MOHAMMADHUSSAIN CHUTTANBHAI SHEKH vs STATE OF GUJARAT

R/CR.MA/10909/2021 JUDGMENT DATED: 21/10/2026
(GJHC240318312021)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10909 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE P. M. RAVAL

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Approved for Reporting Yes No
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MOHAMMADHUSSAIN CHUTTANBHAI SHEKH & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1,2
MR. ROHAN SHAH, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE P. M. RAVAL

Date : 21/10/2026

ORAL JUDGMENT
1. The applicants have invoked the inherent powers of this
Court under Section 482 of the Code of Criminal Procedure,
1973 (hereinafter referred to as “the Cr.P.C.”), inter alia , seeking
to quash and set aside the FIR being C.R. No. I-105 of 2019,
registered with Karanj Police Station, Ahmedabad, for the
offences punishable under Sections 332, 294(b), 506(1), 506(2),
186 and 114 of the Indian Penal Code, 1860 (hereinafter referred
to as “the IPC”) dated 18.07.2019.
2. Heard the learned advocates for the applicants, the learned
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advocate for the original complainant and the learned APP for
the respondent-State.
3. Without entering into the merits of the case, learned
advocate for the applicants, at the very threshold, submitted that
the application deserves to be allowed on the ground that the
impugned FIR is not maintainable in view of the bar contained in
Section 195 of the Cr.P.C. Learned advocate for the original
complainant, as well as the learned APP, could not point out that
the requirements of Section 195 of the Cr.P.C. had been
complied with in the present case.
4. At this juncture, it would be apt to refer to the relevant
provisions of Sections 186 of IPC and 195 of the Cr.P.C., which
read as under:-
Section 186 of the Indian Penal Code, 1860
“Whoever voluntarily obstructs any public servant in the discharge of
his public functions, shall be punished with imprisonment of either
description for a term which may extend to three months, or with fine
which may extend to five hundred rupees, or with both.”
Section 195 of the Code of Criminal Procedure, 1973
195. Prosecution for contempt of lawful authority of public servants, 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
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some other public servant to whom he is administratively
subordinate;”
5. In the present case, learned advocate for the applicants
has relied upon the decision of the Hon’ble Supreme Court in
Devendra Kumar v. State (NCT of Delhi), reported in 2025
INSC 1009 , in support of the contention that the statutory
requirements under Section 195 of the Cr.P.C. are required to be
complied with in respect of the offences covered by the said
provision. In the case of Devendra Kumar (supra) it is held as
follows:
“59. We may summarize our final conclusion as
under:
(i)Section 195(1)(a)(i) of the Cr.P.C. bars the court
from taking cognizance of any offence
punishable under Sections 172 to 188
respectively of the I.P.C., unless there is a
written complaint by the public servant
concerned or his administrative superior, for
voluntarily obstructing the public servant from
discharge of his public functions. Without a
complaint from the said persons, the court would
lack competence to take cognizance in certain
types of offences enumerated therein.
(ii) If in truth and substance, an offence falls in
the category of Section 195(1)(a)(i), 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 disclosed
in the same set of facts. However, it also cannot
be laid down as a straitjacket formula that the
Court, under all circumstances, cannot
undertake the exercise of splitting up. It would
depend upon the facts of each case, the nature
of allegations and the materials on record.
(iii) Severance of distinct offences is not
permissible when it would effectively circumvent
the protection afforded by Section 195(1)(a)(i) of
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the Cr.P.C., which requires a complaint by a
public servant for certain offences against public
justice. This means that if the core of the offence
falls under the purview of Section 195(1)(a)(i), it
cannot be prosecuted by simply filing a general
complaint for a different, but related, offence.
The focus should be on whether the facts, in
substance, constitute an offence requiring a
public servant’s complaint.
(iv) In the aforesaid context, the courts must
apply twin tests. First, the courts must ascertain
having regard to the nature of the allegations
made in the complaint/FIR and other materials
on record whether the other distinct offences not
covered by Section 195(1)(a)(i) have been
invoked only with a view to evade the
mandatory bar of Section 195 of the I.P.C. and
secondly, whether the facts primarily and
essentially disclose an offence for which a
complaint of the court or a public servant is
required.
(v) Where an accused is alleged to have
committed some offences which are separate
and distinct from those contained in Section 195,
Section 195 will affect only the offences
mentioned therein. However, the courts should
ascertain whether such offences form an integral
part and are so intrinsically connected 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
Section 195 of the Cr.P.C. This would all depend
on the facts of each case.
(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the
Cr.P.C. respectively do not control or
circumscribe the power of the police to
investigate, under the Criminal Procedure Code.
Once investigation is completed then the
embargo in Section 195 would come into play
and the Court would not be competent to take
cognizance. However, that Court could then file
a complaint for the offence on the basis of the
FIR and the material collected during
investigation, provided the procedure laid down
in Section 340 of the Cr.P.C. is followed.
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60. In view of the aforesaid, we dispose of this
petition leaving it open to the petitioner to raise
the contention as regards the bar of Section 195
of the Cr.P.C. before the trial court if at all, at the
end of the investigation, chargesheet is filed for
the offences enumerated above in the FIR.”
6. This Court has carefully considered the submissions
advanced by the respective parties and perused the material
available on record.
7. The primary question that falls for consideration of this
Court is whether the registration of the FIR and subsequent
continuation of criminal proceedings for an offence under
Section 186 of the IPC and other offences in the absence of a
written complaint by the public servant concerned or their
administrative superior is sustainable in the eyes of law.
8. A plain reading of Section 195(1)(a)(i) of the Cr.P.C. reveals
a clear, unambiguous, and mandatory statutory bar. It explicitly
mandates that no Court shall take cognizance of any 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 they are administratively
subordinate. The object underlying this provision is to protect
public servants from vexatious or frivolous prosecutions and to
ensure that cognizance of offences against their lawful authority
is taken only upon a formal, written complaint initiated by the
affected public authority itself, rather than through a standard
police report (charge-sheet) stemming from a private FIR. In the
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case on hand in truth and substance, the alleged offence falls in
the category of Section 195(1)(a)(i), therefore, 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 disclosed in the same set of facts. The core of the
offence alleged in the FIR falls under the purview of Section
195(1)(a)(i), it cannot be prosecuted by simply filing a general
complaint for a different, but related, offence. Thus, on facts, in
substance, the allegations constitute an offence requiring a
public servant’s complaint as provided under section 2(d) of the
Cr.P.C.
9. In the present case, a perusal of the record indicates that
the FIR was registered pursuant to a routine information (FIR),
and not via a complaint in writing filed by the aggrieved public
servant in accordance with Section 2(d) read with Section 195 of
the Cr.P.C. Learned APP could not demonstrate that a written
complaint as mandated by law was ever placed on record or
formed the basis of the prosecution.
10. It is a well-settled principle of criminal jurisprudence that
where a statute prescribes a specific procedure or a condition
precedent for taking cognizance of an offence, that procedure
must be strictly adhered to. Permitting a criminal prosecution to
proceed in blatant disregard of Section 195 of the Cr.P.C. would
bypass legislative intent and result in a gross abuse of the
process of the court.
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11. Furthermore, although the FIR includes offences under
Sections 332, 294(b), 506(1), 506(2), 186 and 114 of the IPC, the
core gravamen of the prosecution arises from the alleged
obstruction of a public servant in the discharge of public duties.
The bar under Section 195 Cr.P.C. cannot be circumvented by
clubbing offences under the IPC to bypass the statutory
safeguard enacted for offences under Chapter X of the IPC by
splitting them up and proceeding further against the accused for
the other distinct offences disclosed in the same set of facts.
Consequently, the entire substratum of the prosecution stands
vitiated due to this incurable legal infirmity.
12. In view of the mandatory statutory bar under Section 195
of the Cr.P.C. and the binding judicial precedent of the Hon’ble
Supreme Court in Devendra Kumar (supra) , the continuation of
criminal proceedings against the applicant pursuant to the
impugned FIR is not permissible.
13. Accordingly, the application is partly allowed. The First
Information Report being C.R. No. I-105 of 2019, registered with
Karanj Police Station, Ahmedabad, and all consequential
proceedings emanating therefrom, are hereby quashed and set
aside qua the applicants. However, the State/complainant is at
liberty to prefer complaint in accordance with law if so advised
and if such complaint is lodged shall consider the provisions of
section 473 of Cr.P.C./519 of BNSS for offences punishable for
imprisonment for term exceeding 1 year but up to 3 years since
for such offences limitation is 3 years.
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R/CR.MA/10909/2021 JUDGMENT DATED: 21/10/2026
(GJHC240318312021)
14. Rule is made absolute to the aforesaid extent. Direct
service is permitted.
(P. M. RAVAL, J)
CDP
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