ORAL ORDER

1. The applicants are before this Court to quash and set aside the FIR dated 26.11.2018 being CR No.Part-II/117/2018, registered with Sector 7 Police Station, Gandhinagar, for the offences punishable under Sections 188 and 120-B of the Indian Penal Code (for short “IPC”) as well as under Section 66-E of the Information Technology Act, 2000 (for short “IT Act”).

2. It transpires that FIR came to be lodged against the present applicants by one Mr. Bhautikbhai Govindbhai Patel – respondent No.2 herein, mainly alleging that he was informed by invigilator – Umeshbhai R. Rathod that in Block No.13, one of the candidates was taking photographs on his mobile phone and sending it outside, pursuance to which the complainant along with Ilaben went to Block No.13 and took the candidate to the management’s room, and asking his name, he said that his name is Hardik Babulal Purohit resident of Sahyog Residency, Devpura, Palanpur. seating at Seat No.101000585 and was having mobile phone with him that of Redmi Note 4, and has also clicked photographs of question paper and sent the said photographs through WhatsApp on mobile No.97140 92793; asking whose mobile number was that, he has informed that it was his brother Rahul Purohit’s mobile number to which the photographs of question paper were send. Thus, FIR came to be lodge for offence punishable under Section 188 and 120B of the IPC and Section 66-E of the It Act.

3. Learned advocate Mr. Maheshkumar K. Purohit for the applicants would submit that no court can take cognizance of offence punishable under Sections 188 of the IPC in view of the barred under Section 195 of the Criminal Procedure Code, except for the complaint in writing by the public servant in this regard. Learned advocate would further submit that sending of question papers through WhatsApp to his brother would also not attract Section 66-E of the IT Act.

4. Learned advocate Mr. Jayswal on behalf of learned advocate Mrs. Yogini V. Parikh for the original complainant would submit that the GPSC has made certain instructions published which categorically prohibits carrying of mobile phone, and since it is breach of said instructions which falls within the four corners of Section 188 of the IPC, however, learned advocate could not draw the attention as to how offence would attract Section 66-E of the IT Act.

5. Learned Additional Public Prosecutor would fairly concede that neither Section 188 of the IPC nor Section 66-E of the IT Act would be attracted, and inasmuch as Section 188 since there is bar of Section 195 of the Cr.P.C., only private complaint is to be filed and not an FIR.

6. Be that as it may, the facts remain that the applicants herein were prima facie found to have sent question paper through WhatsApp outside the examination center, more particularly, the candidate – applicant No.2 to his brother Rahul – applicant No.1. However, the instructions published by the GPSC cannot be said to be promulgation attracting Section 188 of the IPC, which provides as under:

“188. Disobedience to order duly promulgated by public servant — Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes to tender to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend t