IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 16 CRIMINAL APPLICATION NO.2109 OF 2024 Babasaheb Gurushantappa Arawat, Age 52 yrs., Occ. Service as Assistant Commissioner, Social Welfare, R/o Office of the Assistant Commissioner, Social Welfare, Dharashiv, Tq. & Dist. Dharashiv. … Applicant … Versus … 1 The State of Maharashtra Through the Police Inspector, City Police Station, Dharashiv, Tq. & Dist. Dharashiv. 2 Dinesh Uttamrao Jadhav, Age 43 yrs., Occ. Service as API, R/o City Police Station, Dharashiv, Tq. & Dist. Dharashiv. … Respondents ... Mr. Ajinkya Reddy, Advocate for applicant Mr. A.R. Kale, APP for respondent Nos.1 and 2 ... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. DATE : 09th MAY, 2025 2025:BHC-AUG:14213-DB 2 16_Cri.Appln_2109_2024 ORDER : ( PER : SMT. VIBHA KANKANWADI, J. ) 1 Present application has been filed for quashment of First Information Report vide Crime No.133/2024 dated 28.03.2024 registered with City Police Station, Dharashiv, for the offence punishable under Sections 187, 188 of the Indian Penal Code, 1860. 2 Heard learned Advocate Mr. Ajinkya Reddy for applicant and learned APP Mr. A.R. Kale for respondent Nos.1 and 2. 3 Present applicant is serving as Assistant Commissioner, Social Welfare, Dharashiv. Respondent No.2 in his official capacity had given a letter to applicant that two employees serving under him should be made available as panch witnesses, however, applicant is stated to have not responded and, therefore, First Information Report has been registered. 4 Learned Advocate appearing for applicant submits that when applicant had received the communication from respondent No.2, in response thereto he had made communication regarding the scarcity of employees for supplying them as panch witnesses. In fact, after the Government Resolution dated 12.05.2015 was issued, present applicant had made communication that due to scarcity of employees it will not be possible to send the employees 3 16_Cri.Appln_2109_2024 working under him to act as panch in various matters. Therefore, he prayed for making the panch available from other departments also and give it in rotation to the Police Station. Accordingly, the Sub Divisional Magistrate had fixed the days. As per the said rotation, since it was Tuesday, it is stated that a letter was given to applicant to supply the employees, however, by letter dated 26.03.2024 applicant gave his inability. It was specifically stated that on each Tuesday one employee was sent since last three years to act as panch. This arrangement is causing difficulty in functioning of the office work and, therefore, he had refused to make the panch witness available. It cannot be stated that thereby he has committed any offence. He relies on the decision of this Court in Yogesh Sahebrao Sonwane vs. The State of Maharashtra and another in Criminal Writ Petition No.1097 of 2024 decided on 03.02.2025. He also relies on the decision in Swararaj @ Raj Shrikant Thackeray vs. State of Maharashtra [AIR OnLine 2023 BOM 2014], wherein it has been held that - “Cognizance of offence under Section 188 of the Indian Penal Code can be taken by Magistrate only on the basis of complaint in writing of public servant concerned or of some other public servant to whom he is administratively subordinate.” Thereby it is then held that First Information Report is not maintainable. Therefore, there is no necessity to exercise powers under 4 16_Cri.Appln_2109_2024 Section 482 of the Code of Criminal Procedure. 5 Per contra, learned APP strongly opposed the application and submits that every citizen is supposed to help the police in order to have authenticity and reduce the hostility of panch witness. The State Government has taken step and issued circular dated 12.05.2015. It was the bounden duty of the applicant to provide panch witness i.e. the employee serving under him to act as panch witness. Even his own arrangement was considered by Sub Divisional Magistrate, Osmanabad and for his office Tuesday was fixed. Under such circumstance, he could not have then refused to send any person. 6 It is very much unfortunate that still a mentality prevails in the Police Department that everybody should give preference to the work directed by the police or to help the police. Of course, every citizen is duty bound to help the police, but that does not mean that refusal of the same should be considered as an offence in all the situations. In order to better understand the facts, especially the ingredients of the offence we would like to reproduce the relevant part of First Information Report : “R;ko:u vkEgh iks-LVs- /kkjkf’ko 'kgj xqju 130@2024 dye 307] 353] 332] 143] 147] 148] 149] 336] 109] 504] 506 Hkknfolg dye 3 lkoZtfud ekyeRrk fonzqihdj.k vf/kfu;e lg dye 135 eiksdk izek.ks fnukad 26-03- 5 16_Cri.Appln_2109_2024 2024 jksth nk[ky vlY;kus lnj xqUg;krhy ?kVukLFkG iapukek o tIrh iapukek dj.ksdkeh nksu 'kklfd; iap miyC/k d:u ns.ksckcr iks-LVs-/kkjkf’ko 'kgj tk-dza-1015@2024 fnukad 26-03-2024 vUo;s i= r;kj d:u chV vaeynkj iksgsdkW@379 xykaMs] 872 ikVhy nks?ks us- iks-LVs- /kkjkf’ko 'kgj ;kauk lekt dY;k.k vf/kdkjh] dk;kZy; /kkjkf’ko ;sFks Bjowu fnysyk eaxGokj gk okj vlY;kus ikBfo.;kr vkys gksrs- lnj i=kph vkod ?ksowu myV Vikyh lekt dY;k.k /kkjkf’ko ;kaps tk-dza- /kkjk@vkLFkk@iks-iap@2023&2024@1192 fnukad 26-03-2024 vUo;s lgk-vk;qDr Jh- ch-th- vjor ;kaps Lok{kjhus xaHkhj xqUg;kps rikldkeh nksu 'kklfd; iap miyC/k d:u ns.ks ckcr eqy%r vls deZpkjh iqjfo.;kckcr rjrqn ulY;kps myV Vikyh ys[kh i= nsoqu 'kklfd; iap iqjfoys ukgh- R;keqGs vkEgh lnj xaHkhj xqUg;kps ?kVukLFkG iapukek o tIrh iapukek dj.ksdkeh ,suosGsl [kktxh iap miyC/k d:u R;kaps le{k iapukek dsyk vkgs- lnj xqUgk gk vfr’k; xaHkhj Lo:ikpk vlY;kus o 'kklukps vkns’k vlrkuk lq/nk lekt dY;k.k lgk-vk;qDr Jh- ch-th- vjor lekt dY;k.k /kkjkf’ko ;kauh 'kklfd; iap iqjfoys ukgh- R;kauh 'kklukps vkns’kkps o ek- ftYgkf/kdkjh] /kkjkf’ko ;kaps vkns’kkps voeku d:u vkns’kkps mYya?ku dsys vkgs Eg.kwu ek>h lgk-vk;qDr Jh- ch-th- vjor lekt dY;k.k dk;kZy;] /kkjkf’ko ;kaps fo:/n dye 188] 187 Hkknfo izek.ks dk;nsf’kj fQ;kZn vkgs-” Section 187 of the Indian Penal Code punishes a person being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, therefore, the basic ingredients here the willful neglect or intentional omission to arrest a public servant. Here, the fact is not in dispute that immediately to the Police Inspector, who was conducting the investigation in the offence under Section 307 of the Indian Penal Code, the present applicant 6 16_Cri.Appln_2109_2024 gave it in writing as to what is the problem with him for not supplying or making available the Government Servants under him for the purpose of panchnama. He has stated that due to scarcity of employees it will not be possible to send the employees working under him to act as panch in various matters. Here, refusal is different than inability due to genuine reason. Here, the letter which was given by the present applicant clearly demonstrates his inability for a genuine reason. It is not the case in First Information Report that the reason that was given in the letter was found to be false or incorrect. Therefore, the basic ingredient of Section 187 of the Indian Penal Code was not at all attracted. 7 For Section 188 of the Indian Penal Code we would like to rely on the decision in Ram Monohar Lohia and others vs. State of Uttar Pradesh and others [AIR 1968 Allahabad 100], wherein it has been held and it can also be spelt from the section itself that - “In order to attract the section following ingredients are mandatory : 1) that there must be an order promulgated by the public servant; 2) that such public servant is lawfully empowered to promulgate it; 3) that the person with knowledge of such order and being directed by such order to abstain from doing certain act or to take certain order with certain property in his possession and under his management has disobeyed; and 4) that such disobedience causes or tends to cause (a) obstruction, annoyance or risk of it to any person lawfully 7 16_Cri.Appln_2109_2024 employed; or (b) danger to human life, health or safety; or (c) a riot or affray.” Here, the letter given by informant in the case under Section 307 of the Indian Penal Code cannot be considered as promulgation, because he himself was relying upon the Government Resolution dated 12.05.2015. Perusal of the said Government Resolution would show that it was issued in the background that panchas were turning hostile and because of which the percentage of conviction was going down and, therefore, if the Government Servants are taken as panchas, then it would help in solving the problem of hostility of the panchas. It is stated in clause (ii) that in those offences where the punishment is seven years or more than that, then the Investigating Officer should as far as possible engage the Government Servant as panch [ 2½ T;k xqUg;ke/;s lkr o"kZs fdaok lkr o"kkZis{kk tkLr f’k{kk uewn dsyh vlsy v’kk izdj.kkae/;s riklh vaeynkjh ;kauh 'kD;rksoj ljdkjh deZpk&;kph iap Eg.kwu lsok ?;koh-] The word is used ‘as far as possible’, therefore, it was not compulsory as such and secondly when the letter was given by informant, in a way threat has been given that if in spite of receipt of letter such employee is not made available, then it would amount to offence under Section 187, 188 of the Indian Penal Code. Panchas are not to be procured by giving threats. It is a voluntary act. It appears that informant himself had not understood to Government Resolution and, therefore, at the cost of repetition, we say that 8 16_Cri.Appln_2109_2024 the letter which he has given dated 26.03.2024 cannot be considered as an order promulgated under a law. Government Resolution is not a law. Of course, it has to be followed. 8 Even it appears that after First Information Report was registered against applicant, there was a communication from Commissioner, Social Welfare Department, Mumbai to District Magistrate and District Superintendent of Police, Dharashiv regarding the sentiments of employees working in the Department of Social Welfare. Those persons are required to act as panch, time and again, and still they are supposed to work in their official capacity and achieve the targets those are given to them. They would also be then required to appear before the Court for giving evidence. The security of the employees at Dharashiv was also highlighted. It also appears that District Magistrate/Collector had taken cognizance of the said letter and by letter dated 04.04.2024 had given a communication to District Superintendent of Police, Dharashiv regarding the sentiments and asked him to give directions to abstain the Police Officers from lodging offences for not supplying the panch witness i.e. the employees. We again highlight that the Police Officers cannot make it compulsory to any citizen even the employee that they should help the Police Officers. Though there is a duty that does not mean that there is a compulsion and when the applicant as the head of 9 16_Cri.Appln_2109_2024 the said Department was putting his difficulty in writing, it cannot be taken as a willful disobedience of any order. It would be unjust to ask the applicant to face the trial and, therefore, this is a fit case where we should exercise our powers under Section 482 of the Code of Criminal Procedure. Hence, following order. ORDER i) Criminal Application stands allowed. ii) First Information Report vide Crime No.133/2024 dated 28.03.2024 registered with City Police Station, Dharashiv, for the offence punishable under Section 187, 188 of the Indian Penal Code, 1860, stands quashed and set aside as against applicant Babasaheb Gurushantappa Arawat. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd