2025:BHC-AUG:14213-DB

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

16 CRIMINAL APPLICATION NO.2109 OF 2024

Balasaheb 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

 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 Balasaheb Gurushantappa Arawat.

( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. )

agd