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Gujarat High Court · body

2020 DIGILAW 122 (GUJ)

Haji Osman Haji Suleman Bhaya v. State of Gujarat

2020-01-22

A.C.RAO

body2020
JUDGMENT : A.C. RAO, J. 1. The present applications have been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) for quashing and setting aside the FIRs dated 18.05.2015 lodged by the respondent No. 2-original complainant being II-C.R. No. 12 of 2015 and II-C.R. No. 13 of 2015 respectively registered before Salaya Marine Police Station, Devbhumi Dwarka, for the offence punishable under Section 188 of the Indian Penal Code (for short “the IPC”). Since both the applications arise out of the common offence, the same are heard and decided analogously by a common judgment. 2. It is alleged by the respondent No. 2-original complainant, who is a police constable, in the FIR that on 18.05.2015, when the complainant and other police staff were on petrolling duty, they found labourers from other state working as a daily wager and they had not informed the police as per the notification of the Additional District Magistrate, Devbhumi Dwarka, being notification No. DM/DCH/ON/182/2015 dated 30.03.2015 and thereby committed the alleged offence. 3. Learned advocate Mr. Dipak Sindhi, appearing on behalf of the applicants in both the applications, has contended that the FIR against the applicants is a gross misuse and abuse of the process of law. He has further contended that as per Section 195 of the Cr.P.C. proceedings under Section 188 of the IPC can only be initiated on the basis of a complaint in writing of the public servant concerned made to the Court or to some other public servant to whom he is administratively subordinate. Section 195(1) of the Cr.P.C. restrains the Court from taking cognizance of any offence punishable under Section 188 of the IPC unless a complaint in writing is made to it by the public servant concerned. In other words, no FIR can be registered by the police. It would not be open for the police to register a case against the offender for the offence under Section 188 of the IPC and then to submit a report under Section 173 of the Cr.P.C. to the concerned Court. 3.1 In this regard, the learned advocate for the applicants has relied on the judgment of Punjab and Haryana High Court in the case of Jiwan Kumar vs. State of Punjab and Others, (2008) Cri. L.J. 3576, wherein it is held as under: “8. 3.1 In this regard, the learned advocate for the applicants has relied on the judgment of Punjab and Haryana High Court in the case of Jiwan Kumar vs. State of Punjab and Others, (2008) Cri. L.J. 3576, wherein it is held as under: “8. Coming to the attack of the petitioner in regard to the registration of the FIR, it may be noticed that proceedings under Section 188 IPC can only be initiated on the basis of a complaint in writing of the public servant concerned made to the court or to some other public servant to whom he is administratively subordinate. Section 195(1) of the Code restrains the court from taking cognizance of any offence punishable under Section 188 IPC unless a complaint in writing is made to it by the public servant concerned. In other words, no FIR can be registered by the police. It would not be open to the police to register a case against the offender for offence under Section 188 IPC and then to submit a report under Section 173 of the Code to the concerned court. Reliance in this regard can be placed on Jagtar Singh vs. Union Territory, Chandigarh 1996 (1) RCR (Crl.) 669, wherein this Court held as under: “These facts are not disputed. Language of Section 195(1) of the Code does not leave scope for any ambiguity and is the section which has to be construed strictly. In accordance with the settled principles of interpretation applicable to criminal jurisprudence the provisions of Criminal Procedure Code or penal laws have to be strictly construed so as to be given meaning except what is intended by the Legislature in the language used itself. The relevant portion of Section is that “No court shall take cognizance except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.” The intention appears to be clear that where an offence is committed under Section 188 IPC, the legislature has made it obligatory that the public servant before whom such an offence is committed, he will file a complaint to the Magistrate and the cognizance of the offence by the concerned court is dependent upon the complaint in writing by such officer or an officer superior to such officer. The counsel for the petitioner has relied upon Sawaran Singh vs. State of Punjab, 1994 (3) Recent C.R. 352 and Bhagat Ram vs. State of Punjab, 1991 (1) Recent C.R. 192. In both these cases the court has indicated that the scope of Section 195(1) of the Code does not contemplate investigation in a normal way by the police and filing of the challan, but the complaint has to be presented directly to the concerned court. In the present case though the complaint is stated to be addressed to the court, but as it appears it was not presented to the court and the court did not pass any orders at that stage.” 9. It is admitted case of respondent No. 3 that FIR No. 128 (P3) was registered against the petitioner on 16.6.2005 under Section 188 IPC. The petitioner was thereafter arrested and interrogated. After the completion of the investigation, the challan (final report under Section 173 of the Code) was presented against the petitioner before learned Chief Judicial Magistrate, Mansa on 20.12.2005 and the charge was framed on 20.1.2006. Further that the case is now fixed for recording of prosecution evidence. 10. It is, thus, clear that the proceedings against the petitioner under Section 188 IPC have been initiated on the basis of the FIR and not on the basis of any complaint in writing of the public servant concerned as is required by Section 195(1)(a) of the Code. The registration of FIR and the launching of proceedings thereafter against the petitioner is not permitted by the Code and thus, cannot be allowed to be sustained.” 3.2 The learned advocate for the applicants has also relied on the judgment of this Court in the case of Sureshbhai Damjibhai vs. State and Another in Criminal Misc. Application No. 12768 of 2012, decided on 15.11.2014, wherein the same view is taken. 3.3 The learned advocate for the applicants has also relied on the judgments of the following High Courts, wherein the same view is taken: (1) Jharkhand High Court in the case of Ghulam Subhani vs. State of Bihar and Others, (2005) Cri. L.J. 3067 (2) Chhattisgarh High Court in the case of Bhaiyalal Patel and Another vs. State of Chhattisgarh, (2012) Cri. L.J. 2812 (3) Kerala High Court in the case of Nizam vs. State of Kerala, (2014) Cri. L.J. 3067 (2) Chhattisgarh High Court in the case of Bhaiyalal Patel and Another vs. State of Chhattisgarh, (2012) Cri. L.J. 2812 (3) Kerala High Court in the case of Nizam vs. State of Kerala, (2014) Cri. L.J. 2343 (4) Allahabad High Court in the case of Mata Bhikh and Others vs. State, (1980) Cri. L.J. 575 4. On the other hand, the learned APP Ms. C.M. Shah appearing for the State, has vehemently opposed these applications and contended that the charge-sheet has already been filed against the applicants in both the applications and therefore, the FIRs cannot be quashed. 5. Having heard the learned advocates for the respective parties and having gone through the materials on record, it appears that there is very thin line in persuading the provisions of Sections 188 of the IPC and Section 195 of the Cr.P.C. which obviously is not the routine tasks, so that it may easily be kept in mind while filing any such FIR by the police authority or taking cognizance by the learned Magistrate. In the case on hand, if we take the FIRs as it is, there is no complaint by the owner/administrator in whose factory these applicants were working. It is obvious to follow any notification/gazette being published by any competent authority/policy authority. As in the case on hand, there is a Notification issued under Section 144 of the Cr.P.C. by the office of the District Magistrate which provides to supply information regarding the persons coming from outside of the State and doing any kind of labour works, to the concerned police station. This notification appears to have been issued for the safety purpose of the persons on whose residence/factory/field, such workers/labourers, who are outsiders, are doing labour work. However, it is not obligatory to such employers/owners at whose residence/factory such persons are doing labour work which is clearly contemplating in Section 188 of the IPC, which reads as under: “188. This notification appears to have been issued for the safety purpose of the persons on whose residence/factory/field, such workers/labourers, who are outsiders, are doing labour work. However, it is not obligatory to such employers/owners at whose residence/factory such persons are doing labour work which is clearly contemplating in Section 188 of the IPC, which reads as under: “188. Disobedience to order duly promulgated by public servant - Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation - It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration - An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order and thereby causes danger of riot. A has committed the offence defined in this section.” 5.1 Even, Section 195 of the Cr.P.C. restrains the Magistrate to take even cognizance of such complaints. Section 195 of the Cr.P.C. reads as under: “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). (ii) of any abetment of, or attempt to commit, such offence. (ii) of any abetment of, or attempt to commit, such offence. (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.” Thus, it is mandatory to file complaint by the public servant concerned for the offence punishable under Section 188 of the IPC, but, in the case on hand, the police constable has filed the complaint, hence, the applicants have made out the case where the jurisdiction of this Court is required to be exercised. 5.2 For the foregoing reasons, the present applications are required to be allowed and are hereby allowed and FIRs dated 18.05.2015 being II-C.R. No. 12 of 2015 against Haji Osman Haji SulemanBhaya and II-C.R. No. 13 of 2015 against Rizwan S/o Haji Abdul Bhaya (Vagher) registered before Salaya Marine Police Station, Devbhumi Dwarka, for the offence punishable under Section 188 of the Indian Penal Code and the proceedings emanating therefrom are quashed and set aside. Rule is made absolute accordingly in both the applications.