Written Complaint By Public Servant Is Mandatory For Taking Cognizance Of Offence U/S 186 IPC: Supreme Court
The Supreme Court held that a written Complaint by a Public Servant is mandatory before the Court takes cognizance of an offence punishable under Section 186 of the Indian Penal Code (IPC).
The Court held thus in a Criminal Appeal filed against the Judgment of the Allahabad High Court by which a plea for quashing the chargesheet, Order taking cognizance and issuing summons, and the proceedings under Sections 353 and 186 of IPC, was rejected.
The two-Judge Bench comprising Justice B.V. Nagarathna and Justice N. Kotiswar Singh observed, “Under such circumstances, we are satisfied that the appellant has 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. A written complaint by a public servant before the court takes cognizance is sine qua non, absence of which would vitiate such cognizance being taken for any offence punishable under Section 186 of the IPC.”
The Bench also mentioned that there is a sea of difference between ‘creating disturbance’, ‘assault’, and ‘criminal force’ terms mentioned under Section 353 of the IPC and defined under Sections 350 and 351 of the IPC respectively.
The Court explained that if ‘disturbance’ has to be construed as ‘assault’ or ‘criminal force’ without there being specific acts attributed to make such ‘disturbance’ as ‘assault’ or ‘criminal face’ within the scope of Section 353 of the IPC, it would amount to abuse of the process of law and while ‘disturbance’ could also be caused by 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.
Factual Background -
As per the Appellant’s plea, he was the owner of the premises and was in charge of managing and maintaining the hostel, which was being operated by a Non-Governmental Organization (NGO) namely Sampoorna Development India. This hostel at the relevant time was used for underprivileged children by providing facilities for their accommodation, education, and other needs. According to the Appellant, because of certain personal disputes with a man, the latter allegedly instituted six false cases against him, four of them resulted in his acquittal, while in the other two, discharge Applications were pending. According to him, it was at the instance of the said man that the officials conducted a raid in the said hostel arbitrarily without authorization and also without providing any prior notice, alleging that provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) as applicable then, were not followed in running and managing the said hostel.
It was alleged that the officials illegally conducted raid and sought to transfer the children in hostel to some other location. It was further contended that a false allegation was made against the Appellant that he, along with his party, had attacked and assaulted the officials while they were conducting the raid in connection with which an FIR was lodged against him and his wife under Section 353 of IPC. Pursuantly, the Appellant was arrested but was then granted bail on the same day. However, on completion of investigation, chargesheet was filed and the Chief Judicial Magistrate (CJM) took cognizance and issued summons to him. Hence, he approached the High Court but his plea was declined and resultantly, he approached the Apex Court.
The Supreme Court after hearing the arguments from both sides, remarked, “Our criminal justice system, rooted in the rule of law, contemplates different approaches for dealing with serious and non-serious offences. When complaints pertaining to serious offences are filed, which are generally categorized as cognizable offences under the CrPC, the police, on receiving such information of the commission of a cognizable offence can immediately start the investigation as contemplated under Section 156 of the CrPC. On the other hand, when it relates to non-serious offences which are generally categorized as non-cognizable offences, the law is more circumspect in letting the full force of the criminal justice system operate. 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.”
The Court added that in such a situation any Complaint alleging commission of non-serious offence(s) or non-cognizable offence(s) 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 and 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.
“… when such non-cognizable offence(s) pertaining to officials who are obstructed from discharging their official duties, 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-cognizable 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”, it emphasised.
Furthermore, the Court said that the fine balance between the liberties of the citizens and the imperatives of the State endowed with coercive authority to maintain law and order is preserved with such safeguards.
“For a prohibited act to come within the scope of the offence under Section 353 of the IPC, such an act must qualify either as an assault or criminal force meant to deter public servant from discharge of his duty. Obviously, such an act cannot be a mere act of obstruction which is an offence under Section 186 of the IPC. The offence contemplated under Section 353 of the IPC is of a more serious nature involving criminal force, or assault which attracts more stringent punishment that may extend to two years. On the other hand, the offence of obstruction covered under Section 186 of the IPC is punishable by imprisonment, which may extend to three months at the maximum”, it elucidated.
The Court observed that the absence of mentioning the alleged acts which would constitute ingredients of the offence under Section 353 of the IPC, renders the FIR legally untenable as far as the offence under Section 353 of the IPC is concerned.
“We do not see any reason why the complainant failed to mention in the FIR the alleged use of criminal force or assault of the public servants to prevent them from discharging their official duties when they were raiding the premises”, it added.
The Court also enunciated that even if it is assumed that 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 and therefore, the police cannot seek the shield under Section 155 (4) of the CrPC when the FIR did not disclose the commission of a cognizable offence.
“We are, thus, of the view that said decision of the High Court and dismissal in limine by this Court will not come in the way of disposal of this appeal on merits. … Under the circumstances, we are of the opinion that taking cognizance 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”, it concluded.
Accordingly, the Apex Court allowed the Appeal, set aside the impugned Order, and quashed the case against the accused.
Cause Title- B.N. John v. State of U.P. & Anr. (Neutral Citation: 2024 INSC 4)
