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2019 Supreme(Guj) 568
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Kandhal Sarman Jadeja - Appellant
Versus
State of Gujarat - Respondent
R/Criminal Misc.Application No. 31355 of 2017
Decided On : 18-02-2019
For the Appellant :Mr. ND Nanavati, Senior Counsel For Nanavaty Advocates
For the Respondent: Mr. Mitesh Amin, Public Prosecutor
Headnote:
Indian Penal Code, 1860 – Sections 143, 147, 160, 186, 294B, 332, 427 and 504 – Prevention of Damage to Public Property Act, 1984 – Sections 3 (1) & 3 (2) – Criminal Procedure Code, 1973 – Section 195 – Quashing of FIR – Held,Merely by changing garb or label of offence which is essentially an offence covered by provisions of section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it – Offence under section 186 IPC mischief of section 195(1)(a) since offence of section 332 of IPC, which postulates voluntary causing hurt to deter public servant from his duty is maintained not attract mischief of section 195 of Cr.P.C. same involves offence of personal element falling under Ch.XVI regarding offence affecting human body rest of offences, indubitably, have distinct characteristics and ingredients of the same are also different for which no complaint is necessary – Prima facie contents of FIR reveal there was scuffle in police station under section 186 offence IPC not fatal for entire case of prosecution – Hence investigation proceed further with regard other offences except section 186 of IPC and Sections 3 (1) & 3 (2) of Act, 1984 – Petition is partly allowed – [Paras 6,17 & 18]
Facts of the case:
Respondent has lodged F.I.R. inter alia, alleging while he was on duty at Police Station, shouting that applicant and his brother and others were chasing him to beat him – Application for seeking quashing of FIR.
Findings of the court:
Merely by changing garb or label of offence which is essentially an offence covered by provisions of section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it – offence under section 186 IPC attract mischief of section 195(1)(a) since offence of section 332 of IPC, which postulates voluntary causing hurt to deter public servant from his duty is maintained not attract mischief of section 195 of Cr.P.C. same involves offence of personal element falling under Ch. XVI regarding offence affecting human body rest of offences, indubitably, have distinct characteristics and ingredients of the same are also different for which no complaint is necessary – Prima facie contents of FIR reveal there was scuffle in police station under section 186 offence IPC cannot fatal for entire case of prosecution.
Result: Petition partly allowed
JUDGMENT :
1. The present writ application has been filed seeking quashing of the FIR bearing C.R.No.I-82 of 2017 registered with Ranavav Police Station, District Porbandar for the offence punishable under Sections 143, 147, 160, 186, 294B, 332, 427 and 504 of the Indian Penal Code, 1860 ('the IPC' for short) read with Sections 3 (1) & 3 (2) of the Prevention of Damage to Public Property Act, 1984 ('the Act' for short).
2. The brief facts leading to filling of the present application are as under:
2.1. The respondent No.2 has lodged the impugned F.I.R. on 21.12.2017, inter alia, alleging that while he was on duty at the Ranavav Police Station, one Samat Gogan Mer stormed into the police station, shouting that the applicant and his brother and others were chasing him to beat him and, therefore, the first informant had made him sit inside the chamber of the PSI.
2.2. It is further alleged that in the meanwhile, the applicant, his brother and others reached there, and started hurling filthy abuses at the first informant, and thereafter they entered in the chamber of the PSI and abused Samat Gogan Mer. Therefore, the first informant had asked both the sides to stop abusing. It is alleged that both the sides grappled with each other and Samant Gogan Mer asked the first informant not to intervene.
2.3. It is stated that since the applicant has been elected from Kutiyana constituency in the Assembly Elections held in the State of Gujarat, and since the swearing-in-ceremony was to take place on 25.12.2017, the applicant herein has been enlarged on temporary bail by concerned Magistrate vide order dated 22.12.2017. It is stated that the court below has extended the period of temporary bail till 27.12.2017 vide order dated 23.12.2017.
3. Learned Senior Counsel Mr.N.D.Nanavati appearing for the applicant has submitted that the impugned FIR itself could not have been filed for the offence punishable under Section 186 of the IPC in light of the statutory bar under Section 195 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Reliance was placed on the judgments of the Supreme Court in the case of State of Karnataka v. Hemareda'y and another, AIR 1981 SC 1417 and State of UP. v. Suresh Chandra Srivastava and others, AIR 1984 SC 1108 and the judgment of this Court in Criminal Misc. Application No.24632 of 2015 and allied matters.
4. It was also contended that a bare reading of the FIR would show that none of the ingredients of the offence alleged against the applicant has been made out. It was stated that the ingredients of the offence under Section 332 of the IPC are not established in the present case. In view of the aforesaid submissions, it was urged that the impugned FIR may be quashed and set aside.
5. On the other hand, the writ application has been vehemently opposed by Mr. Mitesh Amin, the learned Public Prosecutor appearing for the respondent-State has submitted that the statutory powers of the police to investigate a cognizable offence under the Cr.P.C. is not in any way controlled or circumscribed by Section 195 of the Cr.P.C. Mr.Amin submitted that Section 195 of the Cr.P.C. comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1) of the Cr.P.C. and it has nothing to do with the statutory power of the police to investigate into an F.I.R. disclosing a cognizable offence in accordance with Chapter XII of the Cr.P.C. Mr.Amin very fairly submitted that it is only upon filing of the charge-sheet, when the Court is called upon to take cognizance of the offence on the basis of the police report that the bar of Section 195 of the Cr.P.C. would come into play. Mr.Amin submitted that in the F.I.R., over and above Section 186 of the I.P.C., there are other offences also of the I.P.C. which are not covered by Section 195 of the Cr.P.C. According to the learned Public Prosecutor, ultimately, at the end of the investigation, the police may not file charge-sheet for the offence punishable under Se
