Point in Issue :
Whether in the facts alleged complaint made by opposite party against petitioner under Section 504 IPS is not maintainable.

P.P. Bhatt, J.—The present application is filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) to quash and set aside the complaint at Annexure-’A’ being Criminal Case No. 1125 of 2003 pending before the Court of learned JMFC, Gandhinagar and summons/process issued therein under Section 504 of IPC qua the present petitioner.

2. The aforesaid complaint, being Criminal Case No. 1125 of 2003, was instituted for the offences punishable under Sections 170, 216(A), 218, 219, 419, 420, 455, 504, 506(2) and 114 read with Section 34 of IPC against total five accused persons. The petitioner herein is accused No. 4, against whom summons/process under Section 504 of IPC has been issued.

3. Learned Advocate Shri Hardik A Dave for the petitioner has pointed out facts stated in Para 4 of the petition and submitted that the petitioner is accused No. 4 in the complaint filed by Girdharibhai Khataumal Chandak “Respondent No. 2 herein. The allegations made in the complaint dated 28.01.2003 against the present petitioner are with regard to use of abusive language after having called him (complainant) in the Police Station. On the basis of this complaint, the learned JMFC has passed an order for issuance of process under Section 504 of IPC against the petitioner “ accused No. 4. It is submitted that the averments made in Para 4 of the complaint do not constitute an offence under Section 504 of IPC. Learned advocate for the petitioner has referred to Section 504 of IPC and submitted that from the allegations made against the petitioner in the complaint, none of the ingredients are emerged so as to attract the requirement of Section 504 of IPC. However, the learned JMFC, Gandhinagar has issued process against the present petitioner - accused No. 4. The learned Advocate for the petitioner made following submissions :—

3.1 That looking into the allegations against the petitioner and taking the same to be true, it is stated that the petitioner has used abusive language against the complainant-respondent No. 2 herein after calling the Respondent No. 2 to Pethapur Police Station. It is respectfully submitted that in the instant case cognizance of the offence against the present petitioner would require previous sanction of the State Government under Section 197 of the Code.

3.2 That the JMFC has wrongly placed reliance on the decision of the Mumbai High Court reported in 1991 CriLJ 1481 and has wrongly held that sanction would not be required to prosecute the petitioner in the instant case.

3.3 That the Hon’ble Supreme Court has in a catena of decisions held that sanction as required under Section 197 of the Code is mandatory and that the Magistrate cannot take cognizance of the offences against public servants without the necessary sanction. In this context, it is submitted that it is now well settled that Section 197 of the Code culls out an exception to Section 190 of the Code and no Court can take cognizance under Section 190 of the Code if the offence is alleged against a public servant without sanction as envisaged under Section 197 of the Code. Thus, the learned Judge has erred in considering the mandatory requirement of Section 197 and failed to consider in its true perspective.

3.4 It is respectfully submitted that the ingredients of Section 504 of IPC are intentional insult and provocation intending and knowing that such provocation would cause a person to break public peace or to commit any other offence and therefore, even otherwise no offence much less an offence under Section 504 of IPC can be said to be made out against the present petitioner.

3.5 That in the instant case, even if all the averments as stated in the complaint are taken to be completely true, then also it cannot be said that the petitioner has intentionally insulted and given provocation to the present complainant - Respondent No. 2 as would cause him to break public peace or to commit any other offence. It is respectfully submitted t