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2024 Supreme(Online)(GUJ) 25745
HIGH COURT OF GUJARAT
NIRZAR S. DESAI, J
VAGHAVANKAR MANOJKUMAR RAGHUNATHBHAI – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 18397 of 2023
JAYDEEP H SINDHI(9585), PUBLIC PROSECUTOR
An FIR under Section 188 IPC cannot be filed without a prior complaint from the competent authority as mandated by Section 195 of the Code of Criminal Procedure.
Headnote:(A) Indian Penal Code, 1860 - Section 188 - Code of Criminal Procedure, 1973 - Section 195 - Quashing of FIR - The petitioner challenged the FIR registered under Section 188 IPC, arguing that a complaint from the competent authority was necessary before filing the FIR. The court referenced the Supreme Court's decision in P.D. Lakhani, emphasizing that the FIR was an abuse of process due to non-compliance with Section 195. (Paras 3.1, 5.1)
(B) Legal Procedure - The court reiterated that a complaint must be filed before the concerned magistrate for offences under Section 188 IPC, as per the provisions of Section 195 of the Code. (Paras 5.1)
Facts of the case:
The petitioner faced accusations under Section 188 IPC without a prior complaint from the competent authority, which is required by law.
Findings of Court:
The court found that the FIR was improperly filed and quashed it based on the Supreme Court's precedent.
Issues: The main issue was whether the FIR could be filed without a prior complaint from the competent authority as mandated by law.
Ratio Decidendi: The court ruled that the FIR was invalid due to the lack of a necessary complaint, aligning with the Supreme Court's interpretation of the relevant legal provisions.
Result: The impugned FIR is quashed and set aside.
ORAL ORDER
Rule. Learned APP waives service for the respondent-State.
1. Learned Advocate, Mr. Majmudar, appearing for the petitioners tendered a draft amendment, today.
1.1 The same is ordered to be taken on record and is granted.
2. By way of this petition, the petitioner has prayed to quash and set aside the impugned FIR, bearing C.R. No. 11200010231685 of 2023, registered with Valsad Town Police Station, Valsad, for the offence punishable under Sections 188 of the Indian Penal Code , 1860 (in short, ‘ IPC ’).
3. Learned Advocate, Mr. Sindhi, appearing for the petitioner submitted that the petitioner is facing accusations for commission of the offence punishable under Section 188 of the IPC .
3.1 It was submitted that as per Section 195 of the Code of Criminal Procedure , 1973 (‘the Code’, in brief), the competent authority was required to file a complaint before the concerned Magistrate and the straightaway an FIR could not have been filed against the present petitioner for the offence punishable under Section 188 of the IPC .
3.2 Learned Advocate, Mr. Sindhi, invited the attention of this Court to the decision of the Hon’ble Apex Court, rendered in the case of ‘ P.D. Lakhani and Another Vs. State of Punjab and Another ’, reported in (2008) 5 SCC 150 , and reiterated that, in view of the observations made by the Hon’ble Apex Court in the aforesaid decision, the competent authority was required to file a complaint before the concerned Magistrate and the impugned FIR could not have been filed against the present petitioner. It was, therefore, submitted that the continuation of the impugned FIR is nothing, but, the abuse of the process of law.
4. Learned APP, though, vehemently attempted to oppose the present petition, she could not point out anything contrary to the observations made by the Hon’ble Apex Court in the case of ‘ P.D. Lakhani and Another’ (Supra).
5. Having heard the learned Advocates for the parties and having considered the submissions made by them, here, it would be relevant to refer to the observations made by the Hon’ble Apex Court at Paragraphs-11, 13, 14, 16 and 17 in the case of ‘ P.D. Lakhani and Another’ (Supra), which read thus;
“ 11. Section 182 of the Indian Penal Code , indisputably, provides for an offence falling under Chapter X of the Indian Penal Code . Section 195 provides for prosecution for contempt of lawful authority of public servant, for offences against public servant and for offences relating to documents given in evidence. It contains an embargo stating that 'no court shall take cognizance of an offence punishable, inter alia, under the aforementioned provision except on the complaint in writing by the public servant concerned or by some other public servant to whom he is administratively subordinate'. 'Contempt of a public servant' has a definite connotation. Such contempt must be provided for by law. It must be found to be false. The Station House Officer, Jallandhar did not act on the said complaint. He asked the appellant No.2 to bring the same to the notice of the Senior Superintendent Police, Jalandhar, Complaint Branch, which he did. It was, thus, a complaint to a higher authority.
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13. The report of compliance by Gian Singh was made to the CIA staff. CIA staff, in turn, placed it before the Senior Superintendent of Police. The proceedings, therefore, were, indisputably, initiated by the Senior Superintendent of Police, Jallandhar and not by the Station House Officer. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar.
14. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in r
