlled or circumscribed by
section 195 CrPC. The relevant observations is
quoted herein below:
“We are unable to sustain the impugned
order of the High Court quashing the F.I.R.
lodged against the respondents alleging
commission of offences under Sections 467
and 468 I.P.C. by Chem in course of the
proceeding of a civil suit, on the ground
that Section 195 (1) (b) (ii) Cr.P.C.
prohibited entertainment of andPage 19 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
investigation into the same by the police.
From a plain reading of Section 195 Cr.P.C.
it is manifest that it comes into operation
at the stage when the Court intends to take
cognizance of an offence under Section
190(1) Cr. P.C.; and it has nothing to do
with the statutory power of the police to
investigate into an F.I.R. which discloses
a cognisable offence, in accordance with
Chapter XII of the Code even if the offence
is alleged to have been committed in, or in
relation to, any proceeding in Court. In
other words, the statutory power of the
Police to investigate under the Code is not
in any way controlled or circumscribed by
Section 195 Cr.P.C. It is of course true
that upon the charge-sheet (challan), if
any, filed on completion of the
investigation into such an offence the
Court would not be competent to take
cognizance thereof in view of the embargo
of Section 19591) (b) Cr. P. C. , but
nothing therein deters the Court from
filing a complaint for the offence on the
basis of the F.I.R. (filed by the aggrieved
private party) and the materials collected
during investigation, provided it forms the
requisite opinion and follows the procedure
laid down tin section 340 Cr. P.C. The
judgment of this Court in Gopal KrishnaPage 20 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
Menon and Anr. Vs. D. Raja Reddy [AIR 1983
SC 1053], on which the High Court relied,
has no manner of application to the facts
of the instant case for there cognizance
was taken on a private complaint even
though the offence of forgery was committed
in respect of a money receipt produced in
the Civil Court and hence it was held that
the Court could not take cognizance on such
a complaint in view of Section 195 Cr.P.C.”
20. Considering the controversy involved in the
petition, it appears that during the pandemic of
Covid-19, the lock-down was declared. Pursuant to
the order of Central Government, State Government
has issued Notification imposing restrictions upon
the public at large to curtail the spread of
disease. In case of failure of any of direction of
Notification, it may be considered as the
violation of Section 188 of the Indian Penal Code,
1860 as well as Sections 51 to 58 of the Disaster
Management Act. It appears that obviously, both
the offences are bailable and FIR is lodged by the
Police Inspector, but it is needless to say that
the said FIR does not fall within the definition
of 2(d) as defined in the complaint and written
complaint is not filed before any Magistrate,
which is an admitted fact.
21. In case of Govardhankumar Thakoredas Asrani Vs.
State of Gujarat reported in 2018 (1) G.L.H. 63,
wherein, the Coordinate Bench of this Court has
Page 21 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
observed as under:-
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 chargesheet 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.
40. xxx xxx xxx
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 spliting them
up and proceeding further against the
accused for the other distinct offences.
This would depend on the facts of each
Page 22 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
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.
42. xxx xxx xxx
43. Thus, according to the decision of the
Supreme Court refered 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.
44. xxx xxx xxx
Page 23 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
45. xxx xxx xxx
46. In some of the applications before me, the
only offence is either section 186 or 188
of the IPC. In such type of cases, there
should not be any difficulty in quashing
the prosecution in view of the bar of
section 195 of the Cr.P.C. However, there
are few cases on hand, in which, over and
above sections 186 or 188 of the I.P.C, the
other offences are also there which are not
covered under section 195 of the Cr.P.C. It
is only in such cases, the court has to be
careful. I have noticed that in some of the
cases, there is a charge of section 353 of
the IPC along with section 186 of the IPC.
I am of the view that the very act of
obstruction lies in the alleged assault and
use of criminal force. In truth and
substance, such an offence would fall in
the category of sections mentioned in
section 195 of the Code and it is not open
to byepass its provisions even by choosing
to prosecute under section 353 of the IPC
only. There is no scope, in any of the
matters on hand, having regard to the
materials on record, to split up the
offences so as to avoid the bar of section
195 of the Cr.P.C as all the offences can
be said to have been committed in the
course of one transaction. All the offences
Page 24 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
can be said to have been an integral part
of one transaction.
22. I have also considered Gujarat Epidemic Diseases,
Covid-19 Regulations, 2020, upon which reliance
has been placed by learned advocate for the
applicant, more particularly, Regulation 13
thereof, which provides that if any person/
institution/ organization found violating any
provision of these regulations shall be deemed to
have committed an offence punishable under Section
188 of the IPC, in that event, the Commissioner of
Health, Family Welfare, Medical Services, Medical
Education and Research or District Collector of a
district shall be a competent authority for
initiating any proceeding under these regulations
for its violation. However in the facts of the
present case on hand, admittedly, the complainant
in the present case is the Police Officer, who is
not a competent officer as provided under the Act.
23. It would be apposite to refer the decisions of
this Court as well as the Honble Apex Court in
case of (i) Mandip Gopalbhai Zalavadiya Vs. State
of Gujarat & Anr. passed in Criminal Misc.
Application No.16178 of 2021 dated 26.06.2024 (ii)
Saloni Arora Vs. State (Govt of NCT of Delhi)
reported in 2017(0) AIJEL-SC 59615 and (iii)
Kandhal Sarman Jadeja Vs. State of Gujarat
reported in 2019 (0) AIJEL-HC 240222.
24. It is necessary to consider whether the power
conferred by the High Court under section 482 of
Page 25 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
the Code of Criminal Procedure is warranted. It is
true that the powers under Section 482 of the Code
are very wide and the very plenitude of the power
requires great caution in its exercise. The Court
must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The
High Court being the highest court of a State
should normally refrain from giving a prima facie
decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has
not been collected and produced before the Court
and the issues involved, whether factual or legal,
are of magnitude and cannot be seen in their true
perspective without sufficient material. Of
course, no hard-and-fast rule can be laid down in
regard to cases in which the High Court will
exercise its extraordinary jurisdiction of
quashing the proceeding at any stage as the Honble
Supreme Court has decided in the case of Central
Bureau of Investigation vs. Ravi Shankar
Srivastava, IAS & Anr., reported in AIR 2006 SC
2872 and in case of Bhajan Lal (supra), the Apex
Court has set out the categories of cases in which
the inherent power under Section 482 CrPC can be
exercised and held in para 102 as under:
102. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles ofPage 26 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
law enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Art. 226 or the
inherent powers under Section 482 of the
Code which we have extracted and reproduced
above, we give the following categories of
cases by way of illustration wherein such
power could be exercised either to prevent
abuse of the process of any court or
otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and
sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases
wherein such power should be exercised :
(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
engrafted 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 inPage 27 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATIONR/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
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 mala fide
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.
25. Thus in view of the aforesaid observations made by
the Hon’ble Supreme Court as well as this Court in
the aforesaid decisions, I am of the considered
opinion that even if the allegations levelled
against the applicant in the impugned FIR are
taken at their face value and accepted in their
entirety, keeping in view the facts of the present
case and the penal provisions, they do not prima
facie constitute any offence or make out a case
against the accused persons, as per the parameters
set out by the Hon’ble Apex Court in the case of
Bhajan Lal (supra) and in the case of R.P. Kapur
(supra).
26. Further, the scope and ambit of inherent powers of
the Court under Section 482 CrPC or the extra-
ordinary power under Article 226 of the
Constitution of India, now stands well defined by
series of judicial pronouncements. Undoubtedly,
this Court has inherent power to do real and
Page 28 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
substantial justice, or to prevent abuse of the
process of the Court. At the same time, the Court
must be careful to see that its decision in
exercise of this power is based on sound
principles. The inherent power vested in the Court
should not be exercised to stifle a legitimate
prosecution. However, this Court can exercise its
inherent power or extra-ordinary power if it comes
to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court, or the ends of justice require that the
proceeding ought to be quashed.
27. Thus, if the facts of the present case are to be
examined in the context of the aforesaid
observations made by the Hon’ble Apex Court, I am
of the considered opinion that the chances of an
ultimate conviction of the applicant on the basis
of the facts of the present case are bleak and
therefore continuation of criminal prosecution
against the applicant is nothing but sheer misuse
of process of the Court. Thus, considering the
ratio enunciated by the Hon’ble Apex Court in
catena of decisions, I am of the considered
opinion that the FIR in question deserves to be
quashed qua the applicant.
28. It is not in dispute that in this case, the
prosecution while initiating the action against
the appellant did not take recourse to the
procedure prescribed under Section 195 of the
CrPC. It is for this reason, in my considered
Page 29 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
NEUTRAL CITATION
R/CR.MA/10499/2021 CAV JUDGMENT DATED: 06/03/2025
undefined
opinion, the action taken by the prosecution
against the appellant insofar as it relates to the
offence under Section 188 IPC is concerned, is
rendered void ab initio being against the law laid
down in the case of Daulat Ram (supra) quoted
above.
29. In the result, the application succeeds and is
hereby allowed. Accordingly, the impugned First
Information Report being C.R. No.11993003210676/
2021 registered with Anjar Police Station, Kutchh
and all other consequential proceedings arising
out of said FIR are hereby quashed and set qua the
applicants.
30. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
Page 30 of 30
Uploaded by PATIL GAUTAMBHAI GOPALBHAI(HC00190) on Thu Mar 06 2025 Downloaded on : Sat Mar 08 00:59:58 IST 2025
[ad_1]
Source link