IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 10 CRIMINAL WRIT PETITION NO.1097 OF 2024 Yogesh Sahebrao Sonwane, Age 36 yrs., Occ. Service, Assistant Engineer, MSEDCL, R/o RH-4/6, Ashtavinayak Nagar, Near Garware Stadium, MIDC, Chikalthana, Chhatrapati Sambhajinagar, Tq. & Dist. Chhatrapati Sambhajinagar. … Petitioner … Versus … 1 The State of Maharashtra Through the Police Inspector/ Investigating Officer, Pundliknagar Police Station, Chhatrapati Sambhajinagar, Tq. & Dist. Chhatrapati Sambhajinagar. 2 Santosh Tukaram Pardhe, Age 48 yrs., Occ. Police Constable, R/o Pundliknagar Police Station, Chhatrapati Sambhajinagar, Tq. & Dist. Chhatrapati Sambhajinagar. … Respondents ... Mr. S.V. Mundhe, Advocate for petitioner Mr. G.A. Kulkarni, APP for respondent Nos.1 and 2 ... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. DATE : 03rd FEBRUARY, 2025 2025:BHC-AUG:4581-DB 2 10_Cri.WP_1097_2024 ORDER : ( PER : SMT. VIBHA KANKANWADI, J. ) 1 Present petition has been filed for quashment of First Information Report vide Crime No.109/2024 dated 03.04.2024 registered with Pundliknagar Police Station, Aurangabad, for the offence punishable under Section 187, 188 of the Indian Penal Code, 1860. 2 Heard learned Advocate Mr. S.V. Mundhe for petitioner and learned APP Mr. G.A. Kulkarni for respondent Nos.1 and 2. 3 Learned Advocate for petitioner has taken us through First Information Report and other documents, which was the official communication between petitioner and police. Petitioner is working as Assistant Engineer with Maharashtra State Electricity Distribution Company Limited, Section Office, Shivajinagar, Chhatrapati Sambhajinagar. Petitioner had received a communication dated 03.04.2024 for making him two panchas i.e. Government Servants working under him available for carrying out panchnama in respect of offence, which came to be registered vide Crime No.106/2024 under Section 307, 506 of the Indian Penal Code with Section 135 of the Maharashtra Police Act. The said letter was in pursuance to the Government Resolution passed by the Home Department, Maharashtra State dated 12.05.2015. The said letter was given by hand by the informant Police 3 10_Cri.WP_1097_2024 Hawaldar Mr. Santosh Tukaram Pardhe, however, the present petitioner told that it is not possible to make such employee available for panchnama. He gave a written communication back to informant immediately stating that three employees were engaged in cable fault in the electricity distribution, which arose on that day and, therefore, the informant says that it is an offence. Informant has not considered that preference was required to be given by petitioner to the work of solving the fault that had arose in the electricity distribution work. The preference would prevail and it was not the voluntary or intentional act of petitioner to show the inability to provide such employee. There was absolutely no intention on the part of petitioner to commit any offence and, therefore, it would be unjust to ask him to face the trial. 4 Learned APP only points out the Government Resolution dated 12.05.2015, wherein it is stated that the panchas who are the Government Servants should be taken for the help in drawing panchnama in an offence where the punishment is provided to seven years or more. 5 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 4 10_Cri.WP_1097_2024 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 : “lgk¸;d vfHk;ark Jh- ;ksxs’k lksuo.ks ;kauh vkt deZpkjh iap Eg.kwu miyC/k d:u nsrk ;s.kkj ulY;kps lkaxqu iks-mi-fu- lanhi dkGs ;kaps ukos R;kaps dk;kZy;kps egkforj.k e-jk-fo-fo-da- e;kZfnr] tk-dza- f’kokthuxj 45 fn- 03@04@2024 vUo;s fn- 03@04@2024 jksth vUo;s i= nsÅu R;ke/;s vkt fn- 03@04@2024 jksth dscy QkWYV vlY;keqGs frUgh deZpkjh fon;qr iqjoBk lqjGhr dj.;klkBh dke djr vkgs- fon;qr iqjoBk lqjGhr dj.;klkBh deZpk&;kaph vR;ar xjt vkgs- R;k dkj.kkus vkt fn- 03@04@2024 jksth vki.kkl iap miyC/k d:u nsÅ 'kdr ukgh vls ueqn dsys- lgk¸;d vfHk;ark Jh- ;ksxs’k lksuo.ks ;kauh iks-mi-fu- lanhi dkGs ;kauh deZpkjh iap Eg.kwu feG.;klkBh fnysY;k i=ke/;s iap miyC/k d:u u ns.ks gk Hkk-n-fo- dye 187] 188 izek.ks vijk/k vkgs ;kaph uksan ?;koh vls i=ke/;s uewn vlrkuk ns[khy tk.khoiwoZd nqyZ{k d:u 'kklu fu.kZ;kauqlkj yksdlsodkl lgk¸; ns.ks ca/kudkjd vlrkuk lgk¸; ns.;kps VkGys- rlsp yksdlsodkus fjrlj tkjh dsysY;k vkns’kkph voKk dsyh vkgs- djhrk ek>h lgk¸;d vfHk;ark Jh- ;ksxs’k lksuo.ks] ,e-,l-bZ-ch- dk;kZy;] f’kokthuxj ;kapsfo:/n Hkk-n-fo- dye 187] 188 uqlkj dk;ns’khj dk;ZokghlkBh 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 5 10_Cri.WP_1097_2024 immediately to the Police Sub Inspector, who was conducting the investigation in the offence under Section 307 of the Indian Penal Code, the present petitioner 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 there was a cable fault on the same day and in order to regularize the distribution of the electricity all the three employees presence is necessary. Here, refusal is different than inability due to genuine reason. Here, the letter which was given by the present petitioner 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. 6 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 6 10_Cri.WP_1097_2024 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 employed; or (b) danger to human life, health or safety; or (c) a riot or affray.” Here, the letter given by PSI Mr. Sandip Kale, the Investigating Officer 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 Police Sub Inspector Mr. Sandip Kale, 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 7 10_Cri.WP_1097_2024 Indian Penal Code. Panchas are not to be procured by giving threats. It is a voluntary act. It appears that PSI Mr. Sandip Kale himself had not understood to Government Resolution and, therefore, at the cost of repetition, we say that the letter which he has given dated 03.04.2024 cannot be considered as an order promulgated under a law. Government Resolution is not a law. Of course, it has to be followed. 7 Another point that is arising in this case is that when it is alleged that present petitioner has committed offence under Section 187 and 188 of the Indian Penal Code, then we will have to take note of Section 195(1) of the Code of Criminal procedure. It states that no Court shall take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code or ……………… except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. It was specifically asked to learned APP as to whether Mr. Sandip Kale, the Investigating Officer had given written directions to informant Police Hawaldar Mr. Santosh Pardhe to lodge a First Information Report. Upon instructions, it is stated that no such written directions were given. The question, therefore, is, why Mr. Sandip Kale himself had not lodged the First Information Report. Interestingly, the police papers show that Mr. Sandip Kale himself had then given notice under 8 10_Cri.WP_1097_2024 Section 41(A)(1) of the Code of Criminal Procedure to the petitioner. This is all tainted and with ulterior motive may be to teach a lesson or was made as ego point by Mr. Sandip Kale. We, therefore, of the opinion that ingredients of offence are absolutely not made out. The First Information Report appears to have been lodged with some ulterior motive. In fact, even Mr. Sandip Kale, PSI also cannot estopped the petitioner from discharging his duty and the preference which petitioner had given was to the restoration of the electricity supply. It would be unjust to ask the petitioner 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 Writ Petition stands allowed. ii) First Information Report vide Crime No.109/2024 dated 03.04.2024 registered with Pundliknagar Police Station, Aurangabad, for the offence punishable under Section 187, 188 of the Indian Penal Code, 1860, stands quashed and set aside as against petitioner. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd