RAMKUBHAI VALKUBHAI DHAKHDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr.Ashish M. Dagli for the applicant and learned APP Ms.D.S.Pandit for the respondent No.1 State of Gujarat. Notice is served to respondent No.2.

(2.) The present respondent No.2, original complainant Raghjibhai Hemabhai Patel, being a Chief Officer of Rajula Municipality on 20.10.2003 had been directed by present applicant, original accused, who was President of Rajula Municipality, at 5.30 p.m. to sign a cheque as Chief Officer of Municipality. When complainant, respondent No.2 herein brought to the notice of the accused that being a Chief Officer, he would sign the second cheque only when first cheque was presented before the Bank. On saying so by the complainant, the accused, present applicant got excited and assaulted complainant with a knife and caused hurt as well as administered threat to kill. The complainant, Chief Officer presented a complaint before the Police Station at Rajula and obtained medical treatment. The complaint came to be registered for the charge under Sections 332, 324, 504 and 506(2) of the Indian Penal Code and under Section 135 of the Bombay police Act, 1902. A charge-sheet of abovesaid offences was submitted before the learned Judicial Magistrate (F.C.) at Rajula which was registered as Criminal Case No.81 of 2004. At the stage of framing of the charge, the accused i.e. present applicant presented an application at Ex.11 before learned Magistrate to drop the proceedings against him by virtue of the provisions of Sections 73 and 254 of the Gujarat Municipality Act as well as according to the accused, the alleged act was committed in pursuance of official duty and no Court can take cognizance of said offences under Section 197 of Code of Criminal Procedure for want of necessary sanction. It was also contended that no Court can take cognizance of the said offence under Section 195(1)(a)(i), as in fact the act alleged was covered under Section 186 of the Indian Penal Code and Section 332 is a broader form of the offence as defined under Section 186 of the Indian Penal Code. The stand was taken that the offence under Section 332 of the Indian Penal Code can only be said to have been committed, if the offence under Section 186 of the Indian Penal code is committed. It was, therefore, urged that the offence of Section 332 includes the offence under Section 186 of the Indian Penal Code and cognizance was clearly barred by Section 195(1)(a)(i) as there was no complaint by concerned public servant as envisaged. The learned Judicial Magistrate (F.C.), Rajula, after relying upon certain decisions, accepted the plea of the accused and came to the conclusion that the offence under Section 332 of the Indian Penal Code was inclusive of an offence as defined under Section 186 of the Indian Penal Code and cognizance of which was barred by Section 195 as aforesaid unless conditions are fulfilled under Section 195 of the Code of Criminal Procedure. It was further observed by the learned Judicial Magistrate (F.C.) that the accused was a public servant by virtue of Section 73 of the Gujarat Municipality Act and also under Section 121 of the Indian Penal Code. Therefore also, taking of cognizance was barred by the Magistrate by virtue of Section 197 of the Code of Criminal Procedure as required sanction was not obtained, even under Section 254 of the Gujarat Municipality Act.

(3.) On filing Criminal Revision Application by the original complainant in the Court of Sessions at Amreli, the learned Sessions Judge, Amreli vide his order dated 21.02.2005 came to the conclusion that for the offences punishable under Sections 332, 324, 504 and 506(2) of the Indian Penal Code, neither the cognizance was barred nor sanction was required, either under Section 197 of the Code of Criminal Procedure or under Section 254 of the Gujarat Municipality Act. The learned Sessions Judge, Amreli quashed the order passed by the learned Judicial Magistrate below an application Ex.11 and an application filed by the present applicant came to be dismissed and hence, this Criminal Revision Application.