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2024 DIGILAW 1582 (GUJ)

Dinesh Shankarlal Chauhan v. State Of Gujarat

2024-07-19

UMESH A.TRIVEDI

body2024
JUDGMENT : 1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) as also under Article 226 of the Constitution of India praying for quashing of the FIR registered as C.R. No. 11191041200772 of 2020 registered with Shaherkotda Police station, Ahmedabad City, for the alleged offences punishable under Section 501, 500 and 114 of the Indian Penal Code (hereinafter referred to as the “IPC”) as also under Sections 112 and 117 of the Gujarat Police Act, filed by respondent No.2 herein, who is Unarmed Head Constable of Shaherkotda Police station, Ahmedabad City. 2. Brief facts of the case are as under:- 2.1 Respondent No. 2 herein - Unarmed Head Constable Bharatkumar Kalidas, on 27.07.2020, registered First Information against the applicant for the aforesaid offences stating therein that, while he was present in the Office in Surveillance Squad, he came to know that the applicant – Joint Secretary of Communist Party of India, pasted certain posters at different places stating therein that, in Shaherkotda area, there are several liquor dens, under the blessings of Police Inspector Shri V.D. Vala and one Ramsinh and Vijay Hiralal, who is working in Homeguard, are going on. 2.2 Therefore, information got verified and it was found that in the Police station area at different places, on different electrical poles, such banners were pasted depicting the aforesaid statement. In the said banner/poster, youth of the area requested to raise their voice against Police and their dictatorship. 2.3 It is further stated in the banner/poster that certain food-stalls/houses were permitted to remain open even during lockdown period and restricted unlock – II, whereas they compelled to obey lockdown and restricted unlock over the general public. In the said banner/poster, mobile number was given under the name of present applicant as Joint Secretary of Communist Party of India. 2.4 Therefore, respondent No. 2 herein – Bharatkumar Kalidas, Unarmed Head Constable of Shaherkotda Police station, Ahmedabad City, gave the aforesaid First Information Report. 3. Mr. A.R. Kadri, learned advocate for the applicant, submitted that since the applicant has raised voice against the Police through the aforesaid banner/poster, he has been not only threatened but also asked to face the consequence of his involvement in any case and thereby, ultimately to undergo preventive detention. 3. Mr. A.R. Kadri, learned advocate for the applicant, submitted that since the applicant has raised voice against the Police through the aforesaid banner/poster, he has been not only threatened but also asked to face the consequence of his involvement in any case and thereby, ultimately to undergo preventive detention. As such, applicant, as claimed in the application, is in the business of flower for earning his livelihood. At the same time, he is also a social worker and RTI activist for many decades serving people of his area and surroundings. 3.1 Mr. A.R. Kadri, learned advocate for the applicant, further submitted that since offences mentioned in the aforesaid First Information Report are non-cognizable, respondent No. 2 herein - Unarmed Head Constable, who is supposed to know the law, could not have given aforesaid First Information Report for the non-cognizable offence. Not only he gave it and Police Station Officer – Surendrasinh Ratansinh Vaghela, again Head Constable of that very Police station, has registered the same. 3.2 Person, who gave that first information, and person, who recorded it as a First Information Report, both are serving in the Police Department since long and should be aware that no First Information Report could have been filed or even registered by them. It cannot be presumed that they do not know the law prohibiting the said action. 3.3 He has further submitted that, apart from it, as reflected from the First Information Report itself, if at all the assertion therein are defamatory to the persons aggrieved i.e. Police Inspector V.D. Vala, one Ramsinh and Vijay Hiralal, they can at best file a complaint before the competent Court and none else could have filed the same. 3.4 Drawing attention of the Court to Section 199 of “the Code”, it is submitted that cognizance of offence punishable under Chapter XXI of the “IPC” could not have been taken by any Court except upon a complaint made by some person aggrieved by the offence. Therefore, he has submitted that if at all any persons were aggrieved by that assertion in the banner/poster, they only could have filed a complaint, that too, before the Court. 3.5 He has further submitted that, even otherwise, the offences alleged are non-cognizable, for which Police cannot take cognizance of it, as defined under Section 2(l) of “the Code”. Therefore, he has submitted that if at all any persons were aggrieved by that assertion in the banner/poster, they only could have filed a complaint, that too, before the Court. 3.5 He has further submitted that, even otherwise, the offences alleged are non-cognizable, for which Police cannot take cognizance of it, as defined under Section 2(l) of “the Code”. If at all on receipt of any application into the non- cognizable offence received by Police, they cannot undertake investigation therein without the permission of the Court concerned, who is empowered to try such case or commit the case for trial. Therefore, he has submitted that the FIR and any investigation pursuant thereto carried out so far is required to be quashed and set aside. 4. As against that, Ms. Jyoti Bhatt, learned APP, attempted to justify the action of the Police to register an offence as also carrying out investigation therein. She has submitted that in view of Section 199 of “the Code”, Court may be precluded from taking cognizance of the aforesaid offences in absence of a complaint by the person aggrieved but it does not prohibit filing of a charge-sheet. Therefore, she has submitted that the application be rejected. 5. Having heard the learned advocate for the applicant as also learned APP and going through the entire papers, including petition and annexures as also investigation carried out so far, it emerges that certain defamatory assertions are made in the posters/banners claiming to be written and pasted by the applicant, as his name as also designation in a Communist Party of India is shown along with mobile number. 5.1 However, when the matter was placed for hearing before this Court on 18.07.2024, this Court, noticing not only filing of First Information Report by the Unarmed Head Constable for non-cognizable offences, but registering of the same is again by a Police Station Officer and above all, noticing that since investigation into the offence is already over and is pending for submission of charge-sheet, an affidavit to that effect is affirmed by the Assistant Commissioner of Police, ‘D’ Division, Ahmedabad City, filed in Criminal Misc. Application No. 1 of 2023 in the present application praying for fixing date of hearing, whereas in a Report submitted through learned APP, it is requested that stay against investigation be vacated. Application No. 1 of 2023 in the present application praying for fixing date of hearing, whereas in a Report submitted through learned APP, it is requested that stay against investigation be vacated. Therefore, an Unarmed Head Constable, who gave that first information, the Head Constable, who recorded it as Police Station Officer, and concerned Assistant Commissioner of Police, ‘D’ Division, Ahmedabad City, were all directed to remain personally present before the Court today. 5.2 Pursuant thereto, all three are present before the Court today and a pointed question to the concerned Assistant Commissioner of Police with regard to the offences mentioned in the FIR as also disclosed during the course of investigation, as claimed in an application made for fixing date of hearing to be Sections 120(B) and 182 of the “IPC”, as to whether any offences stated therein, on conclusion of investigation, according to Assistant Commissioner of Police, are cognizable or non-cognizable, a straight answer is given that all offences are non-cognizable offences. 5.3 Realizing the mistake, for the time being it is to be treated as a mistake, they all are on backfoot. 5.4 It appears that while concluding the investigation, they have invoked Section 12 of The Press and Registration of Books Act, 1867 (hereinafter referred to as “the PRB Act”), which is nothing but providing suspension or cancellation of certificate of registration of a newspaper but it nowhere defines a punishment thereof in Section 12. Even if Section 13, providing penalty for certain contravention is invoked, there also for cancellation of registration of newspaper under provisions of Section 12 of “the PRB Act”, no penalty is prescribed. Even other provisions in the said Act do not provide the sentences so as to term those breach as a cognizable offence, as mentioned in Section 2(c) of “the Code”. 5.5 Thus, it is clear that even if all the offences mentioned in the FIR found to have been committed, according to me, it could not be registered as FIR and no investigation into it commenced as they are non-cognizable, and therefore, Police cannot register an offence and carry on investigation into it. At best, they can register such information in a separate book kept, as provided under Section 155 of “the Code” and they are supposed to seek permission from the competent Court to conduct investigation into it. At best, they can register such information in a separate book kept, as provided under Section 155 of “the Code” and they are supposed to seek permission from the competent Court to conduct investigation into it. 5.6 As provided in sub-section (3) of Section 155 of “the Code”, though Police Officer receiving such order by Magistrate may exercise same powers in respect of the investigation but except the power to arrest without warrant as an officer-in- charge of a Police station may exercise in a cognizable case. It has not been brought to my notice that they have asked for any permission/order from the Court for the purpose of investigation into it. At any rate, no such non-cognizable offence could have been recorded as a FIR in a register empowering Police to conduct an investigation into it without the order of concerned Magistrate. 5.7 Apart from it, taking of a cognizance by a Court for an offence alleged falling in Chapter XXI of “the Code” is prohibited except upon a complaint filed by an aggrieved person. Neither the respondent No. 2 - Unarmed Head Constable nor Police Station Officer, Head Constable – Surendrasinh Ratansinh Vaghela can be said to have been the person aggrieved for the offences for which they gave information and registered FIR, respectively. 5.8 Not only that, concerned Assistant Commissioner of Police, who has filed an affidavit requesting the Court to fix up the matter for early hearing as investigation is concluded and it is for the presentation of charge-sheet, can also not be said to be the person aggrieved, as defined in Section 199 of “the Code” for the offence, which is registered and investigated into. Therefore also, the FIR and pursuant investigation into it is required to be quashed and set aside. 5.9 The purpose for prohibiting cognizance by the concerned Magistrate into the offence, except upon a complaint, that too, by the aggrieved person, is with a view to keep Police Officer outside of the offences under Chapter XXI of the “IPC”. 5.10 Role of Police in any offence under the defamation is kept outside their jurisdiction as all offences are non-cognizable and cognizance of the same is to be taken by the Magistrate upon complaint, that too, filed by an aggrieved person alone. 5.10 Role of Police in any offence under the defamation is kept outside their jurisdiction as all offences are non-cognizable and cognizance of the same is to be taken by the Magistrate upon complaint, that too, filed by an aggrieved person alone. In the present case, no one, who has given information, who registered it or who investigated it, can be said to be person aggrieved and again, it is not even by way of complaint before the Magistrate. 6. Thus, there is no option but to quash not only the impugned FIR but also any investigation carried out thereto, upon registration of it, is also hereby quashed and set aside. However, if any aggrieved person files any appropriate proceedings before the appropriate forum, it shall be determined in accordance with law by the forum concerned. In view thereof, this application is allowed. Rule made absolute.