Gujarat High Court
Fazal Mohammad Jusabji Khatri vs The State Of Gujarat on 17 March, 2026
NEUTRAL CITATION
R/CR.MA/7831/2020 JUDGMENT DATED: 17/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7831 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
✔
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FAZAL MOHAMMAD JUSABJI KHATRI
Versus
THE STATE OF GUJARAT & ANR.
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
VRUNDA SHAH APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/03/2026
JUDGMENT
1. The present application is filed for quashing of FIR No. C. R.
1121101520051 of 2020 registered with Dhangadhra City Police
Station for the offenses punishable under Section 188 of the IPC
and Section 56 of the Disaster Management Act.
2. The brief facts stated in the FIR are referred hereinbelow.
“The offence is under Section 188 of the IPC and under section
56 of the Disaster Management Act, 2005 that despite there
being Nation-wide Pandemic-Disaster declared by thePage 1 of 20
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Government of India in view of the Corona virus outbreak, the
accused in this case, Fazal Mohammad Zusabji Khatri- working
as Deputy Executive Engineer being a Government employee on
disregarding the notice to remain present on duty, he has
committed an offence by not reporting at the duty.
Complaint: Date: 24/04/2020
My name is Uday Lalitprasad Dave, Brahmin by caste, Age:
56 years, occupation: Service, residing at: Sarvoday Society,
Block No: 11, near Kunj Nath Derasar, Surendranagar, Mo:
9825135734. On being asked in person, I state that I live with
my family at the address mentioned above and serve as In-
charge Executive Engineer in the Office of Executive Engineer,
Road & Building Department, at District Panchayat,
Surendranagar and administration of staff-employees of the
offices of Limbdi, Dhrangdhara, Patdi and Surendranagar falls
under the aegis of my office.
Wherein, Mr. Fazalmohammad Zusabji Khatri is working as a
Deputy Executive Engineer in the office of Deputy Executive
Engineer at Dhrangdhara, who is absent from his duty since
20/03/2020 without any prior sanction of the competent
authority until this date and despite he being explained
telephonically to remain present on the duty frequently, he did
not report to duty, which was intimated to our Superior
Authority, Mr. Shailesh L. Shah, District Development Officer,
who issued notice instructing him to report for the duty on
01/04/2020 through Whats App on his mobile number:
9978427714 to which he gave his explanation on WhatsApp,
which was not accepted by the District Development Officer, to
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telephonically.
Despite this, as he was not reporting on the duty, and as his
period of absence from duty was exceeding one month, District
Development Officer sought for the permission of the District
Collector, Surendranagar to initiate proceedings against him as
there was a nation-wide pandemic declared on account of
Corona virus outbreak, and the Epidemic Act, 1987 and the
Disaster Management Act, 2005 being in force, to which the
permission to initiate criminal proceedings against Mr.
Fazalmohammad Zusabji Khatri (F.Z. Khatri), Deputy Executive
Engineer was issued by the Collector, Surendranagar vide letter
no: Disa/ DM Act-2005/ WS/ 04/ 2020 dated 22/04/2020.
Thus, it is my complaint to initiate proceeding against
Fazalmohammad Zusabji Khatri on being absent from duty. My
witnesses shall be those who emerge during the inquiry and I
produce the photocopy of necessary documents for legal
proceedings against him herewith.”
3. Heard learned advocate Ms. Krishna Gajjar for learned
advocate Mr. Zubin F. Bharda for the applicants, learned
advocate Ms. R. R. Gautam for learned advocate Mr. H. S.
Munshaw for the complainant and learned APP Ms. Shah for the
State.
4. It is submitted by the learned advocate Ms. Gajjar for the
applicant that the FIR was registered for the sole offence
under Section 188 of the IPC. It is submitted by learned advocate
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Ms. Gajjar that the bar of Section 195 would come into play as
under Section 195, no cognizance can be taken except on the
complaint for the offences, which are stated in the provision. It is
submitted by learned advocate Ms. Gajjar that as per the decision
rendered by the Hon’ble Apex Court in the case of Devendra
Kumar V/s. State (Nct of Delhi) and Another reported in 2025
(0) AIJEL-SC 75760, no cognizance can be taken except on
complaint. However, when the FIR is registered for sole offence,
the stage of taking cognizance would be immaterial and in that
background, the impugned FIR would be nothing but an abuse of
the process of law.
5. Learned APP Ms. Shah appearing for the State as well as
the learned advocate Ms. Gautam for the complainant submit
that as the stage of taking cognizance has not yet arisen, the FIR
is maintainable and in that background, the investigation is
required to be completed and at this stage, the application is
required to be rejected.
6. Having considered the submissions made by the learned
advocates for the respective parties and referring to the
allegations made in the FIR filed under Section 188 of the IPC and
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Section 56 of the Disaster Management Act, the only allegation
against the applicant is that he did not resume the duty despite
having received the notice.
6.1. On referring to the decision which was relied upon by the
learned advocate Ms. Gajjar in the case of Devendra Kumar
(supra), wherein the Hon’ble Apex Court has held as under:
“34. Section 195 of the Cr.P.C. reads thus:
195. Prosecution for contempt of lawful authority of public
servant, for offences against public justice and for offences
relating to documents given in evidence.-
(1) No Court shall take cognizance –
(a) (i) of any offence punishable under sections 172 to 188
(both inclusive) of the Indian Penal Code, or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except
on the complaint in writing of the public servant concerned or
of some other public servant to whom he is administratively
subordinate;
(b) (i) of any offence punishable under any of the following
sections of the Indian Penal Code, namely, sections 193 to 196
(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said Code, when
such offence is alleged to have been committed in respect of a
document produced or given in evidence in a proceeding in any
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Court, or
(iii) of any criminal conspiracy to commit, or attempt to
commit, or the abetment of, any offence specified in sub-clause
(i) or sub-clause (ii), except on the complaint in writing of that
Court or by such officer of the Court as that Court may
authorise in writing in this behalf, or of some other Court to
which that Court is subordinate.
(2) Where a complaint has been made by a public servant under
clause (a) of sub-section (1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and upon
its receipt by the Court, no further proceedings shall be taken
on the complaint:
Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “Court” means a
Civil, Revenue or Criminal Court, and includes a tribunal
constituted by or under a Central, Provincial or State Act if
declared by that Act to be a Court for the purposes of this
section.
(4) For the purposes of clause (b) of sub-section (1), a Court
shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or sentences
of such former Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies to the principal Court having
ordinary original civil jurisdiction within whose local jurisdiction
such Civil Court is situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate
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Court of inferior jurisdiction shall be the Court to which such
Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the Civil or
Revenue Court according to the nature of the case or
proceeding in connection with which the offence is alleged to
have been committed.”
35. As a general rule, any person, having knowledge of
commission of an offence may set the law in motion by a
complaint, even though he is not personally interested or
affected by the offence. There are exceptions to this general
rule, as evident from Sections 195 and 196 respectively of the
Cr.P.C. Section 195 is one of those sections, which prohibits a
court from taking cognizance of certain offences unless and
until a complaint has been made by some particular authority
or person. The other sections, with similar prescriptions, are
sections 196 to 199 of the Cr.P.C. respectively. Section 195 of
the Cr.P.C. has been enacted as a safeguard against the
irresponsible and reckless prosecutions by the private
individuals in respect of the offences, which relate to the
administration of justice and contempt of lawful authority.
36. It is true that Section 195 of the Cr.P.C. does not bar the
trial of an accused for a distinct offence disclosed by the same
set of facts and is not so stated therein. Section 195 also does
not provide further that if in the course of the commission of
that offence, other distinct offences are committed, the court
concerned is debarred from taking cognizance in respect of
those offences as well. However, having said so, if the perusal
of the first information report makes it clear that the offence
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under Section 186 of the I.P.C. is closely interconnected with
another distinct offence(s), which in this case is Section 341 of
the I.P.C. and it cannot be split up, then in such circumstances,
the bar of Section 195 of the Cr.P.C. will apply to such other
distinct offence also.
37. In the aforesaid context, we may refer to the following
decisions of this Court;
(i) In the case of State of U.P. v. Suresh Chandra Srivastava &
Ors., reported in AIR 1984 SC 1108 a three-judge bench very
succinctly explained the provisions of Section 195 of the Cr.P.C.
and stated that if the other distinct offences form an integral
part of the offences as enumerated under Section 195 Cr.P.C so
as to fall under the same transaction, then those distinct
offences would also be covered under the ambit of Section 195
Cr.P.C. The relevant observations are as under: –
“6. In these circumstances, therefore, it is not necessary for us
to go into the broader question as to whether if offences under
Sections 467, 471 and 120-B IPC are committed, the complaint
could proceed or not. The law is now well settled that where an
accused commits some offences which are separate and
distinct from those contained in section 195, section 195 will
affect only the offences mentioned therein unless such
offences form an integral part so as to amount to offences
committed as a part of the same transaction, in which case the
other offences also would fall within the ambit of sec. 195 of
the Code.” (Emphasis supplied)
(ii) In the case of State of Karnataka vs. Hemareddy & Anr.
reported in AIR 1981 SC 1417, this Court held that in the cases
where in the course of the same transaction, an offence, for
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which, no complaint by a court is necessary under Section
195(1)(b) of the Cr.P.C., and an offence, for which, a complaint
of a Court is necessary under that sub-section, are committed,
it is not possible to split up and hold that the prosecution of the
accused for the offences not mentioned in Section 195(1)(b),
Cr.P.C. should be upheld. We may quote the observation as
contained in para 8. The same reads as under: –
“8. We agree with the view expressed by the learned Judge
and hold that in cases where in the course of the same
transaction an offence for which no complaint by a court is
necessary under s. 195(1)(b) of the Code of Criminal Procedure
and an offence for which a complaint of a court is necessary
under that sub-section, are committed, it is not possible to split
up and hold that the prosecution of the accused for the
offences not mentioned in s. 195(1)(b) of the Code of Criminal
Procedure should be upheld.” (Emphasis supplied)
(iii) In the case of Saloni Arora vs. State of NCT of Delhi,
[ Criminal Appeal No.64 of 2017], decided on 10.01.2017, this
Court explained the object of Section 195 of the Cr.P.C.,
observing as under: –
“10. As rightly pointed out by the learned counsel for the
parties on the strength of law laid down by this Court in the
case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206)
that in order to prosecute an accused for an offence punishable
under Section 182 IPC, it is mandatory to follow the procedure
prescribed under Section 195 of the Code else such action is
rendered void ab initio.
11. It is apposite to reproduce the law laid down by this Court
in the case of Daulat Ram (supra) which reads as under:
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There is an absolute bar against the Court taking seisin of the
case under S.182 I.P.C. except in the manner provided by S.195
Cr.P.C. Section 182 does not require that action must always be
taken if the person who moves the public servant knows or
believes that action would be taken. The offence under S.182 is
complete when a person moves the public servant for action.
Where a person reports to a Tehsildar to take action on
averment of certain facts, believing that the Tehsildar would
take some action upon it, and the facts alleged in the report
are found to be false, it is incumbent, if the prosecution is to be
launched, that the complaint in writing should be made by the
Tehsildar, as the public servant concerned under S.182, and not
leave it to the police to put a charge-sheet. The complaint must
be in writing by the public servant concerned.
The trial under S.182 without the Tehsildars complaint in
writing is, therefore, without jurisdiction ab initio.
12. It is not in dispute that in this case, the prosecution while
initiating the action against the appellant did not take recourse
to the procedure prescribed under Section 195 of the Code. It is
for this reason, in our considered opinion, the action taken by
the prosecution against the appellant insofar as it relates to
the offence under Section 182 IPC is concerned, is rendered
void ab initio being against the law laid down in the case of
Daulat Ram (supra) quoted above.” (Emphasis supplied)
38. Thus, what is discernible from the decisions referred to
above is that if in truth and substance, an offence falls in the
category of Section 195, it is not open to the court to
undertake the exercise of splitting them up and proceeding
further against the accused for the other distinct offences. This
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would depend on the facts of each case. However it cannot be
laid as a straitjacket formula that the Court cannot undertake
the exercise of splitting up. It would depend upon the nature of
the allegations and the materials on record.
39. In Basir-ul-huq and others v. State of West Bengal reported
in (1953) 1 SCC 637, a three-judge bench of this Court held that
the magistrate would not be debarred from taking cognizance
of the distinct offences not falling within the ambit of Section
195(1)(a), thereby, effectively stating that the offences falling
under Section 195(1)(a) and those not falling under Section
195(1)(a) can be split up. Therein, one of the appellants had
lodged an information at the police station that one D had
beaten and throttled his mother to death. While the funeral
pyre was in flames, the appellants therein along with the police
arrived at the cremation ground, extinguished the fire and sent
the body of the deceased for post-mortem examination.
However, no injury was found on the body of the deceased.
Upon investigation, the sub-inspector reached the conclusion
that a false complaint had been made against D. Therefore, an
offence under Section 182 I.P.C. was made out. However, D had
separately instituted a complaint against the appellants and
they stood convicted for having committed the offence under
Sections 297 and 500 of the I.P.C. respectively. It was in such a
circumstance that this Court stated that the Magistrate could
take cognizance of the distinct offences i.e., Sections 297 and
500 of the I.P.C. respectively despite the facts also disclosing
the commission of an offence under Section 182 I.P.C. for which
a complaint by the proper authority under Section 195 Cr.P.C
would be a pre-requisite. Opining so, it was observed as
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follows:
“12. Section 195 CrPC, on which the question raised is
grounded, provides, inter alia, that no court shall take
cognizance of an offence punishable under Sections 172 to
188IPC, except on the complaint in writing of the public servant
concerned, or some other public servant to whom he is
subordinate. The statute thus requires that without a
complaint in writing of the public servant concerned no
prosecution for an offence under Section 182 can be taken
cognizance of. It does not further provide that if in the course
of the commission of that offence other distinct offences are
committed, the Magistrate is debarred from taking cognizance
in respect of those offences as well. The allegations made in a
complaint may have a double aspect, that is, on the one hand
these may constitute an offence against the authority of the
public servant or public justice, and on the other hand, they
may also constitute the offence of defamation or some other
distinct offence. The section does not per se bar the cognizance
by the Magistrate of that offence, even if no action is taken by
the public servant to whom the false report has been made. It
was however argued that if on the same facts an offence of
which no cognizance can be taken under the provisions of
Section 195 is disclosed and the same facts disclose another
offence as well which is outside the purview of the section and
prosecution for that other offence is taken cognizance of
without the requirements of Section 195 having been fulfilled,
then the provisions of that section would become nugatory and
if such a course was permitted those provisions will stand
defeated. It was further said that it is not permissible for thePage 12 of 20
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prosecution to ignore the provisions of this section by
describing the offence as being punishable under some other
section of the Penal Code.
13. In our judgment, the contention raised by the learned
counsel for the appellants is without any substance so far as
the present case is concerned. The charge for the offence under
Section 297IPC, could in no circumstance, as pointed out by the
High Court, be described as falling within the purview of
Section 195 CrPC. The act of trespass was alleged to have been
committed subsequent to the making of the false report and all
the ingredients of the offence that have been held to have
been established on the evidence concern the conduct of the
appellants during the post-report period. In these
circumstances, no serious contention could be raised that the
provisions of Section 195 would stand defeated by the
Magistrate having taken cognizance of the offence under that
section.
14. As regards the charge under Section 500IPC, it seems fairly
clear both on principle and authority that where the
allegations made in a false report disclose two distinct
offences, one against the public servant and the other against a
private individual, that other is not debarred by the provisions
of Section 195 from seeking redress for the offence committed
against him. Section 499IPC, which mentions the ingredients of
the offence of defamation gives within defined limits immunity
to persons making depositions in court, but it is now well
settled that that immunity is a qualified one and is not absolute
as it is in English law. Under Section 198CrPC, 1898, a
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only be initiated at the instance of the person defamed, in like
manner as cognizance for an offence under Section 182 cannot
be taken except at the complaint of the public servant
concerned. In view of these provisions there does not seem in
principle any warrant for the proposition that a complaint
under Section 499 in such a situation cannot be taken
cognizance of unless two persons join in making it i.e. it can
only be considered if both the public servant and the person
defamed join in making it, otherwise the person defamed is
without any redress. The statute has prescribed distinct
procedure for the making of the complaints under these two
provisions of the Penal Code and when the prescribed
procedure has been followed, the court is bound to take
cognizance of the offence complained of.” (Emphasis supplied)
40. In Durgacharan Naik and Others v. State of Orissa reported
in AIR 1966 SC 1775, a process server had to execute a writ of
attachment against the judgment-debtors, however, there was
some resistance when he reached their village. After the arrival
of police, the judgment-debtors paid the decretal dues to the
process server. However, when the process server and the
police were leaving the village and were crossing a nearby river
in a boat, the appellant along with 10-12 persons threatened
to assault them if their money were not returned. The situation
had de-escalated upon the intervention of some outsiders and
subsequently, on the next morning, the ASI lodged an FIR
against the appellants. While the trial court had acquitted the
appellants, the High Court set aside the order of acquittal and
convicted them for the offence under Section 353 I.P.C. As
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observed that the prosecution was barred under Section 195
Cr.P.C. Finding no infirmity in the judgment of the High Court
and allowing the offences to be split up, this Court observed as
follows:
“5. We pass on to consider the next contention of the
appellants that the conviction of the appellants under Section
353 of the Indian Penal Code is illegal because there is a
contravention of Section 195(1) of the Criminal Procedure Code
which requires a complaint in writing by the process server or
the ASI It was submitted that the charge under Section 353 of
the Indian Penal Code is based upon the same facts as the
charge under Section 186 of the Indian Penal Code and no
cognizance could be taken of the offence under Section 186 of
the Indian Penal Code unless there was a complaint in writing
as required by Section 195(1) of the Criminal Procedure Code. It
was argued that the conviction under Section 353 of the Indian
Penal Code is tantamount, in the circumstances of this case, to
a circumvention of the requirement of Section 195(1) of the
Criminal Procedure Code and the conviction of the appellants
under Section 353 of the Indian Penal Code by the High Court
was, therefore, vitiated in law. We are unable to accept this
argument as correct. It is true that most of the allegations in
this case upon which the charge under Section 353 of the
Indian Penal Code is based are the same as those constituting
the charge under Section 186 of the Indian Penal Code but it
cannot be ignored that Sections 186 and 353 of the Indian
Penal Code relate to two distinct offences and while the
offence under the latter section is a cognizable offence, the
one under the former section is not so. The ingredients of thePage 15 of 20
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two offences are also distinct. Section 186 of the Indian Penal
Code is applicable to a case where the accused voluntarily
obstructs a public servant in the discharge of his public
functions but under Section 353 of the Indian Penal Code the
ingredient of assault or use of criminal force while the public
servant is doing his duty as such is necessary. The quality of the
two offences is also different. Section 186 occurs in Chapter X
of the Indian Penal Code dealing with contempts of the lawful
authority of public servants, while Section 353 occurs in
Chapter XVI regarding the offences affecting the human body.
It is well established that Section 195 of the Criminal Procedure
Code does not bar the trial of an accused person for a distinct
offence disclosed by the same set of facts but which is not
within the ambit of that section. […]
6. In the present case, therefore, we are of the opinion that
Section 195 of the Criminal Procedure Code does not bar the
trial of the appellants for the distinct offence under Section
353 of the Indian Penal Code, though it is practically based on
the same facts as for the prosecution under Section 186 of the
Indian Penal Code.” (Emphasis supplied)
41. While deciding whether the distinct offences can be split
up, courts must remain circumspect. It is agreed that, the law is
not that once the facts of a given case disclose an offence
falling within the scope of Section 195 Cr.P.C. and also other
offences, prosecution can be launched regarding the latter only
upon the complaint of the court or the lawfully authority
concerned. To hold otherwise would be to extend the scope of
Section 195 Cr.P.C. to regions and horizons not contemplated
by the legislature. The facts in a case may give rise to distinctPage 16 of 20
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offences including offences against the authority of public
servants or against public justice, as also offences against
private individuals; the bar under Section 195 of the Cr.P.C.
cannot, in such circumstances, affect the offences other than
those against public authority or public justice. Prosecution for
such other offences does not require the instrumentality of the
public authority or court. However, the position may be
different when during the course of the same transaction
offences falling within the two categories are committed. In
such cases, it may not be possible to split up the transaction,
and to hold that there can be valid prosecution for offences not
mentioned in Section 195 of the Cr.P.C., without the written
complaint of the public authority or the court, as the case may
be. Courts must be able to see through any attempt to render
Section 195 of the Cr.P.C. nugatory by hiding the real nature of
the transaction by verbal jugglery. If in principle and substance
the offence alleged falls within the categories mentioned in
Section 195, the operation of the bar cannot be avoided; if in
essence the alleged offence falls outside the categories, the bar
would not operate. At the same time, if the facts give rise to
distinct offences, some attracting the operation of Section 195
and others not so, the bar can operate only regarding the
former and not regarding the latter.
42. Therefore, the courts must ascertain whether during the
course of a single transaction, the offences falling within both
the categories are committed, in which case it would be
difficult to split up the offences or, whether there are two
different transactions which occur successively, nevertheless
separately and distinctively, in which case the offences may bePage 17 of 20
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split up. One another aspect that may be looked into is
whether, apart from the offences committed in contempt of
lawful authority of public servants, or against public justice or,
relating to documents given in evidence which fall under the
scope of Section 195 Cr.P.C., the other distinct offences are of
such a nature that private individuals are aggrieved. In such a
scenario, it would not be reasonable to bar a private
prosecution by the aggrieved individual for the reason that the
public official or the court concerned has also not instituted a
complaint.
43. Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking
cognizance of the offence punishable under Section 186 I.P.C.,
unless there is a written complaint by the public servant for
voluntarily obstructing him from discharge of his public
functions. The object of this provision is to provide for a
particular procedure in a case of voluntarily obstructing a
public servant from discharging his public functions. The court
lacks competence to automatically take cognizance in certain
types of offences enumerated therein. The legislative intent
behind such a provision has been that an individual should not
face criminal prosecution instituted upon insufficient grounds
by persons actuated by malice, ill-will or frivolity of disposition
and also to save the time of the criminal courts being wasted
by endless prosecutions. This provision has been carved out as
an exception to the general rule contained under Section 190
Cr.P.C. that any person can set the law in motion by making a
complaint, as it prohibits the court from taking cognizance of
certain offences until and unless a complaint has been made by
some particular authority or person. Other provisions in thePage 18 of 20
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Cr.P.C. like sections 196 and 198 respectively do not lay down
any rule of procedure, rather, they only create a bar that unless
some requirements are complied with, the court shall not take
cognizance of an offence described in those Sections. [See:
Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel
Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935;
Surjit Singh & Ors v. Balbir Singh, (1996) 3 SCC 533; State of
Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K.
Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352;
Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR
2005 SC 2119]
44. The test of whether there is evasion or non-compliance of
Section 195 Cr.P.C. or not, is whether the facts disclose
primarily and essentially an offence for which a complaint of
the court or of a public servant is required. In Basir-ul-Haq &
Ors. (supra) and Durgacharan Naik & Ors. (supra), this Court
cautioned that the provisions of this Section cannot be evaded
by describing the offence as one being punishable under some
other sections of I.P.C., though in truth and substance, the
offence falls in a category mentioned in Section 195 Cr.P.C.
Thus, cognizance of such an offence cannot be taken by mis-
describing it or by putting a wrong label on it.”
6.2. In the present case, the FIR was lodged for the offence
punishable under Section 188 (disobedience to an order duly
promulgated by a public servant) of the IPC and under Section 56
of the Disaster Management Act (failure of officer in duty or
connivance at the contravention of the provisions of the Act).
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Section 188 would attract the mischief of Section 195(1)(a) of the
Cr.P.C. and except on a complaint as defined under Section 2(d)
of the Cr.P.C., cognizance of the same cannot be taken. Since the
present case forms an integral part of the same transaction, for
which the offences under the Disaster Management Act cannot
be segregated, the FIR registered for the offences punishable
under Section 188 of the IPC and Section 56 of the Disaster
Management Act cannot be allowed to be sustained as there is
no other offence alleged against the applicant. In that
background, the impugned FIR deserves to be quashed and set
aside.
7. Resultantly, the present application is allowed. FIR No. C. R.
1121101520051 of 2020 registered with Dhangadhra City Police
Station is hereby quashed and set aside.
(M. K. THAKKER,J)
Vikramsinh Amarsinh
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