Sections 195 & 340 CrPC Do Not Control Or Circumscribe Power Of Police To Investigate: Supreme Court

The Supreme Court held that Sections 195(1)(b)(i)(ii)(iii) and 340 of the Criminal Procedure Code, 1973 (CrPC) respectively do not control or circumscribe the power of the police to investigate, under the CrPC.

The Court held thus in a Special Leave Petition (SLP) preferred against the Judgment of the Delhi High Court, by which the Order of the Chief Metropolitan Magistrate (CMM) was affirmed.

The two-Judge Bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan observed, “Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed.”

The Bench explained that where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein.

AOR Nikilesh Ramachandran appeared on behalf of the Petitioner.

Facts of the Case

The Respondent at the relevant point of time was serving as a Process Server, Nazarat Branch, Shahdara. He was assigned the duty to serve warrants and, in this connection, he had to visit the Nand Giri police station in 2013. As per the Respondent’s case, few police officials, more particularly, the Petitioner misbehaved with him when he insisted for a receipt of the summons. According to him, he was detained in the police station till 4:30 PM. It is only after the arrival of the Head Constable that the warrants were accepted.

The Respondent brought the alleged misconduct on part of the Petitioner to the notice of the District and Sessions Judge in the form of voluntary obstruction said to have been caused in the discharge of his public functions. The said Judge assigned the complaint to the Administrative Civil Judge who in turn lodged a private complaint in the Court of the Chief Metropolitan Magistrate. The CMM directed the registration of FIR under Sections 186 and 341 of the Indian Penal Code, 1860 (IPC). This Order was challenged by the Petitioner but his Criminal Revision Application was rejected. The High Court also declined to interfere and rejected his Writ Petition. Being aggrieved, he was before the Apex Court.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, remarked, “The entire trial would have been over within a period of three months from the date of filing of the complaint in writing, had the CMM taken cognizance on the very first day and issued process under Section 204 of the Cr.P.C. Having not done so at the right time and in the right manner, it has been now twelve years that this litigation is still pending. … Look at the mess created by one and all over a period of twelve years. We are talking about upholding and maintaining the dignity of court.”

The Court added that this entire prosecution for the alleged offence is to uphold the dignity of Court, however, it has been twelve years but no one has been able to uphold the dignity of the Court by proceeding in the right direction.

“The word ‘obstruction’ in Section 186 of the I.P.C is not confined to physical obstruction only. Threats of violence made in such a way as to prevent the public servant from carrying out his duty might easily amount to an obstruction of the public servant”, it said.

The Court held that that the expression ‘obstruction’ used in Section 186 of the IPC is not confined to physical obstruction and it need not necessarily be an act of use of criminal force.

“The act need not be a violent one. It is enough if the act complained of results in preventing a public servant in discharge of his lawful duties. Any act of causing impediment by unlawfully preventing public servant in discharge of his functions would be enough to attract Section 186 of the I.P.C. Any other interpretation would be to encourage people to take the law into their hands, frustrate the investigation of the crimes and thwart public justice. Such an interpretation cannot be commended by the Courts”, it further observed.

The Court enunciated that Section 195(1)(a)(i) of the CrPC bars the Court from taking cognizance of the offence punishable under Section 186 IPC, unless there is a written complaint by the public servant for voluntarily obstructing him from discharge of his public functions.

“… the law can be summarized to the effect that there must be a complaint by the public servant who was voluntarily obstructed in the discharge of his public functions. The complaint must be in writing. The provisions of Section 195 Cr.P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction”, it also noted.

Conclusion

The Court, therefore, summarised the following points of conclusion –

(i) Section 195(1)(a)(i) of the Cr.P.C. bars the Court from taking cognizance of any offence punishable under Sections 172 to 188 respectively of the I.P.C., unless there is a written complaint by the public servant concerned or his administrative superior, for voluntarily obstructing the public servant from discharge of his public functions. Without a complaint from the said persons, the Court would lack competence to take cognizance in certain types of offences enumerated therein.

(ii) If in truth and substance, an offence falls in the category of Section 195(1)(a)(i), it is not open to the Court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record.

(iii) Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1)(a)(i), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant’s complaint.

(iv) In the aforesaid context, the courts must apply twin tests. First, the Courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and other materials on record whether the other distinct offences not covered by Section 195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

(v) Where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein. However, the Courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case.

Accordingly, the Apex Court disposed of the SLP, leaving it open to the Petitioner to raise the contention as regards the bar of Section 195 of the CrPC before the Trial Court if at all, at the end of the investigation, chargesheet is filed for the offences in the FIR.

Cause Title- Devendra Kumar v. The State (NCT of Delhi) & Anr. (Neutral Citation: 2025 INSC 1009)

Appearance:

AOR Nikilesh Ramachandran, Advocates SC Sagar, Shubham Seth, Ananya V Mehra, and Soumya Saisa Das.

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