4 Dec 2021 9:57 AM GMT
The Gujarat High Court on Wednesday quashed the complaint and the charge sheet against Congress leader Hardik Patel in connection with a rally which he took out in the year 2017 sans police permission.The Bench of Justice Gita Gopi was hearing a 482 CrPC application filed by Patel who sought quashing of the complaint registered with the police station for the offences punishable under section...
The Gujarat High Court on Wednesday quashed the complaint and the charge sheet against Congress leader Hardik Patel in connection with a rally which he took out in the year 2017 sans police permission.
The Bench of Justice Gita Gopi was hearing a 482 CrPC application filed by Patel who sought quashing of the complaint registered with the police station for the offences punishable under section 188 of IPC [Disobedience to order duly promulgated by public servant], charge-sheet, and the proceedings initiated pursuant thereto.
The matter in brief
Patel was arraigned as accused no.3 along with two others for carrying out a public rally (in car and motorcycle) in the areas of Ahmedabad, in December 2017 without taking any permission from the officials.
Alleging that they had violated the order promulgated by the Additional District Magistrate, an FIR was lodged by Circle Officer, Aslali Division, office of Mamlatdar, Daskroi, Ahmedabad upon receiving written order from the Mamlatdar of Daskroi after carrying out an inquiry about the alleged incident.
Thereafter, in May 2018, a charge sheet was filed by the investigating officer before the Court of Judicial Magistrate, First Class, Ahmedabad, which took cognizance on the basis of the charge sheet and the case been registered against him.
Moving the Court, Patel argued that in view of 195(1)(a)(i) of the CrPC, the Court can't take cognizance of offence under Section 188 IPC on the basis of FIR as the section bar the same.
It was also argued that the charge sheet in the instant case was itself not maintainable under section 188 of IPC without there being any complaint by the public servant concerned.
It may be noted that as per 195(1)(a)(i) of the CrPC, no Court can take cognizance of any offence punishable under sections 172 to 188 (both inclusive) of the IPC except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate.
Against this backdrop, it was argued that since the Magistrate had taken cognizance on the basis of the police report and not on the basis of any complaint by the public servant concerned and therefore the trial itself is void-ab-initio, without jurisdiction and deserves to be quashed and set aside.
It was also submitted that mens rea is an essential ingredient to constitute offences under the IPC or under and other substantive law, which is absent from the allegations levelled in the FIR.
At the outset, the Court observed that in view of Section 195 CrPC, a complaint has to be filed for the Court to take cognizance of the matter and therefore, the court noted, filing of F.I.R. by the police for the offence punishable under Sections 172 to 188 of IPC before the Police Station is bad in law.
In view of this, the Court observed that the charge sheet is filed only under Section 188 IPC and no further allegations are made against Patel. Further, allowing the plea and quashing the charge sheet complaint and other criminal proceedings, the Court noted thus:
"...when there is an absolute bar on taking the cognizance of the offence punishable under Sections 172 to 188 of the IPC, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate and when the present case does not disclose any commission of the offence distinct from the alleged offence under Section 188 IPC, the Magistrate is debarred from taking cognizance in the present matter, as the provision of Section 195 Cr.P.C. has not been complied with."
Case title - Hardik Bharatbhai Patel v. State Of Gujarat
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