Essential conditions for initiation of prosecution for contempt of lawful authority of public servant

 Their Lordships of Hon'ble Supreme Court in the case of C.

Muniappan and others v. State of Tamilnadu, reported in (2010) 9 SCC

567 have held that the legislative intent behind Section 195 (1) (a) (i)

Cr.P.C. read with section 188 is that an individual should not face criminal

prosecution instituted upon insufficient grounds by persons actuated by

malice, ill will or frivolity of disposition and to save the time of the criminal

courts being wasted by endless prosecutions. There must be a complaint

by the public servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195 Cr.PC are

mandatory. 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. Their lordships

have held as under:

“33. Thus, in view of the above, the law can be summarized

to the effect that there must be a complaint by the public

servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195

Cr.PC 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.”

37. The complaint filed under the signatures of SHO, PS

Dharamshala cannot be termed as complaint under Section 195 (1) (a)

Cr.P.C. The complaint could only be filed by the officer concerned.

38. Now, the Court will advert to whether there was sufficient

material to proceed against the accused for committing offence under

Section 186 IPC. In the complaint based on DDR Nos. 12(A) & 15(A), it is

stated that Insp. Jagdish Chand and other staff members were present in

Police Station (SV & ACB), Dharamshala and the accused initially entered

the Police Station and thereafter went to the Office of Superintendent of

Police (SV & ACB). They disrupted the government administration for half

an hour. It is not stated that what duties were being discharged by those

police officers/officials present in the Police Station and which one of them

was obstructed voluntarily from discharging official functions. In order to

attract the provisions of Section 186 IPC, it has to be seen whether the

public servant in the discharge of his public functions has been voluntarily

obstructed or not. It is reiterated that what mentioned in the complaint is

that the government administration was disrupted for half an hour. Merely

the disruption of government administration without mentioning that the

public servants were obstructed voluntarily from discharge of their public

functions would not attract Section 186 IPC.

39. The learned Single Judge of the Patna High Court in the case

of Janki Prasad Tibrewal and others v. The State of Bihar, reported in

1975 Crl. LJ 575 has held that the expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and obstacle in

the way of public servant and it implies use of criminal force. It has been

held as under:

“[7] Considering these decisions it is clear that the real test is

whether the facts alleged against an accused disclosed two

distinct offences or whether the facts disclosed primarily an

offence for which a complaint by a public servant is required,

The main allegation which has been made in this case against

the petitioners is that they voluntarily obstructed the Dalpati

and the Mukhia who are public servants in the discharge of

their duties as such. The expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and

obstacle in the way of public servant and it implies use of

criminal force. So if these petitioners are alleged to have

assaulted the Dalpati and the Mukhia in the course of

voluntarily obstructing the public servant from discharging

their duties, the offences under Sections 323, 324 and 353 of

the Indian Penal Code are so connected with the primary

offence of Section 186 of the Indian Penal Code that it is

difficult to say that those offences constituted separate

offences other than an offence under Section 186 of the Indian

Penal Code. The very fact of obstruction in the instant case

implies assault and hurt to the public servant concerned and

so the primary offence alleged to have been committed by these

petitioners is one under Section 186 of the Indian Penal Code

and if cognizance is taken of the offences on the basis of police

report only under Sections 323, 324 and 353 of the Indian

Penal Code, it will amount to circumventing the provisions of

Section 195 of the Code which is not permissible in law.”

40. What emerges from the discussion is that Section 195 (1)(a) of

Cr.P.C. has not been complied with. Section 195 Cr.P.C. is mandatory.

The power to file the complaint could not be delegated to SHO, Police

Station, Dharamshala. The complaint should have been initiated at the

instance of the public servant concerned or his superior officer. Thus, in

view of the matter, the learned Chief Judicial Magistrate, Dharamshala had

no jurisdiction in the case as there was no complaint in writing before him

by the public servant concerned or his superior. The material placed on

record was not sufficient to initially permit the investigation of the case and

thereafter to summon the accused and put them to notice of accusation.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 35 of 2016.

 Decided on: 30.5.2016.

Anurag Thakur and another 

Versus

State of H.P. 

Coram

The Hon’ble Mr. Justice Rajiv Sharma, 

Citation:2016 CRLJ 3363 HP

The present petition has been filed under Section 482 of the

Code of Criminal Procedure praying for quashing of complaint pending in

the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala

under Section 186 of the IPC along with summoning order/notice of

accusation and all other consequential proceedings.

2. The petitioner No. 1 is 3rd time Member of Parliament. He was

first elected to Lok Sabha in May, 2008 in a by-poll. He won once again

from Hamirpur Constituency in the year 2014. He was also elected as

Secretary of the Board of Control Cricket in India in March, 2015. The

petitioner No. 1 is also President of Himachal Pradesh Cricket Association

(HPCA). The petitioner No. 2 is the Public Relation Officer (PRO) of the

Himachal Pradesh Cricket Association.

3. According to the averments made in the complaint, Insp.

Jagdish Chand along with Insp. Prem Chand, Yashpal, Const. Ashok

Kumar, HC Rakesh Kumar, HC Sanjay Kumar and other staff members

was present at 1:55 PM in the Police Station Hazoor (SV & ACB),

Dharamshala. The petitioners along with about 200-250 persons entered

inside the main gate. They raised slogans and burst crackers. Insp.

Jagdish Chand along with Insp. Prem Chand apprised the petitioners that

S.P. Yog Raj was carrying out the investigation. He was out of station.

They disclosed their identity to the petitioners. The accused enquired

about the Superintendent of Police. Thereafter, the accused along with 25-

30 persons forcibly entered the Office of Superintendent of Police. They

raised slogans in the courtyard. They came out of the Office of

Superintendent of Police at 2:30 P.M. They remained near the gate of the

Office of Superintendent of Police for ten minutes. They had disrupted the

government administration for half an hour in the Police Station and Office

of Superintendent of Police (SV & ACB). Thus, the petitioners have

committed the offence under Section 186 IPC.

4. Mr. Randeep Rai, Sr. Advocate, appearing for the petitioners

has argued that his clients have never obstructed the public servants from

discharging their public functions, as alleged in the complaint Ext. P-1. He

also vehemently argued that the mandatory provisions of Section 195 (1) (a)

Cr.P.C. have not been followed. According to him, the complaint could only

be filed by the concerned person or his immediate superior to whom he was

subordinate and not by the SHO concerned. On the other hand, Mr.

Shrawan Dogra, learned Advocate General for the State has strenuously

argued that there was no breach of Section 195 (1) (a) Cr.P.C. According to

him, the petitioners along with other persons have obstructed voluntarily

the public servants from discharging their duties by entering into the Police

Station and the Office of Superintendent of Police (SV & ACB).

5. The record was produced by the learned Advocate General

during the course of hearing of the matter.

6. I have heard the learned counsel appearing on both the sides

and have also gone through the records minutely.

7. Mr. Shrawan Dogra, learned Advocate General has drawn the

attention of the Court to DDR entry No. 12(A) from the records produced

before the Court. It is stated in the DDR that on 24.10.2013 Insp. Jagdish

Chand along with Insp. Prem Chand and other police officials were present

in Police Station Hazoor (SV & ACB), Dharamshala. The petitioner No. 1

with Mr. Parveen Sharma, Ex MLA, Mr. Sanjay Sharma, PRO (HPCA), Mr.

Virender Kanwar, MLA along with 200/250 Bhartiya Janta Party Yuva

Morcha (BJYM) workers carrying banners and bursting crackers entered

the gate. They entered the Police Station. Mr. Parveen Sharma and

petitioner No. 1 enquired from Insp. Jagdish Chand as to who has called

them. He told them that Sh. Yog Raj, Addl. Superintendent of Police was

conducting investigation in Himachal Pradesh Cricket Association case and

he was out of the Police Station. They asked for his identity. He disclosed

the same. They asked him about the whereabouts of Superintendent of

Police. Thereafter, the petitioner No. 1 along with other 25-30 persons

forcibly entered the Office of Superintendent of Police. They raised slogans

against the Chief Minister for half an hour. They disrupted the government

administration in the Police Station and Office of Superintendent of Police

(SV & ACB) for half an hour. The copy of DDR No. 12(A) was sent by the

Superintendent of Police (SV & ACB) NR, Dharamshala to Superintendent

of Police, Kangra at Dharamshala on 28.10.2013 for taking necessary

action.

8. In sequel to letter dated 28.10.2013, DDR No. 15(A) was

prepared by the SHO PS Dharamshala reiterating the contents of DD entry

No. 12(A). The SHO, PS Dharamshala moved an application before the

learned Chief Judicial Magistrate, Kangra at Dharamshala seeking

sanction to initiate proceedings under Section 186 IPC vide Annexure P-1.

Respondent No. 1 has filed the reply on the affidavit of Director General of

Police. The petitioners have filed rejoinder thereto. The learned Chief

Judicial Magistrate, Kangra at Dharamshala vide order dated 2.11.2013

allowed the application and necessary permission was accorded to launch

prosecution against the accused persons.

9. The learned Chief Judicial Magistrate, Kangra at Dharamshala

passed the following order on 10.3.2014:

“Heard. From the perusal of the complaint and other annexed

documents, prima-facie case exist under Section 186 of IPC

against the accused persons. Let all accused person be

summoned on 4.4.2014.”

10. The notice of accusation was put to the petitioners on

7.11.2015. The petitioners did not plead guilty and claimed trial and

thereafter vide Order dated 7.11.2015 the prosecution was directed to

produce the witnesses from Sr. No. 1 to 3 for 26.2.2016.

11. Section 186 of the Indian Penal Code reads as under:

“186. Obstructing public servant in discharge of public

functions.—Whoever voluntarily obstructs any public servant

in the discharge of his public functions, shall be punished with

imprisonment of either description for a term which may

extend to three months, or with fine which may extend to five

hundred rupees, or with both.”

12. Section 195 (1)(a) of the Code of Criminal Procedure reads as

follows:

“195. Prosecution for contempt of lawful authority of public

servants, for offences against public justice and for offences

relating to documents given in evidence.

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188

(both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except

on the complaint in writing of the public servant concerned or

of some other public servant to whom he is administratively

subordinate;……………….”

13. What emerges from the facts enumerated hereinabove is that

the petitioners according to the averments made in the complaint, filed

under the signatures of SHO, PS Dharamshala, firstly entered the Police

Station (SV & ACB), Dharamshala and thereafter barged into the Office of

Superintendent of Police and thereby disrupted government administration

in the Police Station and the Office of Superintendent of Police. The

complainant, in the present case, is Insp. Jagdish Chand who was the SHO

(SV & ACB), Dharamshala. DDR No. 12(A) was recorded by SHO, PS (SV &

ACB) giving therein the details, the manner in which the accused have

entered into the Police Station and the Office of Superintendent of Police

and raised slogans. The copy of this report was ordered to be sent to the

SHO, Police Station Dharamshala through Superintendent of Police (SV &

ACB). The Superintendent of Police (SV & ACB) NR, Dharamshala sent DD

entry No. 12(A) dated 24.10.2013 to Superintendent of Police, Kangra at

Dharamshala on 28.10.2013 for taking necessary action. Thereafter, SHO,

Police Station, Dharamshala entered DDR No. 15(A). The copy of the same

was sent to the Superintendent of Police (SV & ACB), Dharamshala.

14. The complaint could be filed, as per the mandatory provisions

of Section 195 (1) (a) Cr.P.C., either by Insp. Jagdish Chand and other

police officers/officials present in the Police Station (SV & ACB) or a public

servant to whom he was administratively subordinate, including

Superintendent of Police (SV & ACB). However, the fact of the matter is

that in the instant case, the complaint has been filed under the signatures

of SHO, PS Dharamshala, before the learned Chief Judicial Magistrate,

Dharamshala, on the basis of which cognizance was taken by the learned

Chief Judicial Magistrate, Kangra at Dharamshala. The learned Chief

Judicial Magistrate, Kangra at Dharamshala should have ensured while

according the sanction to investigate the matter whether Section 195 (1) (a)

Cr.P.C. has been complied with or not. The Superintendent of Police (SV &

ACB) has merely sent the communication to the Superintendent of Police,

Kangra at Dharamshala on 28.10.2013 asking him to take necessary

action in accordance with law. The SHO, PS Dharamshala was not

competent to file the complaint in the Court of learned Chief Judicial

Magistrate, Kangra at Dharamshala seeking permission to investigate the

matter. Thus, the cognizance taken by the learned Chief Judicial

Magistrate, Kangra at Dharamshala on the basis of the complaint filed by

SHO, PS Dharamshala is void ab initio and subsequent summoning

order/notice of accusation are also nullity. Order dated 10.3.2014 of the

learned Chief Judicial Magistrate, Kangra at Dharamshala, whereby the

accused have been summoned suffers from the vice of non-application of

mind since the application of mind to relevant issues is to be sufficiently

indicated though no formal speaking or reasoned order is required at the

stage of taking cognizance under section Section 190 Cr.P.C. The learned

Chief Judicial Magistrate, Kangra at Dharamshala should have applied his

judicial mind as to whether prima facie case existed as per the complaint

under Section 186 of the IPC and the mandatory provisions of Section 195

(1) (a) Cr.P.C. have been followed or not. He had to ensure whether there

were sufficient grounds to proceed or not and whether there were sufficient

grounds for conviction as per the contents of the complaint.

15. Their lordships of the Hon’ble Supreme Court in the case of

Mona Panwar vs. High Court of Judicature of Allahabad through its

Registrar and others, reported in (2011) 3 SCC 496, have explained the

meaning of phrase "taking cognizance of". Their lordships held that ‘taking

cognizance of’ means cognizance of offence and not of the offender. Taking

cognizance does not involve any formal action or indeed action of any kind

but occurs as soon as a Magistrate applies his mind to the suspected

commission of an offence. Cognizance, therefore, takes place at a point

when a Magistrate first takes judicial notice of an offence. Taking

cognizance is a different thing from initiation of the proceedings. It has

been held as under:

“19. The phrase "taking cognizance of" means cognizance of

offence and not of the offender. Taking cognizance does not

involve any formal action or indeed action of any kind but

occurs as soon as a Magistrate applies his mind to the

suspected commission of an offence. Cognizance, therefore,

takes place at a point when a Magistrate first takes judicial

notice of an offence. This is the position whether the

Magistrate takes cognizance of an offence on a complaint or on

a police report or upon information of a person other than a

police officer. Before the Magistrate can be said to have taken

cognizance of an offence under Section 190(1)(b) of the Code,

he must have not only applied his mind to the contents of the

complaint presented before him, but must have done so for the

purpose of proceeding under Section 200 and the provisions

following that Section. However, when the Magistrate had

applied his mind only for ordering an investigation

under Section 156(3) of the Code or issued a warrant for the

purposes of investigation, he cannot be said to have taken

cognizance of an offence.

20. Taking cognizance is a different thing from initiation of

the proceedings. One of the objects of examination of

complainant and his witnesses as mentioned in Section 200 of

the Code is to ascertain whether there is prima facie case

against the person accused of the offence in the complaint and

to prevent the issue of process on a complaint which is either

false or vexatious or intended only to harass such person.

Such examination is provided, therefore, to find out whether

there is or not sufficient ground for proceeding further.”

16. Their lordships of the Hon’ble Supreme Court in the case of

Bhushan Kumar and another vs. State (NCT of Delhi) and another,

reported in (2012) 5 SCC 424, have held that cognizance is taken of cases

and not of persons. Under Section 190 of the Code, it is the application of

judicial mind to the averments in the complaint that constitutes

cognizance. At this stage, the Magistrate has to be satisfied whether there

is sufficient ground for proceeding and not whether there is sufficient

ground for conviction. Whether the evidence is adequate for supporting the

conviction can be determined only at the trial and not at the stage of

enquiry. A “summons” is a process issued by a Court calling upon a

person to appear before a Magistrate. It is used for the purpose of notifying

an individual of his legal obligation to appear before the Magistrate as a

response to violation of law. It has been held as under:

“11. In S.K. Sinha, Chief Enforcement Officer vs. Videocon

International Ltd. & Ors., (2008) 2 SCC 492, the expression

“cognizance” was explained by this Court as it merely means

“become aware of” and when used with reference to a court or

a Judge, it connotes “to take notice of judicially”. It indicates

the point when a court or a Magistrate takes judicial notice of

an offence with a view to initiating proceedings in respect of

such offence said to have been committed by someone. It is

entirely a different thing from initiation of proceedings; rather

it is the condition precedent to the initiation of proceedings by

the Magistrate or the Judge. Cognizance is taken of cases and

not of persons. Under Section 190 of the Code, it is the

application of judicial mind to the averments in the complaint

that constitutes cognizance. At this stage, the Magistrate has

to be satisfied whether there is sufficient ground for proceeding

and not whether there is sufficient ground for conviction.

Whether the evidence is adequate for supporting the conviction

can be determined only at the trial and not at the stage of

enquiry. If there is sufficient ground for proceeding then the

Magistrate is empowered for issuance of process under Section

204 of the Code.

12. A summon is a process issued by a Court calling upon a

person to appear before a Magistrate. It is used for the purpose

of notifying an individual of his legal obligation to appear

before the Magistrate as a response to violation of law. In other

words, the summons will announce to the person to whom it is

directed that a legal proceeding has been started against that

person and the date and time on which the person must

appear in Court. A person who is summoned is legally bound

to appear before the Court on the given date and time. Willful

disobedience is liable to be punished under Section 174 IPC. It

is a ground for contempt of court.”

17. Their lordships of the Hon’ble Supreme Court in the case of

Helios and Matheson Information Technology Limited and others,

reported in (2012) 1 SCC 699, have held that if the complaint contains

assertions with sufficient amount of clarity on facts and events which if

taken as proved can culminate in an order of conviction against the

accused persons. That is, precisely the test to be applied while

determining whether the Court taking cognizance and issuing process was

justified in doing so. It has been held as under:

“12. We have gone through the averments made in the

complaint and are of the view that the complaint does contain

assertions with sufficient amount of clarity on facts and events

which if taken as proved can culminate in an order of

conviction against the accused persons. That is, precisely the

test to be applied while determining whether the Court taking

cognizance and issuing process was justified in doing so. The

legal position in this regard is much too well-settled to require

any reiteration.”

18. Their lordships of the Hon’ble Supreme Court in the case of

Subramanian Swamy vs. Manmohan Singh and another, reported in

(2012) 3 SCC 64 have held that though term “cognizance” has not been

statutorily defined, yet judicial pronouncements give it a definite meaning

and connotation. Cognizance broadly means taking judicial notice by

competent court of a cause or matter presented before it so as to decide

whether there is basis for initiating proceedings for judicial determination.

Their lordships have further held that it is not open for the Court to

analyze the evidence produced at that stage and come to the conclusion

that no prima facie case is made out for proceeding further in the matter.

However, before issuing the process, it is open to the Court to record the

evidence and on consideration of the averments made in the complaint and

the evidence thus adduced, find out whether an offence has been made

out. On finding that such an offence has been made out the Court may

direct the issue of process to the respondent and take further steps in the

matter. It has been held as under:

“34. The argument of the learned Attorney General that the

question of granting sanction for prosecution of a public

servant charged with an offence under the 1988 Act arises only

at the stage of taking cognizance and not before that is neither

supported by the plain language of the section nor the judicial

precedents relied upon by him. Though, the term ‘cognizance’

has not been defined either in the 1988 Act or the CrPC, the

same has acquired a definite meaning and connotation from

various judicial precedents. In legal parlance cognizance is

“taking judicial notice by the court of law, possessing

jurisdiction, on a cause or matter presented before it so as to

decide whether there is any basis for initiating proceedings and

determination of the cause or matter judicially”.

43. Before proceeding further, we would like to add that at

the time of taking cognizance of the offence, the Court is

required to consider the averments made in the complaint or

the charge sheet filed under Section 173. It is not open for the

Court to analyse the evidence produced at that stage and come

to the conclusion that no prima facie case is made out for

proceeding further in the matter. However, before issuing the

process, it that it is open to the Court to record the evidence

and on consideration of the averments made in the complaint

and the evidence thus adduced, find out whether an offence

has been made out. On finding that such an offence has been

made out the Court may direct the issue of process to the

respondent and take further steps in the matter. If it is a

charge-sheet filed under Section 173 CrPC, the facts stated by

the prosecution in the charge-sheet, on the basis of the

evidence collected during investigation, would disclose the

offence for which cognizance would be taken by the Court.

Thus, it is not the province of the Court at that stage to

embark upon and shift the evidence to come to the conclusion

whether or not an offence has been made out.”

19. Their lordships of the Hon’ble Supreme Court in the case of

Sarah Mathew vs. Institute of Cardio Vascular Diseases, by its Director

Dr. K.M. Cherian and others, reported in (2014) 2 SCC 62, have held that

cognizance is taken when the Magistrate applies his mind or takes judicial

notice of an offence with a view to initiating proceedings in respect of

offence which is said to have been committed. This is the special

connotation acquired by the term ‘cognizance’ and it has to be given the

same meaning wherever it appears in Chapter XXXVI. It has been held as

under:

“31. It is now necessary to see what the words ‘taking

cognizance’ mean. Cognizance is an act of the court. The term

‘cognizance’ has not been defined in the Cr.P.C. To understand

what this term means we will have to have a look at certain

provisions of the Cr.P.C. Chapter XIV of the Code deals with

‘Conditions requisite for initiation of proceedings’. Section 190

thereof empowers a Magistrate to take cognizance upon (a)

receiving a complaint of facts which constitute such offence; (b)

upon a police report of such facts; (c) upon information

received from any person other than a police officer, or upon

his own knowledge, that such offence has been committed.

Chapter XV relates to ‘Complaints to Magistrates’. Section 200

thereof provides for examination of the complainant and the

witnesses on oath. Section 201 provides for the procedure

which a Magistrate who is not competent to take cognizance

has to follow. Section 202 provides for postponement of issue

of process. He may, if he thinks fit, and shall in a case where

the accused is residing at a place beyond the area in which he

exercises his jurisdiction, postpone the issue of process

against the accused and either inquire into the case himself or

direct an investigation to be made by a police officer for the

purpose of deciding whether there is sufficient ground for

proceeding. Chapter XVI relates to commencement of

proceedings before the Magistrate. Section 204 provides for

issue of process. Under this section if the Magistrate is of the

opinion that there is sufficient ground for proceeding and the

case appears to be a summons case, he shall issue summons

for the attendance of the accused. In a warrant case, he may

issue a warrant. Thus, after initiation of proceedings detailed

in Chapter XIV, comes the stage of commencement of

proceedings covered by Chapter XVI.

34. Thus, a Magistrate takes cognizance when he applies his

mind or takes judicial notice of an offence with a view to

initiating proceedings in respect of offence which is said to

have been committed. This is the special connotation acquired

by the term ‘cognizance’ and it has to be given the same

meaning wherever it appears in Chapter XXXVI. It bears

repetition to state that taking cognizance is entirely an act of

the Magistrate. Taking cognizance may be delayed because of

several reasons. It may be delayed because of systemic

reasons. It may be delayed because of the Magistrate’s

personal reasons.

41. There can be no dispute about the rules of

interpretation cited by the counsel. It is true that there is no

ambiguity in the relevant provisions. But, it must be borne in

mind that the word ‘cognizance’ has not been defined in the

Cr.P.C. This Court had to therefore interpret this word. We

have adverted to that interpretation. In fact, we have proceeded

to answer this reference on the basis of that interpretation and

keeping in mind that special connotation acquired by the word

‘cognizance’. Once that interpretation is accepted, Chapter

XXXVI along with the heading has to be understood in that

light. The rule of purposive construction can be applied in

such a situation. A purposive construction of an enactment is

one which gives effect to the legislative purpose by following

the literal meaning of the enactment where that meaning is in

accordance with the legislative purpose or by applying a

strained meaning where the literal meaning is not in

accordance with the legislative purpose (See: Francis Bennion

on Statutory Interpretation). After noticing this definition given

by Francis Bennion in National Insurance Co. Ltd. v. Laxmi

Narain Dhut, this Court noted that :

“35. More often than not, literal interpretation of a

statute or a provision of a statute results in absurdity.

Therefore, while interpreting statutory provisions, the

courts should keep in mind the objectives or purpose for

which statute has been enacted.”

20. Their lordships of the Hon’ble Supreme Court in the case of

S.R. Sukumar vs. S. Sunaad Raghuram, reported in (2015) 9 SCC 609,

have held that taking cognizance of an offence means the Magistrate must

have judicially applied the mind to the contents of the complaint and

indicates that Magistrate takes judicial notice of an offence. A Magistrate

takes cognizance of an offence when he decides to proceed against the

person accused of having committed that offence and not at the time when

the Magistrate is just informed either by complainant by filing the

complaint or by the police report about the commission of an offence.

“Cognizance” therefore has a reference to the application of judicial mind

by the Magistrate in connection with the commission of an offence and not

merely to a Magistrate learning that some offence had been committed.

Only upon examination of the complainant, the Magistrate will proceed to

apply the judicial mind whether to take cognizance of the offence or not. It

has been held as under:

“8. Section 200 Cr.P.C. provides for the procedure for

Magistrate taking cognizance of an offence on complaint. The

Magistrate is not bound to take cognizance of an offence

merely because a complaint has been filed before him when in

fact the complaint does not disclose a cause of action. The

language in Section 200 Cr.P.C. “a Magistrate taking

cognizance of an offence on complaint shall examine upon oath

the complainant and the witnesses present, if any…” clearly

suggests that for taking cognizance of an offence on complaint,

the Court shall examine the complainant upon oath. The

object of examination of the complainant is to find out whether

the complaint is justifiable or is vexatious. Merely because the

complainant was examined that does not mean that the

Magistrate has taken cognizance of the offence. Taking

cognizance of an offence means the Magistrate must have

judicially applied the mind to the contents of the complaint

and indicates that Magistrate takes judicial notice of an

offence.

9. Mere presentation of the complaint and receipt of the same

in the court does not mean that the Magistrate has taken

cognizance of the offence. In Narsingh Das Tapadia vs.

Goverdhan Das Partani & Another., AIR 2000 SC 2946, it was

held that the mere presentation of a complaint cannot be held

to mean that the Magistrate has taken the cognizance.

11. Section 200 Cr.P.C. contemplates a Magistrate taking

cognizance of an offence on complaint to examine the

complaint and examine upon oath the complainant and the

witnesses present, if any. Then normally three courses are

available to the Magistrate. The Magistrate can either issue

summons to the accused or order an inquiry under Section

202 Cr.P.C. or dismiss the complaint under Section 203

Cr.P.C. Upon consideration of the statement of complainant

and the material adduced at that stage if the Magistrate is

satisfied that there are sufficient grounds to proceed, he can

proceed to issue process under Section 204 Cr.P.C. Section

202 Cr.P.C. contemplates ‘postponement of issue of process’. It

provides that the Magistrate on receipt of a complaint of an

offence of which he is authorised to take cognizance may, if he

thinks fit, postpones the issue of process for compelling the

attendance of the person complained against, and either

inquire into the case himself, or have an inquiry made by any

Magistrate subordinate to him, or an investigation made by a

police officer, or by some other person for the purpose of

deciding whether or not there is sufficient ground for

proceeding. If the Magistrate finds no sufficient ground for

proceeding, he can dismiss the complaint by recording briefly

the reasons for doing so as contemplated under Section 203

Cr.P.C. A Magistrate takes cognizance of an offence when he

decides to proceed against the person accused of having

committed that offence and not at the time when the

Magistrate is just informed either by complainant by filing the

complaint or by the police report about the commission of an

offence.

12. “Cognizance” therefore has a reference to the application of

judicial mind by the Magistrate in connection with the

commission of an offence and not merely to a Magistrate

learning that some offence had been committed. Only upon

examination of the complainant, the Magistrate will proceed to

apply the judicial mind whether to take cognizance of the

offence or not. Under Section 200 Cr.P.C., when the

complainant is examined, the Magistrate cannot be said to

have ipso facto taken the cognizance, when the Magistrate was

merely gathering the material on the basis of which he will

decide whether a prima facie case is made out for taking

cognizance of the offence or not. “Cognizance of offence” means

taking notice of the accusations and applying the judicial mind

to the contents of the complaint and the material filed

therewith. It is neither practicable nor desirable to define as to

what is meant by taking cognizance. Whether the Magistrate

has taken cognizance of the offence or not will depend upon

facts and circumstances of the particular case.”

21. Their lordships of the Hon’ble Supreme Court in the case of

Sunil Bharti Mittal vs. Central Bureau of Investigation, reported in

(2015) 4 SCC 609, have held that sine qua non for taking cognizance of the

offence is the application of mind by the Magistrate and his satisfaction

that the allegations, if proved, would constitute an offence. It is, therefore,

imperative that on a complaint or on a police report, the Magistrate is

bound to consider the question as to whether the same discloses

commission of an offence and is required to form such an opinion in this

respect. It has been held as under:

“48. Sine Qua Non for taking cognizance of the offence is the

application of mind by the Magistrate and his satisfaction that

the allegations, if proved, would constitute an offence. It is,

therefore, imperative that on a complaint or on a police report,

the Magistrate is bound to consider the question as to whether

the same discloses commission of an offence and is required to

form such an opinion in this respect. When he does so and

decides to issue process, he shall be said to have taken

cognizance. At the stage of taking cognizance, the only

consideration before the Court remains to consider judiciously

whether the material on which the prosecution proposes to

prosecute the accused brings out a prima facie case or not.

49. Cognizance of an offence and prosecution of an offender

are two different things. Section 190 of the Code empowered

taking cognizance of an offence and not to deal with offenders.

Therefore, cognizance can be taken even if offender is not

known or named when the complaint is filed or FIR registered.

Their names may transpire during investigation or afterwards.”

22. In the instant case, there is nothing on record to suggest that

the learned Chief Judicial Magistrate has considered whether the

complaint disclosed commission of offence or not. He was required to form

a definite opinion before summoning the accused after applying his mind to

the contents of the complaint.

23. Their lordships of the Hon’ble Supreme Court in the case of

Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others,

reported in (2015) 3 SCC 123, have held that cognizance is a process where

the court takes judicial notice of an offence so as to initiate proceedings in

respect of the alleged violation of law. At the stage of taking cognizance of

a case what is to be seen is whether there is sufficient ground for taking

judicial notice of an offence with a view to initiate further proceedings. It

has been held as under:

“ 10. At the stage of taking cognizance of a case what is to be

seen is whether there is sufficient ground for taking judicial

notice of an offence with a view to initiate further

proceedings. In S.K. Sinha, Chief Enforcement Officer v.

Videocon International Ltd. and others[1], this Court has

analysed the process and it has been held as follows:

"19. The expression "cognizance" has not been defined

in the Code. But the word (cognizance) is of indefinite

import. It has no esoteric or mystic significance in

criminal law. It merely means "become aware of" and

when used with reference to a court or a Judge, it

connotes "to take notice of judicially". It indicates the

point when a court or a Magistrate takes judicial notice

of an offence with a view to initiate proceedings in

respect of such offence said to have been committed by

someone.

20. "Taking cognizance" does not involve any formal

action of any kind. It occurs as soon as a Magistrate

applies his mind to the suspected commission of an

offence. Cognizance is taken prior to commencement of

criminal proceedings. Taking of cognizance is thus a sine

qua non or condition precedent for holding a valid trial.

Cognizance is taken of an offence and not of an offender.

Whether or not a Magistrate has taken cognizance of an

offence depends on the facts and circumstances of each

case and no rule of universal application can be laid

down as to when a Magistrate can be said to have taken

cognizance."

11. The above view has been further endorsed in Bhushan

Kumar and another v. State (NCT of Delhi) and another[2]

holding that:

"11. In Chief Enforcement Officer v. Videocon

International Ltd. (SCC p. 499, para 19) the expression

"cognizance" was explained by this Court as [pic]"it

merely means 'become aware of' and when used with

reference to a court or a Judge, it connotes 'to take

notice of judicially'. It indicates the point when a court or

a Magistrate takes judicial notice of an offence with a

view to initiating proceedings in respect of such offence

said to have been committed by someone." It is entirely a

different thing from initiation of proceedings; rather it is

the condition precedent to the initiation of proceedings

by the Magistrate or the Judge. Cognizance is taken of

cases and not of persons. Under Section 190 of the

Code, it is the application of judicial mind to the

averments in the complaint that constitutes cognizance.

At this stage, the Magistrate has to be satisfied whether

there is sufficient ground for proceeding and not whether

there is sufficient ground for conviction. Whether the

evidence is adequate for supporting the conviction can

be determined only at the trial and not at the stage of

enquiry. If there is sufficient ground for proceeding then

the Magistrate is empowered for issuance of process

under Section 204 of the Code."

12. In Smt. Nagawwa v. Veeranna Shivalingappa Kinjalgi

and others[3], the extent to which the Magistrate can go at the

stage of taking cognizance has been discussed. To quote:

"5. ... It is true that in coming to a decision as to whether

a process should be issued the Magistrate can take into

consideration inherent improbabilities appearing on the

face of the complaint or in the evidence led by the

complainant in support of the allegations but there

appears to be a very thin line of demarcation between a

probability of conviction of the accused and

establishment of a prima facie case against him. The

Magistrate has been given an undoubted discretion in

the matter and the discretion has to be judicially

exercised by him. Once the Magistrate has exercised his

discretion it is not for the High Court, or even this Court,

to substitute its own discretion for that of the Magistrate

or to examine the case on merits with a view to find out

whether or not the allegations in the complaint, if

proved, would ultimately end in conviction of the

accused. ..."

13. Cognizance is a process where the court takes judicial

notice of an offence so as to initiate proceedings in respect of

the alleged violation of law. The offence is investigated by the

police. No doubt, the court is not bound by the report

submitted by the police under Section 173(2) of Cr.PC. If the

report is that no case is made out, the Magistrate is still free,

nay, bound, if a case according to him is made out, to reject

the report and take cognizance. It is also open to him to order

further investigation under Section 173(8) of Cr.PC.

14. In the case before us, the learned Magistrate went

through the entire records of the case, not limiting to the

report filed by the police and has passed a reasoned order

holding that it is not a fit case to take cognizance for the

purpose of issuing process to the appellant. Unless the order

passed by the Magistrate is perverse or the view taken by the

court is wholly unreasonable or there is non- consideration of

any relevant material or there is palpable misreading of

records, the revisional court is not justified in setting aside the

order, merely because another view is possible. The revisional

court is not meant to act as an appellate court. The whole

purpose of the revisional jurisdiction is to preserve the power

in the court to do justice in accordance with the principles of

criminal jurisprudence. Revisional power of the court under

Sections 397 to 401 of Cr.PC is not to be equated with that of

an appeal. Unless the finding of the court, whose decision is

sought to be revised, is shown to be perverse or untenable in

law or is grossly erroneous or glaringly unreasonable or where

the decision is based on no material or where the material

facts are wholly ignored or where the judicial discretion is

exercised arbitrarily or capriciously, the courts may not

interfere with decision in exercise of their revisional

jurisdiction.

15. The whole purpose of taking cognizance of an offence

under Section 190(1)(b) Cr.PC is to commence proceedings

under Chapter XVI of the Cr.PC by issuing process

under Section 204 Cr.PC to the accused involved in the case.

No doubt, it is not innocence but involvement that is material

at this stage. Once the legal requirements to constitute the

alleged offence qua one of the accused are lacking, there is no

point in taking cognizance and proceeding further as against

him.”

24. Their lordships of the Hon’ble Supreme Court in the case of

Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others,

reported in (2015) 12 SCC 420, have held that where complaint on the face

of it does not disclose commission of any offence, cognizance under Section

190(1) (a) Cr.P.C. must not be taken. The complaint must be simply

rejected in such a case. Their lordships have further held that since it is a

process of taking judicial notice of certain facts which constitute an

offence, there has to be application of mind as to whether the allegations in

the complaint, when considered along with the statements recorded or the

inquiry conducted thereon, would constitute violation of law so as to call a

person to appear before the criminal court. It is not a mechanical process

or matter of course. To set in motion the process of criminal law against a

person is a serious matter. It has been held as under:

“[23] The extensive reference to the case law would clearly

show that cognizance of an offence on complaint is taken for

the purpose of issuing process to the accused. Since it is a

process of taking judicial notice of certain facts which

constitute an offence, there has to be application of mind as to

whether the allegations in the complaint, when considered

along with the statements recorded or the inquiry conducted

thereon, would constitute violation of law so as to call a person

to appear before the criminal court. It is not a mechanical

process or matter of course. As held by this Court in Pepsi

Foods Limited, to set in motion the process of criminal law

against a person is a serious matter.

[24] Having gone through the order passed by the Magistrate,

we are satisfied that there is no indication on the application of

mind by the learned Magistrate in taking cognizance and

issuing process to the Appellants. The contention that the

application of mind has to be inferred cannot be appreciated.

The further contention that without application of mind, the

process will not be issued cannot also be appreciated. Though

no formal or speaking or reasoned orders are required at the

stage of Section 190/204 Code of Criminal Procedure, there

must be sufficient indication on the application of mind by the

Magistrate to the facts constituting commission of an offence

and the statements recorded Under Section 200 of Code of

Criminal Procedure so as to proceed against the offender. No

doubt, the High Court is right in holding that the veracity of

the allegations is a question of evidence. Question is not about

veracity of the allegations; but whether the Respondents are

answerable at all before the criminal court. There is no

indication in that regard in the order passed by the learned

Magistrate.”

25. The learned Single Judge of the Orissa High Court in the case

of Makaradhwaj Sahu and another v. The State, reported in AIR 1954

Orissa 175 has held that where a Forester reported to the Divisional Forest

Officer who, in his turn, reported to the Police, and the Police, in their turn,

after investigation charge-sheeted the accused persons under Section 186

IPC, the cognizance without complaint in writing of the officer concerned

was without compliance with the provisions of Section 194 CrPC and was

fatal to the prosecution. It has been held as under:

“2. In revision Mr. Sahu raised a very interesting point of law

and urged that the prosecution has not been validly instituted.

It appears that the Forester reported to the Divisional Forest

Officer who, in his turn, reported to the Police, and the Police,

in their turn, after investigation charge-sheeted the accused

persons. Reliance is placed on Section 195 of the Criminal

Procedure Code which lays down that no Court shall take any

cognizance of an offence under Section 186. I.P.C. except on

the complaint in writing of the Officer concerned or of some

one to whom he is subordinate. Admittedly, this provision has

not been followed in this case. This Court has held in more

than one case that non-compliance with the strict provisions

of Section 195 is fatal to the prosecution and it cannot be said

in this case that cognizance of the offence has been taken in

accordance with law. I have therefore no doubt in my mind

that the conviction of the petitioner under Section 186, I.P.C.

is not sustainable and must be set aside.”

26. The Learned Single Judge of Bombay High Court in Krishna

Tukaram Jadhav and another v. The Secretary to the Chief Minister,

Bombay State reported in AIR 1955 Bom. 315, has held that a complaint

in writing by "the public servant concerned is a condition precedent to the

cognizance being taken by a Magistrate of an offence mentioned in Section

195 (1) (a), Criminal P. C. and that condition must be strictly complied

with. A complaint not by the public servant concerned or by some public

servant to whom he is subordinate, but by a person who is merely

authorised in writing to file a complaint in his own name is not a good

substitute for the requisite complaint so as to confer jurisdiction upon the

Magistrate. Section 195, Criminal P. C. does not permit any delegation of

authority by the public servant concerned. When the Legislature has

thought it necessary to permit even a limited delegation to be made, an

express provision to that effect has been made in the Code. The Learned

Single Judge has held as under:

“[4] A complaint in writing by "the public servant concerned is

a condition precedent to the cognizance being taken by a

Magistrate of an offence mentioned in Section 195 (1) (a) ,

Criminal P. C. and that condition must be strictly complied

with. A complaint not by the public servant concerned or by

some public servant to whom he is subordinate, but by a

person who is merely authorised in writing to file a complaint

in his own name is not a good substitute for the requisite

complaint so as to confer jurisdiction upon the Magistrate.

Section 195, Criminal P. C. does not permit any delegation of

authority by the public servant concerned. When the

Legislature has thought it necessary to permit even a limited

delegation to be made, an express provision bo that effect has

been made in the Code. In Section 476, Criminal P. C. which

deals with the procedure of filing complaints in cases

mentioned in Section 195, it is expressly provided by the first

proviso that

".. . Where the. Court making the complaint is a High Court,

the complaint may be signed by such officer of the Court as

the Court may appoint. " The Legislature not having made any

similar provision, it would be reasonable to hold that

delegation of authority to file a complaint by the public servant

concerned is not permissible. That view finds support in a Full

Bench decision of this Court reported in -- 'punamchand

Manek-lal. In re', AIR 1914 Bom 138 (A). It was observed in

that case by Heaton J. that where an Income-tax Collector

does not choose to give sanction to prosecute an accused,

person as he could have done under Section 195 (b) and (c) ,

as they then stood, but he chooses to make a complaint, it is

not permissible to him to delegate his authority. In that case

the complaint was not lodged by the District Magistrate but by

a certain Mr. Lakhia by order of the District Magistrate, and it

was observed by Heaton J. In considering the validity of the

proceedings started at the instance of Mr. Lakhia:

".. . It was argued that because the complaint, which was made

against this applicant was lodged by a certain Mr. Lakhia by

order of the District Magistrate or the Collector, and because

the Collector is a public servant to whom the Income-tax

Collector is subordinate, therefore this complaint may be

regarded as a complaint of the kind provided for in clause (a) of

Section 195. But that clause provides that the public servant

concerned may cither give a sanction or make a complaint and

that seems to me to exclude the idea that a public servant may

make a complaint by any form of delegation. It seems to me

that he must make the complaint, if he wishes to take that

course, personally. If he "does not wish to take that course

personally, the delegation is obtained by giving the sanction.

Similarly the Collector as superior officer, though personally no

doubt he. might make the complaint, cannot delegate the

making of a com plaint to another. " Those observations in my

judgment are very pertinent in the present case.

[5] On behalf of the State reliance was sought to be placed

upon certain observations made in a judgment of this Court

reported in --'in re, Aparao', AIR 1918 Bom 141 (B). That was a

case in which a District Judge forwarded to the District

Magistrate a copy of his judgment with a letter in which he

called attention to remarks relating to forgery of a will and

requested the latter to take up the matter for prompt

investigation. Without examining the District Judge on oath in

support of the tatements in his letter, the District Magistrate

ordered a police investigation and treating the letter as a

complaint, he brought the case for trial before a competent

Magistrate. The accused applied to the High Court in revision

and it was held that the failure to examine the District Judge

on oath was an irregularity of a kind which came within those

enumerated in clause (a) of Section 537, Criminal P. C. , and

that, therefore, the proceedings against the accused were

properly initiated. The point of law decided in that case is not

likely to arise, since the amendment to Section 200, Criminal

P. C. which has obviated the necessity of examining public

servants on oath when they file complaints in their official

capacity. But reliance was sought to be placed upon the

observations made at p 142 where Heaton J. observed that the

real purpose of the provisions of Section 195 was that no man

concerned or supposed to be concerned in any of the offences

enumerated in Section 195 when this supposed offence arises

in connection with a case or with judicial proceedings and so

forth shall be proceeded against unless the Court or officer

concerned indicates that he thinks the case ought to be

inquired into. Section 195 (a) before it was amended in 1923

provided that no Court shall take cognizance of any offence

punishable under Section 172 to 188, Penal Code except with

the previous sanction or on the complaint of the public servant

concerned or of some other public servant to whom he was

subordinate. It was possible, before the Code was amended in

the year 1923, for a public servant to give sanc tion for

prosecution for offences specified in that sub section and no

form of sanction was provided by the Code of Criminal

Procedure. In those circum stances if there was evidence to

indicate that the public servant concerned dusired that the

offender, should be prosecuted, that was sufficient compliance

with the terms of Section 195 and a sanction may be deemed

to be given. The Legislature has now deleted the words "with

the previous sanction or in the section as it stood at the date

when the case in 'in re Aparao (B) ' was decided. The obser

vations made in that case can have no validity since the

amendment of the Code of Criminal Procedure in the year

1923.

[6] Reliance was also sought to be placed upon a judgment of a

single Judge of the Allahabad High Court reported in -- 'barkat

v. Emperor', AIR 1943 All 6 (C). Allsop J. who decided that case

appears to have taken the view that the expression 'complaint'

used in Section 195 (1) (a) was not intended to be used in the

sense of a complaint as defined in Section 4 (1) (h) , Criminal

P. C. In the view of the learned Judge the intention of Section

195 is only that Magistrate should not punish any person

except at the instance of the public officer concerned or his

superior, and he did not think that the term' 'complaint' was

used in the technical sense in which it was defined in Section

4, With great respect to the learned Judge I am unable to agree

with that view. When the Legislature makes the jurisdiction oe

a criminal Court dependent upon a complaint in writing by the

public servant concerned, you cannot substitute the complaint

by some other information or report--not of the 'public servant

concerned' but of some other person who has moved the

Magistrate at the instance of the public servant--and say that

the requirements of the statute are complied with. If the

Legislature has provided a condition precedent to the exercise

of jurisdiction by a Court, die condition -precedent must be

strictly complied with and a substitute cannot in my judgment

avail the Magistrate to assume jurisdiction. It is true that the

view taken by Allsop J. appears io have met with approval of a

Division Bench of the Saurashtra High Court presided over by

Divatia C. J. In -- 'state v. Nandlal', AIR 1951 Sau 8 (D). The

learned Chief Justice in delivering the judgment of the Court

does not appear to have given any additional reasons besides

those given by Allsop J. In 'barkat v- Emperor (C) '. I do not

think that the view which appealed to the learned Chief Justice

can be accepted.”

27. The complaint has neither been lodged by Insp. Jagdish Chand

nor by some public servant to whom he was administratively subordinate

or other police officers/officials present in the Police Station (SV & ACB),

including Superintendent of Police (SV & ACB). The complaint has been

filed under the signatures of SHO, Police Station Dharamshala. The

Superintendent of Police could not delegate the power to SHO, PS

Dharamshala to file the complaint under Section 186 IPC. Thus, the

learned Chief Judicial Magistrate, Kangra at Dharamshala has no

jurisdiction to take cognizance.

28. A Division Bench of the Saurashtra High Court in State v.

Kathi Unad Ranning and others reported in AIR 1955 (Saurashtra) 10,

has held that before starting a prosecution for an offence under Section

186 IPC, a compliance with the provisions of Section 195 (1) Cr.P.C. is a

condition precedent to the Court assuming jurisdiction and failure to

comply with these provisions will vitiate the entire trial as without

jurisdiction. The Division Bench has held as under:

“(5) The Advocate-General next contended that if there was an

irregularity in the complaint, it was cured by Section 537,

Criminal P. C. and referred to 'AIR 1943 All 6 (B)', cited above.

A compliance with the provisions of Section 195(1) is a

condition precedent to the Court assuming jurisdiction and

failure to comply with those provisions would vitiate the entire

trial as without jurisdiction and it is doubtful whether Section

537 can be pressed into service to cure a defect of jurisdiction.

Moreover assuming that the learned Advocate-General's

contention is well founded it is fat no assistance to

him. Section 537 comes into play, when in spite of a

procedural irregularity the appellate Court confirms the order

of the lower Court, as was so done in 'AIR 1943 All I (B)', upon

which the learned Advocate-General relied.”

29. The learned Single Judge of the Calcutta High Court in the

case of Basanta Kumar Gon v. The State, reported in AIR 1956 Cal 118,

has held that a Magistrate cannot take cognizance of an offence under

Section 186 of the IPC, unless there is a complaint either by the public

servant concerned or by some other officer, to whom he is subordinate. The

Learned Single Judge has held as under:

“[6] It appears to me that there is substance in Mr. Banerjee's

contention. The real complaint in this case is that there was

obstruction to a public servant in the discharge of public

functions. Now it is an offence which is covered by Section

186, I.P.C. That section requires that before a prosecution for

such obstruction can be launched there must be a previous

complaint made either by the public servant concerned or by

some officer to whom the public servant is subordinate.

Section 195 (1) (a) lays down that before cognizance can be

taken of an offence under Section 186 and other cognate

sections of the Indian Penal Code, there must be a complaint

by the public servant concerned or by some public servant to

which the public servant is subordinate. As a matter of fact, in

the present case, there has been no such complaint and in

that view the Magistrate felt compelled to acquit the accused

petitioner.

I think it cannot be said that since the petitioner appeared

before an attestation officer although on invitation and

behaved in a manner which did not redound to his credit, he

should be held guilty under Section 448, I. P. C. Under the

latter charge there must be an un-lawful entry and there must

be proof of one or other of the intentions mentioned in Section

441 of the Code.

It has to be found upon evidence that the person concerned

entered a place which was in the possession of another and

that the entry was made with a view to causing insult,

annoyance or injury to the person concerned. I do not think it

possible to say on the evidence in the case that there was such

intention present on the part of the petitioner.”

30. Their Lordships of Hon'ble Supreme Court in the case of

Daulat Ram v. State of Punjab reported in AIR 1962 SC 1206 have held

that the offence under Section 182 IPC is complete when a person moves

the public servant for action. Where a person reports to a Tehsildar to take

action on averment of certain facts, believing that the Tehsildar would take

some action upon it, and the facts alleged in the report are found to be

false, it is incumbent, if the prosecution is to be launched, that the

complaint in writing should be made by the Tehsildar as the public servant

concerned under Section 182 IPC, and not leave it to the police to put a

charge sheet. The complaint must be in writing by the public servant

concerned. The trial under Section 182 IPC without the Tehsildar’s

complaint in writing was therefore without jurisdiction ab initio. Their

lordships have held as under:

“[4] Now the offence under S. 182 of the Penal Code, if any,

was undoubtedly complete when the appellant had moved the

Tehsildar for action. Section 182 does not require that action

must always by taken if the person who moves the public

servant knows or belives that action would be taken. In

making his report to the Tehsildar therefore if the appellant

believed that some action would be taken (and he had no

reason to doubt that it would not) the offence under that

section was complete. It was therefore incumbent, if the

prosecution was to be launched, that the complaint in writing

should be made by the Tehsildar as the public servant

concerned in this case. On the other hand what we find is that

a complaint by the Tehsildar was not filed at all, but a charge

sheet was put in by the Station House Officer. The learned

counsel for the State Government tries to support the action by

submitting that S. 195 had been complied with inasmuch as

when the allegations had been disproved, the letter of the

Superintendent of Police was forwarded to the Tehsildar and

he asked for" a calendar."(Sic This paper was filed along with

the charge sheet and it is stated that this satisfies the

requirements of S. 195. In our opinion, this is not a due

compliance with the provisions of that section. What the

section Contemplates is that the complaint must be in writing

by the public servant concerned and there is no such

compliance in the present case. The cognizance of the case was

therefore wrongly assumed by the court without the complaint

in writing of the public servant namely the Tehsildar in this

case. The trial was thus without jurisdiction ab initio and the

conviction cannot be maintained.”

31. The Learned Single Judge of Madras High Court in the case of

Sudalaimadam and another vs. The State, reported 1985 Crl. LJ 1310,

has held that the complaint referred to in S. 195, Cr.P.C. is a complaint to

the Court and not a complaint to the Police. Inasmuch as the complaint in

this case for an offence under Section 186 IPC was preferred nor before the

Court but before the Sub Inspector of Police by the concerned, Special

Deputy Tehsildar who was said to have been obstructed by the accused,

the prosecution under Section 186 IPC could not stand. The Learned Single

Judge has held as under:

“[4] It is pointed out by the learned Public Prosecutor, that the

said V. V. Sundararajan has given a complaint in writing to the

police and it is on that basis the police have filed a charge

sheet and hence there is due compliance of the provisions of S.

195(1)(a)(i), Crl. P.C. The contention has no substance. S. 2(d),

Crl. P.C. defines 'complaint' as 'any allegation made orally or in

writing to a Magistrate, with a view to his taking action under

this Code, that some person, whether known or unknown, has

committed an offence, but does not include a police report."

Hence, the complaint referred to in S. 195, Cr.P.C. is a

complaint to the Court and not a complaint to the Police. No

doubt, explanation to S. 2(d) makes any report made by a

police officer in case which discloses, after investigation, the

commission of a non-cognizable offence to be a complaint. But

in that case, the police officer by whom such report is made

shall be deemed to be the complainant. What S. 195 of the

Code of Criminal Procedure requires is that the complainant

before the Court must be the officer concerned. Inasmuch as

the complaint in this case for an offence under S. 186, I.P.C.

has not been preferred before the Court by the concerned

special Deputy Tahsildar, B Bond check post, Puliyari, who is

said to have been obstructed by the petitioners-accused, this

prosecution under S. 186, I.P.C. cannot stand.”

32. The Learned Single Judge of Calcutta High Court in the case of

Mrityunjoy Das v. State, reported in 1987 Crl. L.J. 909, has held that

cognizance taken by Magistrate without a written complaint is illegal. The

Learned Single Judge has held as under:

“ [6] Be that as it may from the F.I.R. it becomes quite clear

that an attempt was made in this case to evade the provision of

Section 195, Cr.P.C. As per the F.I.R. the present petitioners

obstructed the process server in his bid to deliver possession of

the decretal shop room, threatened to assault and kill him and

dared him to deliver possession and the petitioner 1,

Mrityunjoy pushed him aside. These allegations are covered by

Sections 186 and 189 if not Section 183 also of the Penal Code

and Sections 353 and 506 of the I.P.C. were resorted to

presumably for evading the provisions of Section 195, Cr.P.C.

In the absence of a written complaint, therefore, cognizance

should not have been taken in this case by learned Magistrate.

The case, therefore, should not be allowed to go on. The

proceeding of the G.R. Case No. 341 of 1977 of the Court of the

learned Judicial Magistrate, Nabadwip is hereby quashed and

the rule is hereby made absolute.

Send the case records back to the learned Court immediately.”

33. Their lordships of the Hon'ble Supreme Court in the case of

State of U.P. vs. Mata Bhikh and others, reported in (1994) 4 SCC 95

have held that the Court is barred from taking cognizance of the offences

mentioned therein except on a written complaint by 'the public servant

concerned' and private complaint is not maintainable. if the public servant

concerned does not or refuses to make a complaint, some other public

servant to whom he is administratively subordinate, could prefer a

complaint. Their lordships have held as under:

“[6] The object of this section is to protect persons from being

vexatiously prosecuted upon inadequate materials or

insufficient grounds by person actuated by malice or ill-will or

frivolity of disposition at the instance of private individuals for

the offences specified therein. The provisions of this section, no

doubt, are mandatory and the court has no jurisdiction to take

cognizance of any of the offences mentioned therein unless

there is a complaint in writing of 'the public servant concerned'

as required by the section without which the trial under

Section 188 of the Indian Penal Code becomes void ab initio.

See Daulat Ram v. State of Punjab. To say in other words a

written complaint by a public servant concerned is sine qua

non to initiate a criminal proceeding under Section 188 of the

Indian Penal Code against those who, with the knowledge that

an order has been promulgated by a public servant directing

either 'to abstain from a certain act, or to take certain order,

with certain property in his possession or under his

management' disobey that order. Nonetheless, when the court

in its discretion is disinclined to prosecute the wrongdoers, no

private complainant can be allowed to initiate any criminal

proceeding in his individual capacity as it would be clear from

the reading of the section itself which is to the effect that no

court can take cognizance of any offence punishable under S.

172 to 188 of the Indian Penal Code except on the written

complaint of 'the public servant concerned' or of some other

public servant to whom he (the public servant who

promulgated that order) is administratively subordinate.

[7] A cursory reading of Section 195 (l) (a) makes out that in

case a public servant concerned who has promulgated an

order which has not been obeyed or which has been disobeyed,

does not prefer to give a complaint or refuses to give a

complaint then it is open to the superior public servant to

whom the officer who initially passed the order is

administratively subordinate to prefer a complaint in respect of

the disobedience of the order promulgated by his subordinate.

The word 'subordinate' means administratively subordinate i.

e. some other public servant who is his official superior and

under whose administrative control he works.”

34. The Learned Single Judge of Delhi High Court in the case of

Gurcharan Singh and another v. State, reported in 2002 Crl. LJ 2130

has held that the complaint should be filed by the concerned public

servant with a prayer to take action against the accused and whenever

such complaint under Section 195 Code of Criminal Procedure is filed

along with charge-sheet under Section of the 173 Code of Criminal

Procedure, the Courts while taking cognizance, should also take note of

such complaint, to avoid any technical objection at a later stage. The

learned Single Judge has held as under:

“[7] In this case, there was nothing in the complaint quoted

above to indicate that the complaint was made to the

Magistrate for taking action under Section 186 Indian Penal

Code. Mere consent of the SHO for prosecution of the accused

cannot be construed as the complaint. Further, there is

nothing on record to indicate that the cognizance was taken by

the Magistrate on the basis of complaint under Section 195

Code of Criminal Procedure Therefore, the charge under

Section 186 Indian Penal Code against the petitioner is not

sustainable. It is needless to observe that in all such cases, the

complaint should be filed by the concerned public servant with

a prayer to take action against the accused and whenever such

complaint under Section 195 Code of Criminal Procedure is

filed along with charge-sheet Under Section 173 Code of

Criminal Procedure, the Courts while taking cognizance,

should also take note of such complaint, to avoid any technical

objection at a later stage.”

35. Their Lordships of Hon'ble Supreme Court in the case of P.D.

Lakhani and another v. State of Punjab and another, reported in (2008)

5 SCC 150 have explained the term “complaint in writing of the public

servant concerned” under section 195 (1) (a) (i) Cr.P.C. Their lordships have

held that there was no provision for delegation of power under section 195

(1) (a) (i) Cr.P.C. and the proceedings initiated under Section 182 IPC

against complainant company by SHO were incompetent. Their lordships

have held as under:

“13. The report of compliance by Gian Singh was made to

the CIA staff. CIA staff, in turn, placed it before the Senior

Superintendent of Police. The proceedings, therefore, were,

indisputably, initiated by the Senior Superintendent of Police,

Jallandhar and not by the Station House Officer,. The Station

House Officer would have jurisdiction to investigate into the

matter provided a first information report was lodged by him in

terms of the complaint made by the appellant No.2. Whatever

action was taken in the matter was pursuant to the order of

the Senior Superintendent of Police Jalandhar.

14. The High Court, in our opinion, thus, committed a

manifest error in so far as it held that the as the complaint was

addressed to the SHO, he was the appropriate authority to

lodge a complaint in respect of an offence punishable under

Section 182 of the Indian Penal Code.

15. The fact that the search was made pursuant to the

directions issued by the Senior Superintendent of Police,

Jalandhar is not in dispute. Section 195 contains a bar on the

Magistrate to take cognizance of any offence. When a

complaint is not made by the appropriate public servant, the

Court will have no jurisdiction in respect thereof. Any trial held

pursuant thereto would be wholly without jurisdiction. In a

case of this nature, representation, if any, for all intent and

purport was made before the Senior Superintendent of Police

and not before the Station House Officer. No complaint,

therefore, could be lodged before the learned Magistrate by the

Station House Officer. Even assuming that the same was done

under the directions of Senior Superintendent of Police,

Jallandhar, Section 195, in no uncertain terms, directs filing of

an appropriate complaint petition only by the public servant

concerned or his superior officer. It, therefore, cannot be done

by an inferior officer. It does not provide for delegation of the

function of the public servant concerned.

16. We may notice that in terms of sub-section (3) of Section

340 of the Code, a complaint may be signed by such an officer

as the High Court may appoint if the complaint is made by the

High Court. But in all other cases, the same is to be done by

the presiding officer of the court or by such officer of the court

as it may authorize in writing in this behalf. Legislature, thus,

wherever thought necessary to empower a court or public

servant to delegate his power, made provisions therefor. As the

statute does not contemplate delegation of his power by the

Senior Superintendent of Police, we cannot assume that there

exists such a provision. A power to delegate, when a complete

bar is created, must be express; it being not an incidental

power.”

36. Their Lordships of Hon'ble Supreme Court in the case of C.

Muniappan and others v. State of Tamilnadu, reported in (2010) 9 SCC

567 have held that the legislative intent behind Section 195 (1) (a) (i)

Cr.P.C. read with section 188 is that an individual should not face criminal

prosecution instituted upon insufficient grounds by persons actuated by

malice, ill will or frivolity of disposition and to save the time of the criminal

courts being wasted by endless prosecutions. There must be a complaint

by the public servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195 Cr.PC are

mandatory. 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. Their lordships

have held as under:

“33. Thus, in view of the above, the law can be summarized

to the effect that there must be a complaint by the public

servant whose lawful order has not been complied with. The

complaint must be in writing. The provisions of Section 195

Cr.PC 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.”

37. The complaint filed under the signatures of SHO, PS

Dharamshala cannot be termed as complaint under Section 195 (1) (a)

Cr.P.C. The complaint could only be filed by the officer concerned.

38. Now, the Court will advert to whether there was sufficient

material to proceed against the accused for committing offence under

Section 186 IPC. In the complaint based on DDR Nos. 12(A) & 15(A), it is

stated that Insp. Jagdish Chand and other staff members were present in

Police Station (SV & ACB), Dharamshala and the accused initially entered

the Police Station and thereafter went to the Office of Superintendent of

Police (SV & ACB). They disrupted the government administration for half

an hour. It is not stated that what duties were being discharged by those

police officers/officials present in the Police Station and which one of them

was obstructed voluntarily from discharging official functions. In order to

attract the provisions of Section 186 IPC, it has to be seen whether the

public servant in the discharge of his public functions has been voluntarily

obstructed or not. It is reiterated that what mentioned in the complaint is

that the government administration was disrupted for half an hour. Merely

the disruption of government administration without mentioning that the

public servants were obstructed voluntarily from discharge of their public

functions would not attract Section 186 IPC.

39. The learned Single Judge of the Patna High Court in the case

of Janki Prasad Tibrewal and others v. The State of Bihar, reported in

1975 Crl. LJ 575 has held that the expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and obstacle in

the way of public servant and it implies use of criminal force. It has been

held as under:

“[7] Considering these decisions it is clear that the real test is

whether the facts alleged against an accused disclosed two

distinct offences or whether the facts disclosed primarily an

offence for which a complaint by a public servant is required,

The main allegation which has been made in this case against

the petitioners is that they voluntarily obstructed the Dalpati

and the Mukhia who are public servants in the discharge of

their duties as such. The expression 'obstruct' used in Section

186 of the Indian Penal Code envisages actual resistance and

obstacle in the way of public servant and it implies use of

criminal force. So if these petitioners are alleged to have

assaulted the Dalpati and the Mukhia in the course of

voluntarily obstructing the public servant from discharging

their duties, the offences under Sections 323, 324 and 353 of

the Indian Penal Code are so connected with the primary

offence of Section 186 of the Indian Penal Code that it is

difficult to say that those offences constituted separate

offences other than an offence under Section 186 of the Indian

Penal Code. The very fact of obstruction in the instant case

implies assault and hurt to the public servant concerned and

so the primary offence alleged to have been committed by these

petitioners is one under Section 186 of the Indian Penal Code

and if cognizance is taken of the offences on the basis of police

report only under Sections 323, 324 and 353 of the Indian

Penal Code, it will amount to circumventing the provisions of

Section 195 of the Code which is not permissible in law.”

40. What emerges from the discussion is that Section 195 (1)(a) of

Cr.P.C. has not been complied with. Section 195 Cr.P.C. is mandatory.

The power to file the complaint could not be delegated to SHO, Police

Station, Dharamshala. The complaint should have been initiated at the

instance of the public servant concerned or his superior officer. Thus, in

view of the matter, the learned Chief Judicial Magistrate, Dharamshala had

no jurisdiction in the case as there was no complaint in writing before him

by the public servant concerned or his superior. The material placed on

record was not sufficient to initially permit the investigation of the case and

thereafter to summon the accused and put them to notice of accusation.

41. Accordingly, the petition is allowed. The complaint filed by

SHO, PS Dharamshala before the learned Chief Judicial Magistrate,

Dharamshala vide Annexure P-1, summoning order dated 10.3.2014,

notice of accusation dated 7.11.2015 and other consequential orders are

quashed and set aside. Pending application(s), if any, also stands disposed

of.

May 30, 2016, ( Rajiv Sharma ),

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