2019 NearLaw (BombayHC Nagpur) Online 2492
Bombay High Court

JUSTICE Z. A. HAQ JUSTICE PUSHPA V. GANEDIWALA

Prakash s/o Suresh Hatwar Vs. State of Maharashtra & Ors.

CRIMINAL APPLICATION (APL) NO. 702 OF 2017

23rd September 2019

Petitioner Counsel: Shri P. S. Jaiswal
Respondent Counsel: Shri S. J. Kadu
Act Name: Indian Penal Code, 1860 Bombay Police Act, 1951 Code of Criminal Procedure, 1973

HeadNote : This is an application for quashing of First Information Report No420/2017 dated 11/09/2017 registered at Police Station, Mouda, District Nagpur (Rural) for the offences punishable under Sections 143, 504, 506 and 188 of the Indian Penal Code read with Sections 134 and 135 of the Bombay Police Act, 1951 (hereinafter referred to as the Act of 1951 in short).
1 and 2 submits that a notification dated 01/09/2017 issued by the Additional District Magistrate, Nagpur under Section 37(1)(3) of the Act of 1951 was in force to prevent commission of certain acts, to maintain peace and public order and safety.
The applicant was served with notice under Section 149 of the Code of Criminal Procedure restraining him not to indulge in any activity.
On a query, the learned APP could not show the date of issuance of notice allegedly issued under Section 149 of the Code of Criminal Procedure to the applicant.
The applicant, alongwith 120 other persons has been roped in the FIR for the alleged offences.
As per Section 149, notice under this section is issued to prevent the commission of a cognizable offence.
In the instant case, the impugned FIR shows accusations of the offences punishable under Sections 504 and 506 of the Indian Penal Code which are non-cognizable offences.
For the offence punishable under Section 188 of the Indian Penal Code, as per Section 195 of the Code of Criminal Procedure, cognizance can be taken by the Court only on the complaint in writing of the public servant concerned.
As far as the offence punishable under Section 143 of the Indian Penal Code is concerned, the impugned FIR does not disclose the existence of any of the objects as is/are required under Section 141 of the Indian Penal Code for forming an un-lawful assembly.
The offences punishable under Sections 134 and 135 of the Act of 1951 are also non-cognizable offences.
As such, we are inclined to allow the application and the same is accordingly allowed in terms of prayer clause (2).
We quash the FIR No 420/2017 for the offences punishable under Sections 143, 504, 506 and 188 of the Indian Penal Cod.e read with Section 134 and 135 of the Bombay Police Act, 1951 registered at Police Station, Mouda, Nagpur.
Rule is made absolute in the aforesaid terms.

Section :
Section 141 Indian Penal Code, 1860 Section 143 Indian Penal Code, 1860 Section 504 Indian Penal Code, 1860 Section 506 Indian Penal Code, 1860 Section 188 Indian Penal Code, 1860 Section 37(1)(3) Bombay Police Act, 1951 Section 134 Bombay Police Act, 1951 Section 135 Bombay Police Act, 1951 Section 149 Code of Criminal Procedure, 1973

Cases Cited :

JUDGEMENT

PUSHPA V. GANEDIWALA, J.

Rule. Rule is made returnable forthwith. Heard finally with the consent of both the parties.

2. This is an application for quashing of First Information Report No.420/2017 dated 11/09/2017 registered at Police Station, Mouda, District Nagpur (Rural) for the offences punishable under Sections 143, 504, 506 and 188 of the Indian Penal Code read with Sections 134 and 135 of the Bombay Police Act, 1951 (hereinafter referred to as “the Act of 1951” in short).

2. The case of the informant, as has been narrated in the impugned F.I.R., in short is that on 11/09/2017, the accused persons, who are around 120 in number, without obtaining permission from the District Collector, Nagpur under the Act of 1951, formed an un-lawful assembly at the National Highway No.6, Toll Plaza, Mathni at 12.00 pm to inaugurate the branch of Prahar Toll Labour Association by using loud speaker.

3. The learned APP for the non-applicant Nos. 1 and 2 submits that a notification dated 01/09/2017 issued by the Additional District Magistrate, Nagpur under Section 37(1)(3) of the Act of 1951 was in force to prevent commission of certain acts, to maintain peace and public order and safety. The applicant was served with notice under Section 149 of the Code of Criminal Procedure restraining him not to indulge in any activity.

4. On a query, the learned APP could not show the date of issuance of notice allegedly issued under Section 149 of the Code of Criminal Procedure to the applicant. The applicant, alongwith 120 other persons has been roped in the F.I.R. for the alleged offences.

5. As per Section 149, notice under this section is issued to prevent the commission of a cognizable offence. In the instant case, the impugned F.I.R. shows accusations of the offences punishable under Sections 504 and 506 of the Indian Penal Code which are non-cognizable offences. For the offence punishable under Section 188 of the Indian Penal Code, as per Section 195 of the Code of Criminal Procedure, cognizance can be taken by the Court only on the complaint in writing of the public servant concerned. As far as the offence punishable under Section 143 of the Indian Penal Code is concerned, the impugned F.I.R. does not disclose the existence of any of the objects as is/are required under Section 141 of the Indian Penal Code for forming an un-lawful assembly. The offences punishable under Sections 134 and 135 of the Act of 1951 are also non-cognizable offences.

6. In this view of the matter, we do not find any case for registering cognizable offence is made out. As such, we are inclined to allow the application and the same is accordingly allowed in terms of prayer clause – (2). We quash the F.I.R. No. 420/2017 for the offences punishable under Sections 143, 504, 506 and 188 of the Indian Penal Cod.e read with Section 134 and 135 of the Bombay Police Act, 1951 registered at Police Station, Mouda, Nagpur.”

7. Rule is made absolute in the aforesaid terms.