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2024 DIGILAW 314 (GUJ)

Krupalbhai Nikunjbhai Desai v. State Of Gujarat

2024-02-15

CHEEKATI MANAVENDRANATH ROY

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JUDGMENT : 1. By way of filing this Criminal Misc. Application under Section 482 of the Criminal Procedure Code, the petitioner seeks quash of the FIR in Crime Register No.II-3117 of 2019 registered with Ellise Bridge Police Station, Ahmedabad, for the offence punishable under Section 186 of the Indian Penal Code against the petitioner, and the proceedings in Criminal Case No.52397 of 2019 on the file of learned Metropolitan Magistrate Court No.22, Ahmedabad. 2. Heard Mr.I.H.Saiyed, learned Senior Counsel for the petitioner and Ms.Maithili Mehta, learned APP for the respondent-State. 3. The facts of the prosecution case lie in a narrow compass and may be stated as follows:- 3.1 The defacto complainant is a public servant working as a constable in Ellise Bridge Police Station, Ahmedabad. On the date of the alleged offence, he found that some vehicles are parked in front of the house of the petitioner. When the constable has requested the petitioner to remove the said vehicles, which are parked in front of his house, it is stated that the petitioner has shouted at the constable and thereby obstructed him in discharge of his public functions. 3.2 The constable has lodged a report with the Ellise Bridge Police Station, which was registered as an FIR against the petitioner for the offence punishable under Section 186 of the Indian Penal Code. The case was investigated and eventually, after completion of the investigation, charge-sheet was filed by the police against the petitioner in Metropolitan Magistrate Court, Ahmedabad. The learned Magistrate has taken cognizance of the said offence against the petitioner and issued summons against him in Criminal Case No.52397 of 2019. 4. The petitioner sought quash of the said FIR and the criminal prosecution launched against him in Criminal Case No.52397 of 2019 on the file of learned Metropolitan Magistrate Court, Ahmedabad, on the ground that no FIR can be registered on the basis of the report lodged by any public servant for the offences punishable under Section 186 of IPC and the Court also cannot take cognizance of the said offence against the petitioner without there being a complaint filed by the public servant in the concerned Court, as required under Section 195 (1) (a) (i) of CrPC. 5. This Court finds considerable force in the said contention of the learned counsel for the petitioner. 5. This Court finds considerable force in the said contention of the learned counsel for the petitioner. Section 195 (1) (a) (i) of CrPC clearly mandates that no Court shall take cognizance of any offence punishable under Sections 172 to 188 of IPC except on the complaint in writing of the said public servant or some other public servant to whom he is administratively subordinate. 6. Complaint is defined in Section 2 (d) of CrPC and it reads thus:- “Complaint” 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. Explanation of Section 2 (d) says that the report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be complaint; and the police officer by whom such report is made shall be deemed to be the complainant. 6.1 Explanation to Section 2 (d) has no application in the facts of the present case. It applies only when police initiates investigation in a cognizable offence but ultimately founds that only a non-cognizable offence has been made out. The said law is enunciated by the Apex court in the judgment rendered in the case of Keshav Lal Thakur vs. State of Bihar reported in (1996) 11 SCC 557 . 7. In view of the definition of complaint under Section 2 (d) of CrPC, it is the police constable, who has to file a complaint, before the concerned Magistrate and the Magistrate is competent to take cognizance of the said offence only on the complaint made by the police constable. A bar is clearly engrafted to take cognizance of offence for the offence punishable under Section 186 of IPC under Section 195 (1) (a) (i) of CrPC. A bar is clearly engrafted to take cognizance of offence for the offence punishable under Section 186 of IPC under Section 195 (1) (a) (i) of CrPC. Therefore, in view of the said bar engrafted under Section 195 of CrPC from registering of FIR by the police and investigating the same and taking cognizance of the offence by the Court on the basis of the charge-sheet that was field by the police, without there being any complaint made to the Magistrate by the police constable, the present order of the learned Magistrate taking cognizance of offence on the basis of the charge-sheet filed by the police is clearly is clearly unsustainable under the law. The present charge sheet that was filed and the order of taking cognizance by the learned Magistrate is clearly hit by Section 195 (1) (a) (i) of CrPC. 8. When a clear bar is engrafted for taking cognizance of offence under Section 195 (1) of CrPC and when cognizance of offence is taken contrary to the mandate of Section 195 of CrPC, as per settled law, this is a fit case where the order of taking cognizance of offence by the Magistrate and the criminal proceedings initiated are liable to be quashed and set aside. 9. Resultantly, the application is allowed. FIR in Crime Register No.II-3117 of 2019 registered with Ellise Bridge Police Station, Ahmedabad, and the criminal proceedings initiated thereon in Criminal Case No.52397 of 2019 on the file of learned Metropolitan Magistrate, Ahmedabad, against the petitioner are hereby quashed. Rule is made absolute.