BECHAR VALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code') for obtaining following reliefs:

(2.) The aforesaid FIR being CR. No.II - 144/2000 has been registered before the concerned police station for offence an punishable under section 188 of IPC alleging that the informant was appointed as a watchman in respect of the disputed property by the Liquidator and that the petitioners herein have violated the proclamation issued in this behalf and they committed trespass in respect of the land in question and also collected the cotton sown and grown and thereby committed offence punishable under section 188 of IPC. The offence is said to have taken place at 8 0'clock on 31.12.2000 and the FIR was filed at 12.15 p.m. on the same day. The informant is the watchman appointed as aforesaid. The petitioners are shown as accused persons in the said FIR, they have come out with this application stating that the offence punishable under section 188 of IPC is such that the Court cannot take cognizance in respect of such an offence unless a complaint has been filed before the court by the persons stated in Section 195 of the Code. It is contended by the learned Advocate for the petitioners herein that the informant is not a public servant and the court would not be in a position to take cognizance of the offence punishable under section 188 of IPC, even if the investigation is concluded and charge sheet is filed. That therefore, the said FIR is required to be quashed. Another contention raised by the learned Advocate for the petitioners is that the said land has been allotted to a Cooperative Society namely; Ambedkar Samuday Kheti Sahkari Mandli Ltd., Taluka Dashada, Dist. Surendranagar. That therefore, the petitioners have a right to cultivate the said land and, therefore, no offence can be said to have been committed by them. Therefore, even on this account the said FIR is sought to be quashed and set aside.

(3.) Rule was issued and learned APP, Mr L R Pujari appears for the State whereas the contesting respondent is being represented by Learned Advocate Mr Y H Vyas. I have heard learned Advocate for the petitioner Mr M V Patel, Mr Y H Vyas, learned Advocate for the contesting respondent and Mr L R Pujari, learned APP for the State. Mr M V Patel, learned Advocate for the petitioner has argued at great length stating that the court cannot take cognizance in respect of the offence punishable under section 188 of IPC in view of the provisions of section 195 of the Code. In fact the said provision is not in dispute. However, with a view to complete the judgment, it would be appropriate to refer to the provisions made in section 195 of the said Code as follows: