A bench of Justices B V Nagarathna and N Kotiswar Singh said when no complaint is filed by the concerned public servant as contemplated under Section 195 (1)(a) CrPC, the Chief Judicial Magistrate cannot take cognizance of the offence under Section 186 of the Indian Penal Code.

 

"A written complaint by a public servant before the court takes cognizance is sine qua non, absence of which would vitiate such cognisance being taken for any offence punishable under Section 186 under the IPC," the bench said.

 

The court allowed an appeal filed by B N John against the Allahabad High Court's order of September 22, 2023, which refused to quash the criminal proceedings initiated against him and others for offences of obstructing public servants from discharge of duties and assault or use of criminal force to deter public servants from discharge of duties under Sections 186 and 353 of the IPC respectively.

 

The appellant was the owner of the premises and was in charge of managing and maintaining a hostel at Varanasi, operated by a Non-Governmental Organization namely Sampoorna Development India, for underprivileged children by providing facilities for their accommodation, education, and other needs.

 

The state officials conducted a raid on its premises on June 3, 2015, and sought to transfer the children on the ground that the hostel was run in violation of provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. An FIR was lodged against the appellant, his wife and others for attacking and assaulting the officials conducting the raid.

 

The appellant contended a complaint alleging commission of an offence under Section 186 of the IPC would be maintainable only if it is preceded by a complaint filed by a public servant as mentioned under Section 195 (1)(a) of the CrPC before the court/Magistrate, but there was no such prior complaint filed by any public servant before the Magistrate.

 

His counsel said the authorities had maliciously invoked the penal provision of Section 353 of the IPC in the FIR merely to make out a cognizable offence against the appellant to enable the Magistrate to take cognizance, even though there was no case of any assault or use of criminal force by the appellant to deter any public servant from discharging his duty.

 

On a plea filed under Section 482 of the CrPC, the Allahabad High Court dismissed the petition by going through the statements of witnesses and, saying a prima facie case was made out. It also noted that the previous order on dismissal of a similar petition by a co-accused was upheld by the Supreme Court, which dismissed the special leave petition in limine.

 

Making an analysis, the bench said, our criminal justice system, rooted in the rule of law, contemplates different approaches for dealing with serious and non-serious offences.

 

"When it is related to non-cognizable offence there are certain safeguards put in place so that the invasive, intrusive, and coercive power of the police is not immediately brought into operation, as enabled under Section 156 of the CrPC. In such a situation any complaint alleging commission of non-serious offence(s) or non cognisable offences made before the police has to be vetted by a legally trained person in the presence of a Judicial Magistrate before the police can initiate the investigation. Thus, even if the police receives any such complaint relating to non-cognizable offence, the police cannot start investigation without there being a green signal from the Magistrate," the bench said.

 

Further, the court pointed out, when there is such non cognizable offence(s) pertaining to officials who are obstructed from discharging their official duties, then there is the additional safeguard before the Magistrate which permits the investigating authority to investigate. It must be preceded by a complaint filed by a public servant before the court/Magistrate.

 

"This is to ensure that only genuine complaints relating to non-serious offences or non-cognisable offences are entertained by the Magistrate. This is so for the reason that in a democracy, interactions of the citizen with the public servants is more frequent in wherein there may be instances where the members of the public cause obstruction to public servants preventing them from discharging public duties properly," the bench said.

 

Citing Section 155 of the CrPC, the bench pointed out there is a specific bar on the police to investigate any such non-cognizable offence, without the order of a Magistrate.

 

"Section 195 of the CrPC provides additional conditions under which the Magistrates can take cognizance in respect of certain kinds of non-cognizable offences as mentioned in the said section, which includes Section 186 of the IPC with which we are directly concerned, only after a written complaint is filed by the concerned public servant to the court/Magistrate," the bench said.

 

The state counsel cited a letter sent to the City Magistrate by complainant District Probation Officer.

 

Referring to Section 2(d) CrPC, the bench said a complaint within the meaning and scope of the Criminal Procedure Code would mean such a complaint filed before a Judicial Magistrate and not an Executive Magistrate.

 

"Since the Magistrate referred to under Section 155 under Chapter XII of the CrPC refers to a Magistrate who has the power to try such case or commit the case for trial and thus exercises judicial function, he has to be a Judicial Magistrate. Further, under Section 195 (1) of the CrPC read with Section 2 (d) of the CrPC, the complaint, has to be filed before the court taking cognizance, and the complaint which is required to be filed under Section 195 (1) of the CrPC, can only be before a Judicial Magistrate and not an Executive Magistrate who does not have the power to take cognisance of an offence or try such case," the bench said.

 

The court thus felt satisfied that the appellant had been able to make out a case that taking cognizance of the offence under Section 186 of the IPC by the Court of CJM, Varanasi, was illegal, as before taking such cognizance it was to be preceded by a complaint in writing by a public servant as required under Section 195(1) of the CrPC.

 

With regard to offence under Section 353 IPC, the court said in the contents of the FIR, no such allegation of assault or use of criminal force had been made. The FIR was based on the complaint filed by the District Probation Officer, which had been reproduced verbatim in the said FIR in which only the allegation of creating disturbance had been made.

 

The court pointed out that not only obstruction but the actual use of criminal force or assault on the public servant was necessary. While “disturbance” could also be caused by the use of criminal force or assault, unless there are specific allegations with specific acts to that effect, mere allegation of “creating disturbance” cannot mean use of “criminal force” or “assault” within the scope of Section 353 of the IPC, it said.

 

"It is to be remembered that a criminal process is initiated only with the lodging of an FIR. Though FIR is not supposed to be an encyclopedia containing all the detailed facts of the incident and it is merely a document that triggers and sets into motion the criminal legal process, yet it must disclose the nature of the offence alleged to have been committed as otherwise, it would be susceptible to being quashed as held in Bhajan Lal’s case," the bench said.

 

The court thus held taking cognizance by the CJM of an offence that was not made out in the FIR did not appear to be correct.

 

Relying upon the contents of statements recorded under Section 161 CrPC, the bench found nothing had been mentioned about how disturbance was created because of assault or use of criminal force.

 

"Thus, the contents of the statements recorded later under Section 161 of the CrPC clearly appears to be an afterthought and the allegation of assault/attack was introduced later on, which is inconsistent with the contents of the original FIR," the bench said.

 

The court also pointed out that in the limine dismissal of a special leave petition at the threshold without giving any detailed reasons did not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.

 

Referring to Section 155(4) CrPC, the bench said, if in the course of the investigation of a cognizable offence, the ingredients of a non-cognizable offence are discovered then the police could have continued the investigation without the written complaint to the court or the order of the court in respect of such non-cognizable offence, as it would also be deemed to be a cognizable offence under Section 155(4) of the CrPC, but where the investigation of the cognizable office itself suffers from legal infirmity and without jurisdiction from the initial stage, the entire investigation would be vitiated.

 

"Under the circumstances, we are of the opinion that taking cognisance by the CJM, Varanasi, of the offences under Section 353 of the IPC and 186 of the IPC was not done by following the due process contemplated under the provisions of law, and accordingly, the same being contrary to law, all the orders passed pursuant thereto cannot be sustained and would warrant interference from this Court," the bench said.

 

The court allowed the petition against the High Court's order and quashed the criminal proceedings.