Bombay High Court: In a case wherein, a FIR was registered against the applicant, serving as the Assistant Commissioner, Social Welfare, Dharashiv, who on the police officer’s letter, showed his incapability to supply his employees working under him, to act as panch witnesses, the Division Bench of Vibha Kankanwadi* and Sanjay A. Deshmukh, JJ., opined that it was very unfortunate that still a mentality prevailed in the Police Department that everybody should give preference to the work directed by the police or to help the police.
The Court stated that when the applicant as the head of the said Department showed his difficulty, it could not be taken as willful disobedience or refusal of any order, and thus, it would be unjust to ask the applicant to face the trial. Thus, the Court quashed and set aside the FIR registered against the applicant.
Background
The applicant was serving as the Assistant Commissioner, Social Welfare, Dharashiv, and Respondent 2 was serving as an API, and in his official capacity, Respondent 2 gave a letter to the applicant that two employees serving under him should be made available as panch witnesses. The applicant did not respond and, thus, a FIR was registered with City Police Station, Dharashiv, for the offence punishable under Sections 1871 and 1882 of the Penal Code, 1860 (‘IPC’).
The applicant submitted that he had made a communication regarding the scarcity of employees for supplying them as panch witnesses and even when the Government Resolution dated 12-5-2015 was issued, he had made a communication that due to scarcity of employees it would not be possible to send the employees working under him to act as panch in various matters. Thus, the Sub Divisional Magistrate, Osmanabad had fixed the days and as per the rotation, on Tuesday, a letter was given to the applicant to supply the employees, however, by letter dated 26-3-2024, he gave his inability. The applicant stated that for the last three years, every Tuesday, one employee was sent to act as panch and this arrangement caused difficulty in the functioning of the office work and, therefore, the applicant refused to make the panch witness available, which did not lead to the applicant committing any offence.
Counsel for the respondents submitted that every citizen was supposed to help the police to have authenticity and reduce the hostility of panch witnesses. The State Government also took a step and issued a circular dated 12-5-2015 and so it was the bounden duty of the applicant to provide the employee serving under him to act as panch witness. Further, the applicant’s arrangement was considered by the Sub Divisional Magistrate and for his office, Tuesday was fixed and thus, under such circumstance, he could not have refused to send any person.
Analysis, Law, and Decision
The Court opined that it was very unfortunate that still a mentality prevailed in the Police Department that everybody should give preference to the work directed by the police or to help the police. Even though every citizen was duty bound to help the police, that did not mean that refusal of the same should be considered as an offence in all situations.
The Court referred to Section 187 of IPC which punished 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. The Court opined that the basic ingredients were willful neglect or intentional omission to arrest a public servant.
The Court noted that the applicant had stated that due to scarcity of employees it would not be possible to send the employees working under him to act as panch in various matters. The Court opined that refusal was different than inability due to genuine reason and in the present case, the letter given by the applicant clearly demonstrated his inability for a genuine reason. Therefore, the basic ingredient of Section 187 was not attracted.
The Court referred to Section 188 of IPC and stated that the letter given by the applicant could not be considered as promulgation under a law, as he himself was relying upon the Government Resolution dated 12-5-2015, which was not a law. The Court noted that the said Resolution was issued as panchas were turning hostile and because of which the percentage of conviction was going down and, therefore, if the Government Servants were taken as panchas, then it would help in solving the problem of hostility of the panchas.
The Court noted that clause (ii) stated that “in those offences where the punishment was seven years or more than that, then the Investigating Officer should as far as possible engage the Government Servant as panch”. Thus, the Court opined that the words “as far as possible” indicated that it was not compulsory and the letter given to the applicant, was in a way threat, as it stated that if in spite of receipt of letter such employee was not made available, then it would amount to offence under Sections 187 and 188 of IPC. The Court opined that panchas were not to be procured by giving threats as it was a voluntary act.
The Court opined that the Police Officers could not make it compulsory to any citizen even the employees that they should help the Police Officers. The Court stated that in the present case, when the applicant as the head of the said Department showed his difficulty, it could not be taken as willful disobedience of any order, and thus, it would be unjust to ask the applicant to face the trial.
The Court allowed the application and opined that it was a fit case to exercise its powers under Section 4823 of the Criminal Procedure Code, 1973. Thus, the Court quashed and set aside the FIR registered against the applicant.
[Balasaheb Gurushantappa Arawat v. State of Maharashtra, Criminal Application No. 2109 of 2024, decided on 9-5-2025]
*Judgment authored by: Justice Vibha Kankanwadi
Advocates who appeared in this case:
For the Applicant: Ajinkya Reddy, Advocate for Applicant
For the Respondents: A.R. Kale, APP for Respondents 1 and 2
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
1. Corresponding Section 222 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS, 2023’)
3. Corresponding Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
