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2022 DIGILAW 1636 (GUJ)

Hemantbhai Ranjitrai Desai v. State Of Gujarat

2022-11-28

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seek to invoke the inherent powers of this Court praying for quashing of the proceedings of the Special Atrocity Case No.2 of 2018 pending before the Court of the learned 4th Ad-hoc Additional District Judge, Ahwa arising from the F.I.R. being C.R. No.II-22 of 2018 filed before the Saputara Police Station, District-Dang, for the offence punishable under Sections-186, 504, 506(2) of the I.P.C. 2. It appears that the allegations with regard to atrocity came to be added against the applicant herein on 23.10.2018 invoking Section-3(10) of the Atrocity Act. 3. Being aggrieved by the aforesaid, the applicant herein has approached this Court seeking quashment of the aforesaid FIR. The aforesaid F.I.R. being C.R. No.II-22 of 2018 filed before the Saputara Police Station, District-Dang, culminated into criminal case and consequently, Criminal Case being Special Atrocity Case No.2 of 2018 registered, wherein charges have been framed and the same is at the stage of evidence of prosecution. 4. Brief facts as stated by the applicant herein framing adjudication of the present case reads thus:- 4.1 The applicant herein was going to attend one function on 22.09.2019 and that function was organized by one Manav Kalyan Trust. During the time of travelling with his driver Kantilal Jivanji Vijekar and other person Devendra Ishwerlal Desai, respondent No.2 – complainant and other police personnel have restrained to proceed ahead. On the say of incident, the Hon’ble Governor of Gujarat State was also attended the said function and there was heavy traffic. As per the say of respondent no.2- complainant and other police personnel have restrained the present applicant and at that time, said police personnel have abused and used filthy language. It is further submitted that at that time, false and vague allegations came to be levelled by respondent no.2. It is further alleged in the complaint that present applicant obstructs during the time of service of respondent no.2 and abuses also by present applicant and therefore respondent no.2 has lodged the complaint on 22.09.2018 before the Saputara Police Station being C.R. No.II-22 of 2018 for the offence punishable under Sections-186, 504 and 506(2) of the Indian Penal Code. 5. Mr. 5. Mr. Apurva Kapadia, learned advocate appearing for the applicant herein vehemently submitted that the impugned FIR would not be maintainable against the applicant herein in view of the bar under Section-195 of the Cr.P.C. Mr. Kapadia, learned advocate further submitted that the offence as arising out of the same complaint and therefore, the offences under the provisions of Indian Penal Code and the Atrocity Act cannot be separated because the said offence is one offence arising out of same incident and in view of above, there is bar under Section-195 of the Cr.P.C. while complaint could not be maintainable qua Section-186, which has been invoked against the applicant herein . The same would also not maintainable qua the Sections-504 and 506(2) of I.P.C. and Section-3(1)(r)(s) of the Atrocities Act. 6. Placing reliance on the same, Mr. Kapadia, learned advocate submitted that this Court in exercise of extraordinary jurisdiction can quash the impugned FIR being C.R. No.II-22 of 2018 filed before the Saputara Police Station, as holding that the complaint is not maintainable qua the applicant herein in view of the bar under Section-195 of the Cr.P.C. Mr. Kapadia, learned advocate also submitted that the impugned complaint does not invoke the provisions of Section- 504 and 506(2) of the IPC. The complaint of the complainant would also not be maintainable under the provisions of Atrocities Act on merits as such word never uttered by the applicant herein in public domain and the applicant was not aware that the respondent no.2 was belonging to scheduled caste or scheduled tribes. 7. Per contra, Ms. Vrunda Shah, learned APP placed reliance on the affidavit-in-reply filed by the respondent authority, which is reproduced at Page-69. Ms. Shah, learned APP at the outset submitted that impugned FIR has culminated into a chargesheet and the charges have been framed, which has resulted into Special Atrocity Case No.2 of 2018. The status of the said complaint is duly produced at Page-73. Ms. Ms. Shah, learned APP at the outset submitted that impugned FIR has culminated into a chargesheet and the charges have been framed, which has resulted into Special Atrocity Case No.2 of 2018. The status of the said complaint is duly produced at Page-73. Ms. Shah, learned APP submitted that even otherwise the respondent no.2 has invoked the provisions of under Section-3(1)(r)(s) of the Atrocities Act after recording the statement of the witnesses, wherein, they corroborated to the occurrence and use of abusive language by the applicant – accused and they are the G.R.D. being Gram Rakshak Dal, who are Ghanshyambhai Somabhai Deshmukh and Lakshmanbhai Janubhai Gaikwad, who also corroborate such use of abused words and attract the provisions of atrocities act. 8. At this stage, this Court refer to and rely upon the judgment of Hon’ble Apex Court in the case of Bharat Parikh Vs. C.B.I. & Anr. reported in 2008 AIR SCW 4842, The relevant paragraph reads thus:- “16. With regard to the second proposition regarding the High Court’s powers to look into materials produced on behalf of or at the instance of the accused for the purpose of invoking its powers under Section 482 of the Code for quashing the charges framed, it has to be kept in mind that after the stage of framing charge evidence has to be led on behalf of the prosecution to prove the charge if an accused pleads not guilty to the charge and/or charges and claims to be tried. It is only in the exceptional circumstances enumerated in State of Haryana vs. Bhajan Lal 1992 Suppl.(1) SCC 335, that a criminal proceeding may be quashed to secure 11 the ends of justice, but such a stage will come only after evidence is led, particularly when the prosecution had produced sufficient material for charges to be framed. As observed in Debendra Nath Padhi’s case (supra) at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused has to be confined to the material produced by the investigating agency. As observed in Debendra Nath Padhi’s case (supra) at the stage of framing charge roving and fishing inquiry is impermissible and a mini trial cannot be conducted at such stage. At the stage of framing of charge the submissions on behalf of the accused has to be confined to the material produced by the investigating agency. The accused will get an opportunity to prove the documents subsequently produced by the prosecution on the order of the Court, but the same cannot be relied upon to re-open the proceedings once charge has been framed or for invocation of the High Court’s powers under Section 482 of the Code of Criminal Procedure.” 9. Indisputably, the applicant herein was going to attend one function on 22.09.2019, which was organized by one Manav Kalyan Trust. The applicant was travelling with his driver Kantilal Jivanji Vijekar and other persons, where Devendra Ishwerlal Desai, respondent No.2 – complainant and other police personnel have restrained the applicant herein to proceed ahead. On the day of incident, the Hon’ble Governor of Gujarat State was also present in the said function and there was heavy traffic. As per the say of respondent no.2- complainant and other police personnel have restrained the present applicant and at that time, said police personnel have abused and used filthy language. It is alleged that respondent no.2 obstructed the applicant herein and in-turn, uttered abusive language, which culminated into filing of FIR being C.R. No.II-22 of 2018 on 22.09.2018 before the Saputara Police Station for the offence punishable under Sections-186, 504 and 506(2) of the Indian Penal Code. 10. It is vehemently submitted by Mr. Kapadia, learned advocate appearing for the applicant that the charge under the Atrocities Act was at a later stage. 11. The facts being undisputed and considering the settled position of law, there is a bar under Section-195 of the Cr.P.C. to take cognizance of offence punishable under Section-186 of the IPC. Section-195 reads thus:- 195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. 11. The facts being undisputed and considering the settled position of law, there is a bar under Section-195 of the Cr.P.C. to take cognizance of offence punishable under Section-186 of the IPC. Section-195 reads thus:- 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; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that- (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed. 12. It is apposite to refer the position of law referred in Special Criminal Application (Quashing) No.2908 of 2015 in Paragraph-4 to 8, which reads thus:- “4. On conclusion of the investigation the charge- sheet was filed and the Court took cognizance upon the said chargesheet. 5. The entire prosecution against the accused persons should fail on the short ground that no cognizance could have been taken by the Trial Court for the offence punishable under Sections 186 and 188 of the Indian Penal Code upon a police report in view of the specific bar under Section 195 of the Criminal Procedure Code. 6. The point raised in this writ-application is squarely covered by the decision of the Supreme Court in the case of State of U.P. v. Sureshchandra Srivastava, AIR 1984 SC 1108 . 7. The said judgment of the Supreme Court was considered by a learned Single Judge of this Court in the case of Ramji Bhika Koli v. State of Gujarat, 1999 (1) GLH 203 . I may quote the observations made by the learned Single Judge as under:- 8. 7. The said judgment of the Supreme Court was considered by a learned Single Judge of this Court in the case of Ramji Bhika Koli v. State of Gujarat, 1999 (1) GLH 203 . I may quote the observations made by the learned Single Judge as under:- 8. It is undisputed that allegations made in the complaint against present petitioners include allegations in respect to offence made punishable under Section 186 of IPC. It is true that petitioners are also charged with other offences like offences made punishable under Sections 143, 147, 148, 149, 332, 333 and 307 of IPC, which are not covered under Section 195. However, it is well accepted proposition of law that where an accused commits some offences which are separate and distinct from those contained in Section 195; Section 195 will affect only the offences mentioned therein unless such other offences form an integral part of the same so as to amount to offences committed as a part of the same transaction. That in such case the other offences would also fall within the ambit of Section 195 of the Code. That in the instant case if the complaint recorded as FIR is read as a whole the petitioners have formed unlawful assembly with an object to resist a prohibition raid carried out by PSI O.M. Raval and his squad by using force with deadly weapons and causing rioting and even making an attempt on life of PSI O. M. Raval, in prosecution of the common object to prevent the raiding party to enter into the house of petitioner No. 1 and to carry out the raid in due discharge of their duty. That thereby entire prosecution of voluntary causing obstruction to the public servant by forming unlawful assembly with an object to resist the same and using deadly weapon to cause riot and even to make an attempt on life of the PSI who led the raiding party is a single transaction and integral part of the offence constituting and made punishable under Section 186 of IPC. In other words, the offences charged against the petitioners under Sections 143, 147, 148, 149, 332, 333 and 307 of IPC, cannot be split from the complaint for a separate offence in the facts and circumstances of the present case, and thereby cognizance in respect to said offences are also barred under Section 195(1)(a)(i) of the Code, as held by Supreme Court in the case reported vide AIR 1984 SC 1108 :(1984 Cri LJ 926). 9. It may be noted that learned Addl. Sessions Judge while passing the impugned order has relied on observations made by High Court of Kerala in the matter of M. Chacko v. State of Kerala reported vide 1985 Cri LJ 120. That learned Addl. Sessions Judge appears to have missed the relevant portion as stated by High Court of Kerala in the said matter vide para. 9 as observed here in under: However, the position may be different when during the course of the same transaction offences falling within the two categories are committed. In such cases, it may not be possible to split up the transaction and to hold that there can be valid prosecution for offences not mentioned in Section 195 of the Code, without written complaint of the public authority or the Court, as the case may be. At the same time, if the facts give rise to distinct offences, some attracting the operation of Section 195 and others not so, the bar can operate only regarding the former and not regarding the latter. 8. In view of the above this application is allowed. The further proceedings of the Criminal Case No.308 of 2015, pending in the Court of the learned JMFC, Mangrol are hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated. Rule is made absolute. Direct service is permitted.” 13. Considering the aforesaid ratio as laid down by the Hon’ble Apex Court, in view of this Court, because there is a bar under Section-195 of the Code, certainly no cognizance could have been taken under Section-186 of the Code. However, once the trial has commenced by invoking provisions under Section-504, 506(2) of the I.P.C. and the provisions of Atrocities Act, the same be continued in accordance with law. It is open for the applicant herein to take out steps before the concerned Court as permissible under law. However, once the trial has commenced by invoking provisions under Section-504, 506(2) of the I.P.C. and the provisions of Atrocities Act, the same be continued in accordance with law. It is open for the applicant herein to take out steps before the concerned Court as permissible under law. The application stands allowed to the aforesaid extent by quashing complaint under Section-186 of the Code. However, the Criminal Case being Special Atrocity Case No.2 of 2018 pending before the 4th Ad-hoc Additional District Judge, Ahwa is directed to be continued for the rest of the offences. 14. For the forgoing reasons, the complaint in question is quashed qua Section-186 of the IPC. The application stands allowed to the aforesaid extent.