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2022 DIGILAW 1751 (GUJ)

Kanaksinh Jasubha Gohil v. State Of Gujarat

2022-12-13

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. By way of the present petition, the petitioners herein have prayed for the the following reliefs:- "(A) That this Honourable Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the proceedings of FIR being Crime Register No.II-18 of 2016 registered with Alang Marine Police Station for the offences punishable under Sections 186 and 114 of the IPC as well as proceeding being Criminal Case No.600 of 2016 pending before 2nd Judicial Magistrate First Class, Talaja; (B) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay further proceedings of FIR being Crime Register No.II-18 of 2016 registered with Alang Marine Police Station for the offences punishable under Sections 186 and 114 of the IPC as well as proceeding being Criminal Case No.600 of 2016 pending before 2nd Judicial Magistrate First Class, Talaja; (C) This Honourable Court will be pleased to pass such other and further orders as the nature and circumstances of the case may require." 2. Heard Mr. Umang Vyas, the learned advocate for Mr. Tatvadeep Jani, learned advocate appearing for the petitioners and Ms. Vrunda C. Shah, the learned Additional Public Prosecutor appearing for the respondent - State. 3. At the outset, Mr. Umang Vyas, the learned advocate for Mr. Tatvadeep Jani, learned advocate appearing for the petitioners submitted that the impugned complaint arraigning the applicants herein with the charges under Section 186 of the Indian Penal Code is barred as per Section 195(1)(a) of the Code of Criminal Procedure. Mr. Umang Vyas, the learned advocate for Mr. Tatvadeep Jani, learned advocate appearing for the petitioners has placed reliance on the order dated 17.08.2015 passed in Special Criminal Application (Quashing) No.2908 of 2015 and the order dated 08.12.2015 passed in Criminal Misc. Application (For Quashing and Set aside FIR/Order) No.23009 of 2015. 4. Ms. Vrunda C. Shah, learned Additional Public Prosecutor appearing for the respondent - State was not in a position to controvert the submissions advanced by Mr. Umang Vyas, the learned advocate for Mr. Tatvadeep Jani, the learned advocate appearing for the petitioners. 5. Position of law :- 5.1 In the case of State of Karnataka vs. Hemareddy & Anr. 4. Ms. Vrunda C. Shah, learned Additional Public Prosecutor appearing for the respondent - State was not in a position to controvert the submissions advanced by Mr. Umang Vyas, the learned advocate for Mr. Tatvadeep Jani, the learned advocate appearing for the petitioners. 5. Position of law :- 5.1 In the case of State of Karnataka vs. Hemareddy & Anr. reported in AIR 1981 SC 1417 wherein the Supreme Court observed in para-8 as under :- “We agree with the view expressed by the learned Judge and hold that In cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195 (1) (b) of the Code of Criminal Procedure and an offence for which a complaint of a Court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in S. 195 (1) (b) of the Code of Criminal Procedure should be upheld.” 5.2 In the case of State of U.P. Versus Suresh Chandra Srivastava and Others, reported in AIR 1984 SC 1108 , the Supreme Court has held as under :- "It is well settled 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 offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 Cr. P. C." 5.3 In case of Ramji Bhikha Koli and others v/s. State of Gujarat reported in 1999 (1) GLR 790 , relevant para-8 reads thus: “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. 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).” 6. Section 195 of the Code of Criminal Procedure reads thus: “195. Section 195 of the Code of Criminal Procedure 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 subsection (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. (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 subsection (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." 7. In view of the settled position of law, as referred above and the facts of the present case, undisputedly, there is a bar of lodging of FIR for offence punishable under Section 186 of the Indian Penal Code under Section 195(1)(a)(i) of the Code of Criminal Procedure, as stated above. In view of above, the consequential provision of Section 114 of Indian Penal Code which is allegedly invoked against the present petitioners herein is also required to be quashed. 8. In view of above, the impugned FIR being Crime Register No.II-18 of 2016 registered with Alang Marine Police Station for the offences punishable under Sections 186 and 114 of the IPC as well as Criminal Case No.600 of 2016 pending before 2nd Judicial Magistrate First Class, Talaja is hereby quashed and set aside. However, liberty is reserved qua the respondent authorities to file a private complaint, as permissible under the law. The present petition stands allowed. 9. Rule is made absolute to the aforesaid extent. Interim relief, if any, stands vacated.