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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD10 CRIMINAL WRIT PETITION NO.1097 OF 2024Yogesh 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 …1The State of MaharashtraThrough the Police Inspector/Investigating Officer,Pundliknagar Police Station,Chhatrapati Sambhajinagar,Tq. & Dist. Chhatrapati Sambhajinagar. 2Santosh 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 petitionerMr. G.A. Kulkarni, APP for respondent Nos.1 and 2...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE:03rd FEBRUARY, 2025 210_Cri.WP_1097_2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Present petition has been filed for quashment of FirstInformation Report vide Crime No.109/2024 dated 03.04.2024 registeredwith Pundliknagar Police Station, Aurangabad, for the offence punishableunder Section 187, 188 of the Indian Penal Code, 1860. 2Heard learned Advocate Mr. S.V. Mundhe for petitioner andlearned APP Mr. G.A. Kulkarni for respondent Nos.1 and 2. 3Learned Advocate for petitioner has taken us through FirstInformation Report and other documents, which was the officialcommunication between petitioner and police. Petitioner is working asAssistant Engineer with Maharashtra State Electricity Distribution CompanyLimited, Section Office, Shivajinagar, Chhatrapati Sambhajinagar. Petitionerhad received a communication dated 03.04.2024 for making him twopanchas i.e. Government Servants working under him available for carryingout panchnama in respect of offence, which came to be registered vide CrimeNo.106/2024 under Section 307, 506 of the Indian Penal Code with Section135 of the Maharashtra Police Act. The said letter was in pursuance to theGovernment Resolution passed by the Home Department, Maharashtra Statedated 12.05.2015. The said letter was given by hand by the informant Police 310_Cri.WP_1097_2024Hawaldar Mr. Santosh Tukaram Pardhe, however, the present petitioner toldthat it is not possible to make such employee available for panchnama. Hegave a written communication back to informant immediately stating thatthree employees were engaged in cable fault in the electricity distribution,which arose on that day and, therefore, the informant says that it is anoffence. Informant has not considered that preference was required to begiven by petitioner to the work of solving the fault that had arose in theelectricity distribution work. The preference would prevail and it was not thevoluntary or intentional act of petitioner to show the inability to provide suchemployee. There was absolutely no intention on the part of petitioner tocommit any offence and, therefore, it would be unjust to ask him to face thetrial. 4Learned APP only points out the Government Resolution dated12.05.2015, wherein it is stated that the panchas who are the GovernmentServants should be taken for the help in drawing panchnama in an offencewhere the punishment is provided to seven years or more. 5It is very much unfortunate that still a mentality prevails in thePolice Department that everybody should give preference to the workdirected by the police or to help the police. Of course, every citizen is duty 410_Cri.WP_1097_2024bound to help the police, but that does not mean that refusal of the sameshould be considered as an offence in all the situations. In order to betterunderstand the facts, especially the ingredients of the offence we would liketo reproduce the relevant part of First Information Report : “lgk¸;d vfHk;ark Jh- ;ksxs’k lksuo.ks ;kauh vkt deZpkjh iap Eg.kwu miyC/kd:u nsrk ;s.kkj ulY;kps lkaxqu iks-mi-fu- lanhi dkGs ;kaps ukos R;kapsdk;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 vktfn- 03@04@2024 jksth dscy QkWYV vlY;keqGs frUgh deZpkjh fon;qr iqjoBklqjGhr dj.;klkBh dke djr vkgs- fon;qr iqjoBk lqjGhr dj.;klkBhdeZpk&;kaph vR;ar xjt vkgs- R;k dkj.kkus vkt fn- 03@04@2024 jksthvki.kkl iap miyC/k d:u nsÅ 'kdr ukgh vls ueqn dsys- lgk¸;dvfHk;ark Jh- ;ksxs’k lksuo.ks ;kauh iks-mi-fu- lanhi dkGs ;kauh deZpkjh iapEg.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 uewnvlrkuk ns[khy tk.khoiwoZd nqyZ{k d:u 'kklu fu.kZ;kauqlkj yksdlsodkllgk¸; ns.ks ca/kudkjd vlrkuk lgk¸; ns.;kps VkGys- rlsp yksdlsodkusfjrlj tkjh dsysY;k vkns’kkph voKk dsyh vkgs- djhrk ek>h lgk¸;dvfHk;ark Jh- ;ksxs’k lksuo.ks] ,e-,l-bZ-ch- dk;kZy;] f’kokthuxj ;kapsfo:/nHkk-n-fo- dye 187] 188 uqlkj dk;ns’khj dk;ZokghlkBh fQ;kZn vkgs-”Section 187 of the Indian Penal Code punishes a person beingbound by law to render or furnish assistance to any public servant in theexecution of his public duty, intentionally omits to give such assistance,therefore, the basic ingredients here the willful neglect or intentionalomission to arrest a public servant. Here, the fact is not in dispute that 510_Cri.WP_1097_2024immediately to the Police Sub Inspector, who was conducting theinvestigation in the offence under Section 307 of the Indian Penal Code, thepresent petitioner gave it in writing as to what is the problem with him fornot supplying or making available the Government Servants under him forthe purpose of panchnama. He has stated that there was a cable fault on thesame day and in order to regularize the distribution of the electricity all thethree employees presence is necessary. Here, refusal is different thaninability due to genuine reason. Here, the letter which was given by thepresent petitioner clearly demonstrates his inability for a genuine reason. Itis not the case in First Information Report that the reason that was given inthe letter was found to be false or incorrect. Therefore, the basic ingredientof Section 187 of the Indian Penal Code was not at all attracted. 6For Section 188 of the Indian Penal Code we would like to relyon the decision in Ram Monohar Lohia and others vs. State of Uttar Pradeshand others [AIR 1968 Allahabad 100], wherein it has been held and it canalso 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 bysuch order to abstain from doing certain act or to take certain order 610_Cri.WP_1097_2024with certain property in his possession and under his managementhas disobeyed; and 4) that such disobedience causes or tends to cause(a) obstruction, annoyance or risk of it to any person lawfullyemployed; or (b) danger to human life, health or safety; or (c) a riotor affray.”Here, the letter given by PSI Mr. Sandip Kale, the InvestigatingOfficer in the case under Section 307 of the Indian Penal Code cannot beconsidered as promulgation, because he himself was relying upon theGovernment Resolution dated 12.05.2015. Perusal of the said GovernmentResolution would show that it was issued in the background that panchaswere turning hostile and because of which the percentage of conviction wasgoing 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 isstated in clause (ii) that in those offences where the punishment is sevenyears or more than that, then the Investigating Officer should as far aspossible engage the Government Servant as panch [ 2½ T;k xqUg;ke/;s lkr o"kZsfdaok 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 aspossible’, therefore, it was not compulsory as such and secondly when theletter was given by Police Sub Inspector Mr. Sandip Kale, in a way threat hasbeen given that if in spite of receipt of letter such employee is not madeavailable, then it would amount to offence under Section 187, 188 of the 710_Cri.WP_1097_2024Indian Penal Code. Panchas are not to be procured by giving threats. It is avoluntary act. It appears that PSI Mr. Sandip Kale himself had notunderstood to Government Resolution and, therefore, at the cost ofrepetition, we say that the letter which he has given dated 03.04.2024 cannotbe considered as an order promulgated under a law. Government Resolutionis not a law. Of course, it has to be followed. 7Another point that is arising in this case is that when it is allegedthat present petitioner has committed offence under Section 187 and 188 ofthe Indian Penal Code, then we will have to take note of Section 195(1) ofthe Code of Criminal procedure. It states that no Court shall take cognizanceof any offence punishable under Sections 172 to 188 (both inclusive) of theIndian Penal Code or ……………… except on the complaint in writing of thepublic servant concerned or of some other public servant to whom he isadministratively subordinate. It was specifically asked to learned APP as towhether Mr. Sandip Kale, the Investigating Officer had given writtendirections to informant Police Hawaldar Mr. Santosh Pardhe to lodge a FirstInformation Report. Upon instructions, it is stated that no such writtendirections were given. The question, therefore, is, why Mr. Sandip Kalehimself had not lodged the First Information Report. Interestingly, the policepapers show that Mr. Sandip Kale himself had then given notice under 810_Cri.WP_1097_2024Section 41(A)(1) of the Code of Criminal Procedure to the petitioner. This isall tainted and with ulterior motive may be to teach a lesson or was made asego point by Mr. Sandip Kale. We, therefore, of the opinion that ingredientsof offence are absolutely not made out. The First Information Report appearsto have been lodged with some ulterior motive. In fact, even Mr. SandipKale, PSI also cannot estopped the petitioner from discharging his duty andthe preference which petitioner had given was to the restoration of theelectricity supply. It would be unjust to ask the petitioner to face the trialand, therefore, this is a fit case where we should exercise our powers underSection 482 of the Code of Criminal Procedure. Hence, following order. ORDERi)Criminal Writ Petition stands allowed.ii)First Information Report vide Crime No.109/2024 dated03.04.2024 registered with Pundliknagar Police Station, Aurangabad, for theoffence 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