Supreme Court of India
Devendra Kumar vs The State (Nct Of Delhi) on 20 August, 2025
2025 INSC 1009 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO. 12373 OF 2025
DEVENDRA KUMAR ...PETITIONER(S)
VERSUS
THE STATE (NCT OF DELHI) & ANR. ...RESPONDENT(S)
JUDGMENT
Signature Not Verified
Digitally signed by
CHANDRESH
Date: 2025.08.20
18:22:36 IST
Reason:
J.B. PARDIWALA, J.:
For the convenience of exposition, this judgment is divided in the following parts: –
INDEX
A. BRIEF FACTUAL MATRIX …………………………………………………………………2B. IMPUGNED ORDER ……………………………………………………………………………8
C. SUBMISSIONS ON BEHALF OF THE PETITIONER ………………………..10
D. ANALYSIS …………………………………………………………………………………………. 11
i. Section 186 of the I.P.C. ……………………………………………………………………..15
ii. Section 195 of the Cr.P.C. ……………………………………………………………………23
E. CONCLUSION……………………………………………………………………………………47
Special Leave Petition (Crl.) No. 12373 of 2025 Page 1 of 50
1. This petition arises from the judgment and order passed by the High Court of
Delhi dated 12th September 2024 in Writ Petition (Criminal) No. 2047 of 2013
and connected Criminal Miscellaneous Application No. 18861 of 2013 by which
the writ petition along with the connected application came to be rejected,
thereby affirming the order dated 28.11.2018 passed by the Chief Metropolitan
Magistrate directing registration of the FIR against the petitioner-herein for the
offence punishable under Sections 186 and 341 respectively of the Indian Penal
Code, 1860 (for short, “I.P.C”).
A. BRIEF FACTUAL MATRIX
2. It appears from the materials on record that the respondent no. 2 herein 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 on 03.10.2013. It is the case of the
respondent no. 2 that few police officials, more particularly, the petitioner-herein
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.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 2 of 50
3. The respondent no. 2 brought the alleged misconduct on part of the petitioner to
the notice of the District and Sessions Judge of Shahdara in the form of voluntary
obstruction said to have been caused in the discharge of his public functions. The
District and Sessions Judge assigned the complaint to the Administrative Civil
Judge who in turn lodged a private complaint in the court of the Chief
Metropolitan Magistrate, Karkardooma Courts, Delhi.
4. The Chief Metropolitan Magistrate vide order dated 28.11.2013 directed the
registration of FIR under Sections 186 and 341 respectively of the I.P.C. The
order passed by CMM, Shahdara, Delhi dated 28.11.2013 reads thus:
“The present complaint case was filed u/s. 195 Cr.P.C. by Ld. ACJ,
Shahdara.
Allegations of Shri Ravi Dutt Sharma (Process Server) are that one
warrant issued by the court of Shri Sharad Gupta, Ld. MM and one
summon issued by the court of Shri Arvind Kumar, Ld. AD) were
assigned to him to be served to SHO PS Nand Nagri. On 3.10.2013
he reached PS Nand Nagri at about 12.30 P.M. One Ct Sanjay
Kumar Sharma was present in the room of 5-8. The said constable
received the processes but signed as HC Brahmjeet. Process Server
Ravi Dutt asked him not to do so. Upon this Ct. Sanjay cut the
signatures made by him in the name of HC Brahmjeet and took the
processes to the Reader of SHO who also refused to receive the
processes. The process server went to duty officer who also refused
to take the processes.
The process server went to SHO Insp. Devender Kumar and told
him all the facts. The said SHO kept the processes and abused the
process server badly. SHO asked process server to stand there
raising his hands and wait till the Havaldar/Head Constable comes.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 3 of 50
For about half an hour process server stood there, raising his hands
as a punishment. He was also made to sit on the floor for about 3-4
hours as punishment. The process server begged SHO to allow him
to go as he had to serve other processes also and told him that, he
would come after serving other processes. The SHO, however, did
not allow the process server to go. At about 4.30 p.m. one head
constable come who took the processes and gave receipt.
From these allegations offence U/s. 106, 341 and 342 IPC are
clearly made out. The conduct of the SHD PS Nand Nagri cannot
be tolerated. This case carrot be taken lightly.
Hence, U/s. 156(3) Cr.P.C., it is ordered that FIR be registered
against SHO P.S. Nangi for the above said offence. The FIR be
registered at PS Nand Negri itself as the offence took place within
the premises of PS Nand Nagri itself. Investigation be conducted by
Officer of the rank of ACP and under direct supervision of Addl. CP
concerned.
Copy of this order be sent to CCP and Addl. CP concerned for
immediate compliance. Put up for status report on 14.12.2023.”(Emphasis supplied)
5. The aforesaid order came to be challenged by the petitioner-herein in the court
of the Sessions Judge, Karkardooma Courts, Delhi by filing Criminal Revision
Application No. 174 of 2013. The revision application came to be rejected vide
order dated 03.12.2013. The order reads thus:
“10. A perusal of the record reveals that the Process Server Mr. Ravi
Dutt Sharma posted at Nazarat Branch, Karkardooma Court, Delhi
has submitted his complaint dated 10/10/13, to Ld. District &
Sessions Judge, Shahdara, Delhi. Ld. District & Sessions Judge,
Shahdara had made an endorsement dated 14/10/13 assigning the
said complaint to Ld. Administrative Civil Judge, Shahdara to deal
with the matter. Shri Neeraj Qaur, Ld. Administrative Civil Judge,
Shahdara District. Karkardooma Court, Delhi, thereafter made aSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 4 of 50
complaint dated 15/10/13 U/s 195 Cr.P.C to the Ld. Chief
Metropolitan Magistrate, Shahdara District, Karkardooma Courts,
Delhi enclosing, the original complaint made by the Process Server.
In the said complaint he had observed that allegations made in the
complaint prima facie constitute offences U/s 186 IPC and U/s 341
IPC.
11. Ld. CMM on receipt of the complaint had issued notice to the
DCP for 29/10/13 vide order dated 17/10/13. On 29/10/13, ACP
Seemapuri had appeared and sought adjournment for filing the
report and the matter was adjourned for 13/11/13. On that day,
further time was sought by ACP and matter was adjourned to
28/11/13. On 28/11/13, report was filed on behalf of Addl. DCP vide
letter No. 179/13 dated 27/11/l3 submitting that inquiry into the
matter was got conducted by ACP Seemapuri wherein fault on the
part of the Inspector Devender Kumar, SHO, PS Nand Nagri was
established. In the impugned order, Ld. Trial Court has reproduced
the contents of the complaint wherein allegations were made
against the SHO concerned and the staff and after considering the
complaint, Ld. Trial court had observed: that from the allegations
made in the complaint offences U/s 186, 341 and 342 IPC are
clearly made out. Therefore, Ld. Trial court has substantially
compiled with the guidelines issued by Hon’ble High Court in
authority: reported as Subhash Manchanda v State & Anr., 2013 II
AD (Delhi) 277 and Subhkaran Luharuka and Shree Ram Mills Ltd.
v State (Govt of NCT of Delhi) and Utility Premises Pvt Ltd. It Is
pertinent to mention here that in the present case, the complainant
is a Process Server posted at Karkardooma Court who had gone to
PS Nand Nagri to serve the summons issued from the court of Shri
Arvind Kumar, Ld. ADJ and warrants-issued from the court-of Shri
Sharad Gupta, Ld. MM but he faced the difficulty in execution of
the process at police station. He has narrated the entire episode in
his complaint which reflects that in VB Room, one person disclosed
his identity as Ct. Sanjay Kumar, who received the processes and
signed as HC Brhamjeet and on protest by the complainant, he
struck off the signatures made by him and took the complainant to
Reader of SHC and then to Duty Officer who both refused to receive
the processes. He was thereafter, produced before the revisionist to
whom facts were disclosed, whereupon he started misbehaving by
remarking whatever has” been done by Ct. Sanjay, Reader and Duty
Special Leave Petition (Crl.) No. 12373 of 2025 Page 5 of 50
Officer was correctly done and that he would, teach complainant
how to do service; that complainant is below a Constable and he
being fourth class employee was nobody to teach them work and
made him to stand up for half an hour with hands up and was made
to sit on floor for 3-4 hours as punishment. He also asked his staff
to bring DD register and remarked that complainant should be
confined (band karo) and then he would see as to what the Judge of
complainant would do and that he (complainant) should make the
revisionist talk on phone with the Judge then he would see as to
what a Judge can do as Judge is also an officer so is revisionist.
Despite request of complainant to let him go and come back after
executing the court work, complainant was not allowed.
Complainant has placed on record the photocopies of the process
bearing the cuttings allegedly done by the Constable who had put
the signatures of other Head Constable and subsequently the
signatures were struck off. The original or copy of the process was
not delivered to the Process Server but he was provided only
photocopy, thereof. He was allegedly illtreated, wrongly confined,
punished by making him stand hands-up and was also allegedly
asked to sit on the floor for about 3-4 hours, He has made the
complaint against the SHO concerned, the revisionist herein. Under
the circumstances, he could not have been expected to have first
approached the revisionist against whom he had the grievance and
therefore the contention that he could not have made the complaint
directly to the court has no merit.
12. The contention raised by Ld. Counsel for the revisionist that the
complaint U/s 195 Cr.P.C by Ld. ACJ to the court of Ld. CMM could
only be filed subsequent to holding an inquiry U/s 340 Cr.P.C is not
tenable because the question of holding an inquiry U/s 340 Cr.P.C
would arise only when the offence referred to falls in clause (b) of
Sub-section (1) of Section 195 Cr.P.C which appears to have been
committed in or in relation to a proceeding In that court or as the
case may be in respect of a document produced or given in evidence
in a proceeding in that Court. The complainant Process Server Ravi
Dutt Sharma is a public servant and being employee in the court he
was administratively subordinate to Ld. Administrative Civil Judge,
who had made the complaint U/s 195 Cr.P.C and therefore in the
complaint he had formed a view after considering the contents of
the complaint that from the allegations made therein prima facie
Special Leave Petition (Crl.) No. 12373 of 2025 Page 6 of 50
offence U/s 186 IRC and U/s 341 IPC are constituted and therefore
there was no illegality in the complaint. The question of obtaining
sanction against the offender being a police officer, is to be
appreciated at the time of taking cognizance of offence or filing of
chargesheet and contention in this regard is pre-mature at this
juncture.
13. The impugned order has been passed by Ld. CMM, Shahdara
and PS Nand Nagri falls in the territorial jurisdiction of District
Shahdara, Delhi and therefore Ld. Trial Court was competent and
had territorial jurisdiction to pass the impugned order.
14. The contention that Ld. Trial court has completely failed to
appreciate the distinction between Chapters XV and XXVI has no
merit. In authority reported as Baru Ram v State of Haryana 1990
Cr.L.J NOC 153, it was held that if cognizance of offence has not
been taken by the Magistrate U/s 190(1)(a) Cr.P.C on receipt of
complaint, he can direct investigation U/s 156(3) Cr.P.C after
registration of the case. In authority reported as Minu Kumari &
Anr v State of Bihar and Ors (2006) 4 Supreme Court Cases 359,
It was held that the Magistrate is not bound to follow the procedure
laid down in sections 200 and 202 of the Code for taking cognizance
of a case U/s 190(1)(i)(a) Cr.P.C.
15. It cannot be said that -the complaint made by Ld. Administrative
Civil Judge to Ld. CMM U/s 195 Cr.P.C accompanied with the
complaint of Process Server is abuse of court process or of
provisions of law. The contention that allegations made by the
Process Server are improbable and absurd cannot be outrightly
rejected or disbelieved rather the photocopies of the warrant and
summons placed by him on record prima facie support his
allegations. The letter No. 179/13 dated 27/11/13 submitted by Mr.
Rajender Singh Sagar, Additional DCP, N/E District, Delhi also
supports the complainant as it has been reported that in the inquiry
conducted by ACP Seemapuri fault on the part of Inspector
Devender Kumar SHO, PS Nand Nagri was established.
16. There is no doubt that a Magistrate cannot direct investigation
to be conducted by an officer of a particular rank, However, in the
present case the complainant had made the allegations against the
Special Leave Petition (Crl.) No. 12373 of 2025 Page 7 of 50
SHO, PS Nand Nagri, (the revisionist herein) and therefore an order
directing investigation to be conducted by an Officer of the rank of
ACP cannot be said to be illegal because investigation by a superior
officer alone can serve the purpose of inquiry or investigation.
17. In my considered view there appears no illegality, irregularity
or impropriety in the Impugned order. The revision is therefore
dismissed. Copy of order alongwith trial court record be sent to the
Ld. Trial Court. Revision file be consigned to Record Room.”
(Emphasis supplied)
B. IMPUGNED ORDER
6. The aforesaid order passed by the Additional Sessions Judge came to be
challenged before the High Court. The High Court declined to interfere and
rejected the writ petition. The impugned order passed by the High Court reads
thus:
“31. Prima facie; it is established that there was indeed an
obstruction/delay caused by the Police Officials of P.S. Nand Nagri
in execution of the court duties of the Complainant in the service of
the summon/warrants.
32. The first plea of the Petitioner that the Ld. CMM could not be
specifically directed registration of FIR u/s 186/341/342 IPC, 1860
is not tenable for the simple reason that the observations are that
these offences are prima facie made put, but it does not curtail the
investigations to be confined only to these offences. The I.O. is
obligated, to conduct investigations fair and the submit the final
report on the offences if any, are established on the basis of the
investigations.
33. The second ground taken is that direct registration of FIR in
non-cognizable offences u/s 186 IPC, 1860 in the absence of any
complaint by the Court, is in contravention of S.195 Cr.P.C. ThisSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 8 of 50
argument is totally fallacious for the simple reason that firstly, the
complainant/Process Server who is a public servant and as an
employee of the court, is administratively subordinate to the
Learned Administrative Civil Judge, who filed the complaint under
Section 195 of the Cr.P.C. to the Ld. CMM who in turn forwarded it
by endorsing the prima facie commission of the offences and
directing the investigations. Secondly, the alleged misconduct of the
Petitioner, by no stretch of imagination, can be termed as acts in
discharge of his official duties. Thirdly, the Complaint under S.195
Cr.P.C. is required for taking cognizance on the charge sheet; the
issue of obtaining sanction is premature at this stage. Thus, the
Ld.ASJ has rightly observed that there is no illegality in the
complaint and the need for sanction against the accused, a police
officer, should be addressed when taking cognizance or filing the
chargesheet.
34. The Third challenge is to the directions by the Ld. CMM for the
investigations to be conducted by officers of Rank of ACP.
Considering that the complainant has made allegations against the
SHO of PS Nand Nagri, it has been rightly ordered that the
investigation be carried out by an officer of the rank of ACP. Such
directions cannot be held illegal, as only an investigation conducted
by a higher-ranking officer can effectively serve the purpose of a
proper inquiry or investigation.
35. Fourth ground to challenge the Impugned Order was that a
Preliminary Enquiry should have been conducted before directing
registration of an FIR against a government servant. However, the
holding of an inquiry u/s. 340 Cr.P.C. does not arise in the present
case as the Ld. CMM had filed a complaint u/s. 195(1)(a)(i) Cr.P.C.
along with the complaint of the respondent no. 2 for the offence
under s. 186 IPC. The Ld. ASJ has rightly observed that the question
of Preliminary enquiry under s. 340 Cr.P.C. would have arisen only
when the offence referred falls within s. 195(1)(b) Cr.P.C. and does
not pertain to the offence under s.186 IPC.
36. The Fifth contention raised by the Petitioner that the Ld. ASJ
has failed to discuss the Enquiry Report dated 25.11.2013 of ACP,
is completely misplaced as the Ld. ASJ has not only discussed and
referred to the Inquiry report dated 25.11.2013 but has concluded
Special Leave Petition (Crl.) No. 12373 of 2025 Page 9 of 50
that the same clearly establishes the fault of the Petitioner: The
reliance of the Petitioner on this Report self-destructive as the same
clearly highlights the misconduct of the Petitioner who used harsh
words against the process server on being provoked.
37. In light of the foregoing discussion, it is held that there is no
infirmity in the Order dated 28.11.2018 of the Ld. CMM, directing
registration of the FIR against the concerned police officials which
is upheld by the Ld. ASJ vide the Order dated 03.12.2013 and the
same warrant no inference by this Court.
38. The Petition, along with pending application(s) if any, are
hereby dismissed.”
(Emphasis supplied)
7. In such circumstances referred to above, the petitioner is here before this Court
with the present petition.
C. SUBMISSIONS ON BEHALF OF THE PETITIONER
8. Mr. Nikilesh Ramachandran, the learned counsel appearing for the petitioner
vehemently submitted that even if the entire case put up in the FIR is believed
to be true or accepted to be true, none of the ingredients to constitute the offence
punishable under Section 186 of the I.P.C. could be said to be disclosed. In other
words, the counsel contends that the whole of the complaint even if taken to be
true does not reveal the commission of any offence by the petitioner-herein. He
would submit that the contents of the complaint even if read together as true
would not attract Section 186 of the I.P.C. far from Section 341 of the I.P.C.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 10 of 50
According to the learned counsel for the petitioner, mere obstruction is not
enough unless it is accompanied by use of some criminal force.
9. The learned counsel vehemently submitted that no order could have been passed
in exercise of powers under Section 156(3) of the Cr.P.C. for the registration of
an offence under Section 186 of the I.P.C. as the same is encompassed within
Section 195(1)(a) of the Cr.P.C. and cognizance of the offence punishable under
Section 186 of the I.P.C. can only be taken upon a complaint as defined under
Section 2(d) of the Cr.P.C.
10. In such circumstances referred to above, it was prayed that there being merit in
this petition, the same may be allowed and the First Information Report be
quashed.
D. ANALYSIS
11. We could have disposed of the present petition by just observing that the
petitioner may avail appropriate legal remedy before an appropriate forum in
accordance with law if at all at the end of the investigation a chargesheet is filed.
However, there is one issue which needs a little clarification at our end.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 11 of 50
12. It is not in dispute that the Administrative Civil Judge upon instructions from the
District and Sessions Judge, Shahdara lodged a private complaint in the court of
the Chief Metropolitan Magistrate, Karkardooma Courts, Delhi. This was in tune
with the procedure prescribed under Section 195(1)(a) of the Cr.P.C. that it is
either the public servant concerned or some other public servant to whom he is
administratively subordinate, who would be allowed to file a complaint in
writing. To the extent of filing a private complaint everything proceeded in
accordance with law. However, the Chief Metropolitan Magistrate should have
straightaway taken cognizance upon the said complaint and issued process to the
petitioner-herein. Asking the police to investigate the complaint under Section
156(3) of the Cr.P.C. was a very serious error that the Chief Metropolitan
Magistrate could be said to have committed. What was the need to involve the
police in a complaint lodged by a Civil Judge for the offence punishable under
Sections 186 and 341 respectively of the I.P.C.?
13. If an accused person, in situations such as the present, obstructs a public servant
in the discharge of his public function, the accused person commits two offences.
One offence committed by him is the alleged obstruction which comes within
Section 186 I.P.C. and the other offence committed by him is the offence of
having been guilty of undermining the authority of the court. In our view,
Special Leave Petition (Crl.) No. 12373 of 2025 Page 12 of 50
therefore, if an accused is alleged to have committed an offence within Section
186, he would seem to have committed also an offence of contempt of court.
14. In the facts of the present case, the right thing to do for the Chief Metropolitan
Magistrate should have been to take cognizance and issue process under Section
204 of the Cr.P.C. In the present case, there is no other serious offence or any
offence figuring under Section 195(1)(b)(ii) of the Cr.P.C. that perhaps would
have required the assistance of the police. In the case in hand, the dignity of the
court was at stake. There is lot of sanctity attached to a complaint lodged by none
other than a civil judge. In a complaint lodged by a public servant, even
verification of the contents of the complaint on oath is not required. In such
circumstances, we do not approve of the order of police investigation under
Section 156(3) of the Cr.P.C.
15. It would be argued that as the FIR was registered for non-cognizable offences;
Section(s) 186 and 341 of the I.P.C., respectively, and even if Section 341 of the
I.P.C. is to be treated as a distinct offence being not covered under Section 195
of the Cr.P.C., the police report if at all filed in future, insofar as the offence
under Section 186 of the I.P.C. is concerned, may be treated as a “complaint” in
Special Leave Petition (Crl.) No. 12373 of 2025 Page 13 of 50
view of the explanation to Section 2(d) of the Cr.P.C. Section 2(d) Cr.P.C. reads
as follows:
“(d) “complaint” means 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.
Explanation.—A report made by a police officer in a case which
discloses, after investigation, the commission of a non-cognizable
offence shall be deemed to be a complaint; and the police officer by
whom such report is made shall be deemed to be the complainant;”(Emphasis supplied)
16. As per the explanation appended to the definition clause, a police report
disclosing a non-cognizable offence (Sections 186 and 341 I.P.C. respectively in
the present case) shall be deemed to be a complaint and the police offer shall be
deemed to be the complainant. Even then, the legal embargo under Section 195
Cr.P.C., so far as Section 186 of the I.P.C. is concerned is not dispelled as the
legal fiction deems the police officer and not the aggrieved public servant as the
complainant. [See: Umashankar Yadav and Another v. State of U.P., 2025 SCC
OnLine SC 1066]
17. 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
Special Leave Petition (Crl.) No. 12373 of 2025 Page 14 of 50
done so at the right time and in the right manner, it has been now twelve years
that this litigation is still pending.
18. 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. 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.
i. Section 186 of the I.P.C.
19. Before proceeding further to discuss as to whether mere obstruction itself would
be enough or the act of obstruction is to be accompanied by use of some criminal
force, it may be necessary to notice one particular allegation made against the
petitioner herein in the complaint. In the complaint the allegations are:
“one warrant issued by the court of Shri Sharad Gupta, Ld. MM and
one summons issued by the court of Shri Arvind Kumar, Ld. AD)
were assigned to him to be served to SHO PS Nand Nagri. On
3.10.2013 he reached PS Nand Nagri at about 12.30 P.M. One Ct
Sanjay Kumar Sharma was present in the room of 5-8. The said
constable received the processes but signed as HC Brahmjeet.
Process Server Ravi Dutt asked him not to do so. Upon this Ct.
Sanjay cut the signatures made by him in the name of HC Brahmjeet
and took the processes to the Reader of SHO who also refused to
receive the processes. The process server went to duty officer who
also refused to take the processes.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 15 of 50
The process server went to SHO Insp. Devender Kumar and told
him all the facts. The said SHO kept the processes and abused the
process server badly. SHO asked process server to stand there
raising his hands and wait till the Havaldar/Head Constable comes.
For about half an hour process server stood there, raising his hands
as a punishment. He was also made to sit on the floor for about 3-4
hours as punishment. The process server begged SHO to allow him
to go as he had to serve other processes also and told him that, he
would come after serving other processes. The SHO, however, did
not allow the process server to go. At about 4.30 p.m. one head
constable come who took the processes and gave receipt.”
20. In Nishi Kanta Pal v. Emperor reported in AIR 1917 Calcutta 180, the accused
who were not parties to a suit in which a public right of way was claimed, did
not allow a Munsif, in whose Court the suit was pending, to pass in a boat
through a ditch which was their private property, when the Munsif wanted to
pass through it for the purpose of making a local inspection in connection with
the suit. The Calcutta High Court held that the accused did not commit any
offence under Section 186 of the I.P.C. The Court took the view that there was
no right of way as such and to pass through it for the purpose of making a local
inspection and therefore, the accused are right in obstructing the Munsif from
passing through their lands.
21. In Jaswant Singh v. King Emperor reported in AIR 1925 Lahore 139, the
Lahore High Court held that the use of the word voluntarily in Section 186 of
Special Leave Petition (Crl.) No. 12373 of 2025 Page 16 of 50
I.P.C. indicates that the Legislature contemplated the commission of some overt
act of obstruction, and did not intend to render penal mere passive conduct. The
Allahabad High Court in Phudki v. State reported in AIR 1955 All. 104, held
that the word obstruction in Section 186 connotes some overt act in the nature
of violence or show of violence. It cannot be said that a man obstructed another
if that man runs away from arrest or if he does not actually submit to the arrest.
The Patna High Court in Janki Prasad Tibrewal v. The State of Bihar reported
in 1975 Crl. L.J. 575 (Patna) while construing the expression ‘obstruct’ used in
Section 186 observed that the expression obstruct envisages actual resistance
and obstacle in the way of public servant and it implies the use of criminal force.
However, the Patna High Court in Diljam Sahu v. Emperor reported in AIR
1937 Patna 633 observed that sufficient indication that any attempt to effect
attachment by a public servant having warrant of attachment would be resisted
by force is quite enough to constitute obstruction within the meaning of Section
186 of the Act. Mere resistance of warrant of attachment by a public servant
would be an offence punishable under Section 186 of I.P.C.
22. The Bombay High Court in Emperor v. Sideman Abba reported in AIR 1935
Bom. 24 also took the similar view that mere obstruction or prevention of
discharge of duties may be enough to constitute an offence under Section 186 of
Special Leave Petition (Crl.) No. 12373 of 2025 Page 17 of 50
the I.P.C. A Division Bench of Bombay High Court in State v. Babulal
Gaurishanker Misar reported in AIR 1957 Bombay 10 held that to constitute
‘obstruction’ within Section 186 of the I.P.C., it is not necessary that there should
be actual criminal force. It is sufficient if there is either a show of force or threat
or any act preventing the execution of the process of the civil Court. It was held
by the Court that if an accused obstructs a public servant in the discharge of his
public function (execution of a warrant of possession) he commits two offences.
One offence committed by him is the alleged obstruction which comes within
Section 186 and the other offence committed by him is the offence of having
been guilty of undermining the authority of the Court.
23. “Obstructing” the police is not confined to physical obstruction. [See:
Sykes v. Director of Public Prosecutions, 1962 A.C. 528]
24. 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.
25. In Santosh Kumar Jain v. The State reported in 1951 SCC 190, the General
Manager of the Jagdishpur Zamindary Co. who were the lessees of a sugar
Special Leave Petition (Crl.) No. 12373 of 2025 Page 18 of 50
factory, was prosecuted for obstructing the District Magistrate and the Special
Officer of Rationing, Patna, in the discharge of their official functions when they
went to the factory on 06.12.1947 to remove, 5,000 maunds of sugar which had
been seized out of the stock held by the Company pursuant to an order of the
Government of Bihar dated 05.12.1947. The named officers went to the Factory
on 06.12.1947 to carry out the order of the Government. The Officers were told
by the accused General Manager that he would do everything possible to obstruct
the removal of the sugar and accordingly it was found that the sugar godowns
had been locked and the road leading to them blocked by heaps of coal, firewood
and tins placed across, so as to make vehicular traffic impossible. As a result of
such obstruction, the officers had to seek the aid of armed police to break open
the locks, repair the railway line and clear the road block before the sugar could
be removed from the factory. The main defense of the accused was that on a
proper construction of Section 3 of the Essential Supplies (Temporary powers)
Act, 1946 it was not competent for the Government to pass the order dated
05.12.1947, which was consequently illegal and void and that obstruction to the
execution of that order could not constitute an offence under Section 186 I.P.C.
The contention was rejected by the Court below and the accused was convicted
and sentenced to imprisonment for a term of three weeks under Section 186 of
I.P.C. The Patna High Court confirmed the conviction and the sentence. The
Special Leave Petition (Crl.) No. 12373 of 2025 Page 19 of 50
revision came up before this Court. This Court observed that the seizure of the
Company’s sugar must therefore be regarded as duly authorized and lawful and
the accused by obstructing its removal committed an offence under Section 186
of I.P.C.
26. In Collector of Customs and Central Excise v. Paradip Port Trust reported in
(1990) 4 SCC 250, this Court while construing the expression obstruction’ used
in Section 133 of the Customs Act, 1962 observed that:
“On the authority of Hinchliffe v. Sheldon [(1955) 1 WLR 1207],
it can be said that obstruction is not confined to physical
obstruction and it includes anything which makes it more difficult
for the police or public servant to carry out their duties.”(Emphasis supplied)
27. It may be necessary to have a look at Section 133 of the Customs Act, 1962
which is analogous to Section 186 of the I.P.C. Section 133 reads thus: –
“133. Obstruction of officer of customs. —
If any person intentionally obstructs any officer of customs in the
exercise of any powers conferred under this Act, such person shall
be punishable with imprisonment for a term which may extend to
six months, or with fine, or with both.”
28. Now let us compare Section 133 of the Customs Act, 1962 with Section 186 of
the I.P.C. Section 186 of I.P.C. reads:
“186. Obstructing public servant in discharge of public
functions.—Special Leave Petition (Crl.) No. 12373 of 2025 Page 20 of 50
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 extent to three months, or
with fine which may extend to five hundred rupees, or with both”.
29. Under Section 186, the expression “whoever voluntarily obstructs any public
servant in the discharge of his public functions” is used and whereas in Section
133 of the Customs Act, 1962 the expression “if any person intentionally
obstructs any officer of customs” is used. In our considered opinion, the
expression ‘intentionally’ used in Section 133 of the Customs Act and the
expression ‘voluntarily’ used in Section 186 of I.P.C. connote the same meaning.
The decision of this Court in Collector of Customs (supra) concludes and
decides the issue. Therefore, we hold that the expression ‘obstruction’ used in
Section 186 of the I.P.C. is not confined to physical obstruction. 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.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 21 of 50
30. We have already noticed the averments made in the complaint against the
petitioner herein and others. Their acts prima facie, in our considered opinion,
amount to obstructing the public servant in the discharge of their public
functions. Therefore, the complaint itself, in our considered opinion does not
suffer from any legal infirmity.
31. It is entirely a different matter altogether that the allegations levelled against the
petitioner may be true or not. The same has to be enquired into by the trial court,
in accordance with law, uninfluenced by the observations relating to the acts
themselves, as this Court has not expressed any opinion whatsoever on the merits
of the case. But if the allegations are true and established as is required in law,
they would certainly constitute an offence punishable under Section 186 of the
I.P.C.
32. The aforesaid is one view of the matter. The courts should be mindful of the
position of law that we have explained as aforesaid.
33. We now proceed to consider the matter from a different angle with a view to
decide whether we should interfere with the impugned judgment passed by the
High Court or not.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 22 of 50
ii. Section 195 of the Cr.P.C.
34. Section 195 of the Cr.P.C. reads thus:
“195. Prosecution for contempt of lawful authority of public servant,
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, 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;
(b) (i) of any offence punishable under any of the following sections
of the Indian Penal Code, namely, sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when
such offence is alleged to have been committed in, or in relation
to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said Code, when
such offence is alleged to have been committed in respect of a
document produced or given in evidence in a proceeding in any
Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit,
or the abetment of, any offence specified in sub-clause (i) or
sub-clause (ii),
Special Leave Petition (Crl.) No. 12373 of 2025 Page 23 of 50
except on the complaint in writing of that Court or by such officer
of the Court as that Court may authorise in writing in this behalf, or of
some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause
(a) of sub-section (1) any authority to which he is administratively
subordinate may order the withdrawal of the complaint and send a
copy of such order to the Court; and upon its receipt by the Court,
no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded.
(3) In clause (b) of sub-section (1), the term “Court” means a Civil,
Revenue or Criminal Court, and includes a tribunal constituted by
or under a Central, Provincial or State Act if declared by that Act
to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily
lie from the appealable decrees or sentences of such former Court,
or in the case of a Civil Court from whose decrees no appeal
ordinarily lies to the principal Court having ordinary original civil
jurisdiction within whose local jurisdiction such Civil Court is
situate:
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court
of inferior jurisdiction shall be the Court to which such Court
shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such
Court shall be deemed to be subordinate to the Civil or Revenue
Court according to the nature of the case or proceeding in
connection with which the offence is alleged to have been
committed.”Special Leave Petition (Crl.) No. 12373 of 2025 Page 24 of 50
35. As a general rule, any person, having knowledge of commission of an offence
may set the law in motion by a complaint, even though he is not personally
interested or affected by the offence. There are exceptions to this general rule, as
evident from Sections 195 and 196 respectively of the Cr.P.C. Section 195 is one
of those sections, which prohibits a court from taking cognizance of certain
offences unless and until a complaint has been made by some particular authority
or person. The other sections, with similar prescriptions, are sections 196 to 199
of the Cr.P.C. respectively. Section 195 of the Cr.P.C. has been enacted as a
safeguard against the irresponsible and reckless prosecutions by the private
individuals in respect of the offences, which relate to the administration of justice
and contempt of lawful authority.
36. It is true that Section 195 of the Cr.P.C. does not bar the trial of an accused for a
distinct offence disclosed by the same set of facts and is not so stated therein.
Section 195 also does not provide further that if in the course of the commission
of that offence, other distinct offences are committed, the court concerned is
debarred from taking cognizance in respect of those offences as well. However,
having said so, if the perusal of the first information report makes it clear that
the offence under Section 186 of the I.P.C. is closely interconnected with another
distinct offence(s), which in this case is Section 341 of the I.P.C. and it cannot
Special Leave Petition (Crl.) No. 12373 of 2025 Page 25 of 50
be split up, then in such circumstances, the bar of Section 195 of the Cr.P.C. will
apply to such other distinct offence also.
37. In the aforesaid context, we may refer to the following decisions of this Court;
(i) In the case of State of U.P. v. Suresh Chandra Srivastava & Ors., reported
in AIR 1984 SC 1108 a three-judge bench very succinctly explained the
provisions of Section 195 of the Cr.P.C. and stated that if the other distinct
offences form an integral part of the offences as enumerated under Section
195 Cr.P.C so as to fall under the same transaction, then those distinct
offences would also be covered under the ambit of Section 195 Cr.P.C.
The relevant observations are as under: –
“6. In these circumstances, therefore, it is not necessary for
us to go into the broader question as to whether if offences
under Sections 467, 471 and 120-B IPC are committed, the
complaint could proceed or not. The law is now well settled
that where an accused commits some offences which are
separate and distinct from those contained in section 195,
section 195 will affect only the offences mentioned therein
unless such offences form an integral part 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 sec. 195 of the Code.”(Emphasis supplied)
(ii) In the case of State of Karnataka vs. Hemareddy & Anr. reported in
AIR 1981 SC 1417, this Court held that in the cases where in the
course of the same transaction, an offence, for which, no complaint by a
Special Leave Petition (Crl.) No. 12373 of 2025 Page 26 of 50
court is necessary under Section 195(1)(b) of the Cr.P.C., and anoffence, for which, a complaint of a Court is necessary under that
sub-section, are committed, it is not possible to split up and hold that
the prosecution of the accused for the offences not mentioned in Section
195(1)(b), Cr.P.C. should be upheld. We may quote the observation as
contained in para 8. The same reads as under: –
“8. We agree with the view expressed by the learned Judge
and hold that in cases where in the course of the same
transaction an offence for which no complaint by a court is
necessary under s. 195(1)(b) of the Code of Criminal
Procedure and an offence for which a complaint of a court is
necessary under that sub-section, are committed, it is not
possible to split up and hold that the prosecution of the
accused for the offences not mentioned in s. 195(1)(b) of the
Code of Criminal Procedure should be upheld.”(Emphasis supplied)
(iii) In the case of Saloni Arora vs. State of NCT of Delhi, [ Criminal
Appeal No.64 of 2017], decided on 10.01.2017, this Court explained
the object of Section 195 of the Cr.P.C., observing as under: –
“10. As rightly pointed out by the learned counsel for the
parties on the strength of law laid down by this Court in the
case of Daulat Ram vs. State of Punjab, (AIR 1962 SC 1206)
that in order to prosecute an accused for an offence
punishable under Section 182 IPC, it is mandatory to follow
the procedure prescribed under Section 195 of the Code else
such action is rendered void ab initio.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 27 of 50
11. It is apposite to reproduce the law laid down by this
Court in the case of Daulat Ram (supra) which reads as
under:
There is an absolute bar against the Court taking seisin of the
case under S.182 I.P.C. except in the manner provided by
S.195 Cr.P.C. Section 182 does not require that action must
always be taken if the person who moves the public servant
knows or believes that action would be taken. The offence
under S.182 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 S.182, 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 S.182 without the Tehsildars complaint in
writing is, therefore, without jurisdiction ab initio.
12. It is not in dispute that in this case, the prosecution while
initiating the action against the appellant did not take
recourse to the procedure prescribed under Section 195 of
the Code. It is for this reason, in our considered opinion, the
action taken by the prosecution against the appellant insofar
as it relates to the offence under Section 182 IPC is
concerned, is rendered void ab initio being against the law
laid down in the case of Daulat Ram (supra) quoted
above.”(Emphasis supplied)
38. Thus, what is discernible from the decisions referred to above is that if in truth
and substance, an offence falls in the category of Section 195, it is not open to
Special Leave Petition (Crl.) No. 12373 of 2025 Page 28 of 50
the court to undertake the exercise of splitting them up and proceeding furtheragainst the accused for the other distinct offences. This would depend on the
facts of each case. However it cannot be laid as a straitjacket formula that the
Court cannot undertake the exercise of splitting up. It would depend upon the
nature of the allegations and the materials on record.
39. In Basir-ul-huq and others v. State of West Bengal reported in (1953) 1 SCC
637, a three-judge bench of this Court held that the magistrate would not be
debarred from taking cognizance of the distinct offences not falling within the
ambit of Section 195(1)(a), thereby, effectively stating that the offences falling
under Section 195(1)(a) and those not falling under Section 195(1)(a) can be
split up. Therein, one of the appellants had lodged an information at the police
station that one D had beaten and throttled his mother to death. While the funeral
pyre was in flames, the appellants therein along with the police arrived at the
cremation ground, extinguished the fire and sent the body of the deceased for
post-mortem examination. However, no injury was found on the body of the
deceased. Upon investigation, the sub-inspector reached the conclusion that a
false complaint had been made against D. Therefore, an offence under Section
182 I.P.C. was made out. However, D had separately instituted a complaint
against the appellants and they stood convicted for having committed the offence
Special Leave Petition (Crl.) No. 12373 of 2025 Page 29 of 50
under Sections 297 and 500 of the I.P.C. respectively. It was in such acircumstance that this Court stated that the Magistrate could take cognizance of
the distinct offences i.e., Sections 297 and 500 of the I.P.C. respectively despite
the facts also disclosing the commission of an offence under Section 182 I.P.C.
for which a complaint by the proper authority under Section 195 Cr.P.C would
be a pre-requisite. Opining so, it was observed as follows:
“12. Section 195 CrPC, on which the question raised is grounded,
provides, inter alia, that no court shall take cognizance of an
offence punishable under Sections 172 to 188IPC, except on the
complaint in writing of the public servant concerned, or some other
public servant to whom he is subordinate. The statute thus requires
that without a complaint in writing of the public servant concerned
no prosecution for an offence under Section 182 can be taken
cognizance of. It does not further provide that if in the course of the
commission of that offence other distinct offences are committed,
the Magistrate is debarred from taking cognizance in respect of
those offences as well. The allegations made in a complaint may
have a double aspect, that is, on the one hand these may constitute
an offence against the authority of the public servant or public
justice, and on the other hand, they may also constitute the offence
of defamation or some other distinct offence. The section does not
per se bar the cognizance by the Magistrate of that offence, even if
no action is taken by the public servant to whom the false report has
been made. It was however argued that if on the same facts an
offence of which no cognizance can be taken under the provisions
of Section 195 is disclosed and the same facts disclose another
offence as well which is outside the purview of the section and
prosecution for that other offence is taken cognizance of without the
requirements of Section 195 having been fulfilled, then the
provisions of that section would become nugatory and if such a
course was permitted those provisions will stand defeated. It was
further said that it is not permissible for the prosecution to ignore
the provisions of this section by describing the offence as being
punishable under some other section of the Penal Code.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 30 of 50
13. In our judgment, the contention raised by the learned counsel
for the appellants is without any substance so far as the present case
is concerned. The charge for the offence under Section 297IPC,
could in no circumstance, as pointed out by the High Court, be
described as falling within the purview of Section 195 CrPC. The
act of trespass was alleged to have been committed subsequent to
the making of the false report and all the ingredients of the offence
that have been held to have been established on the evidence
concern the conduct of the appellants during the post-report period.
In these circumstances, no serious contention could be raised that
the provisions of Section 195 would stand defeated by the
Magistrate having taken cognizance of the offence under that
section.
14. As regards the charge under Section 500IPC, it seems fairly
clear both on principle and authority that where the allegations
made in a false report disclose two distinct offences, one against the
public servant and the other against a private individual, that other
is not debarred by the provisions of Section 195 from seeking
redress for the offence committed against him. Section 499IPC,
which mentions the ingredients of the offence of defamation gives
within defined limits immunity to persons making depositions in
court, but it is now well settled that that immunity is a qualified one
and is not absolute as it is in English law. Under Section 198CrPC,
1898, a complaint in respect of an offence under Section 499IPC,
can only be initiated at the instance of the person defamed, in like
manner as cognizance for an offence under Section 182 cannot be
taken except at the complaint of the public servant concerned. In
view of these provisions there does not seem in principle any
warrant for the proposition that a complaint under Section 499 in
such a situation cannot be taken cognizance of unless two persons
join in making it i.e. it can only be considered if both the public
servant and the person defamed join in making it, otherwise the
person defamed is without any redress. The statute has prescribed
distinct procedure for the making of the complaints under these two
provisions of the Penal Code and when the prescribed procedure
has been followed, the court is bound to take cognizance of the
offence complained of.”
(Emphasis supplied)
Special Leave Petition (Crl.) No. 12373 of 2025 Page 31 of 50
40. In Durgacharan Naik and Others v. State of Orissa reported in AIR 1966 SC 1775,
a process server had to execute a writ of attachment against the judgment-debtors,
however, there was some resistance when he reached their village. After the arrival
of police, the judgment-debtors paid the decretal dues to the process server.
However, when the process server and the police were leaving the village and were
crossing a nearby river in a boat, the appellant along with 10-12 persons threatened
to assault them if their money were not returned. The situation had de-escalated upon
the intervention of some outsiders and subsequently, on the next morning, the ASI
lodged an FIR against the appellants. While the trial court had acquitted the
appellants, the High Court set aside the order of acquittal and convicted them for the
offence under Section 353 I.P.C. As regards the charge under Section 186 I.P.C., the
High Court observed that the prosecution was barred under Section 195 Cr.P.C.
Finding no infirmity in the judgment of the High Court and allowing the offences to
be split up, this Court observed as follows:
“5. We pass on to consider the next contention of the appellants that
the conviction of the appellants under Section 353 of the Indian Penal
Code is illegal because there is a contravention of Section 195(1) of
the Criminal Procedure Code which requires a complaint in writing by
the process server or the ASI It was submitted that the charge under
Section 353 of the Indian Penal Code is based upon the same facts as
the charge under Section 186 of the Indian Penal Code and no
cognizance could be taken of the offence under Section 186 of the
Indian Penal Code unless there was a complaint in writing as required
by Section 195(1) of the Criminal Procedure Code. It was argued that
the conviction under Section 353 of the Indian Penal Code is
tantamount, in the circumstances of this case, to a circumvention of theSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 32 of 50
requirement of Section 195(1) of the Criminal Procedure Code and the
conviction of the appellants under Section 353 of the Indian Penal
Code by the High Court was, therefore, vitiated in law. We are unable
to accept this argument as correct. It is true that most of the allegations
in this case upon which the charge under Section 353 of the Indian
Penal Code is based are the same as those constituting the charge
under Section 186 of the Indian Penal Code but it cannot be ignored
that Sections 186 and 353 of the Indian Penal Code relate to two
distinct offences and while the offence under the latter section is a
cognizable offence, the one under the former section is not so. The
ingredients of the two offences are also distinct. Section 186 of the
Indian Penal Code is applicable to a case where the accused
voluntarily obstructs a public servant in the discharge of his public
functions but under Section 353 of the Indian Penal Code the
ingredient of assault or use of criminal force while the public servant
is doing his duty as such is necessary. The quality of the two offences
is also different. Section 186 occurs in Chapter X of the Indian Penal
Code dealing with contempts of the lawful authority of public servants,
while Section 353 occurs in Chapter XVI regarding the offences
affecting the human body. It is well established that Section 195 of the
Criminal Procedure Code does not bar the trial of an accused person
for a distinct offence disclosed by the same set of facts but which is not
within the ambit of that section. […]
6. In the present case, therefore, we are of the opinion that Section 195
of the Criminal Procedure Code does not bar the trial of the appellants
for the distinct offence under Section 353 of the Indian Penal Code,
though it is practically based on the same facts as for the prosecution
under Section 186 of the Indian Penal Code.”(Emphasis supplied)
41. While deciding whether the distinct offences can be split up, courts must remain
circumspect. It is agreed that, the law is not that once the facts of a given case
disclose an offence falling within the scope of Section 195 Cr.P.C. and also other
offences, prosecution can be launched regarding the latter only upon the
Special Leave Petition (Crl.) No. 12373 of 2025 Page 33 of 50
complaint of the court or the lawfully authority concerned. To hold otherwise
would be to extend the scope of Section 195 Cr.P.C. to regions and horizons not
contemplated by the legislature. The facts in a case may give rise to distinct
offences including offences against the authority of public servants or against
public justice, as also offences against private individuals; the bar under Section
195 of the Cr.P.C. cannot, in such circumstances, affect the offences other than
those against public authority or public justice. Prosecution for such other
offences does not require the instrumentality of the public authority or court.
However, the position may be different when during the course of the same
transaction offences falling within the two categories are committed. In such
cases, it may not be possible to split up the transaction, and to hold that there can
be valid prosecution for offences not mentioned in Section 195 of the Cr.P.C.,
without the written complaint of the public authority or the court, as the case
may be. Courts must be able to see through any attempt to render Section 195 of
the Cr.P.C. nugatory by hiding the real nature of the transaction by verbal
jugglery. If in principle and substance the offence alleged falls within the
categories mentioned in Section 195, the operation of the bar cannot be avoided;
if in essence the alleged offence falls outside the categories, the bar would not
operate. At the same time, if the facts give rise to distinct offences, some
Special Leave Petition (Crl.) No. 12373 of 2025 Page 34 of 50
attracting the operation of Section 195 and others not so, the bar can operate only
regarding the former and not regarding the latter.
42. Therefore, the courts must ascertain whether during the course of a single
transaction, the offences falling within both the categories are committed, in
which case it would be difficult to split up the offences or, whether there are two
different transactions which occur successively, nevertheless separately and
distinctively, in which case the offences may be split up. One another aspect that
may be looked into is whether, apart from the offences committed in contempt
of lawful authority of public servants, or against public justice or, relating to
documents given in evidence which fall under the scope of Section 195 Cr.P.C.,
the other distinct offences are of such a nature that private individuals are
aggrieved. In such a scenario, it would not be reasonable to bar a private
prosecution by the aggrieved individual for the reason that the public official or
the court concerned has also not instituted a complaint.
43. Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of the
offence punishable under Section 186 I.P.C., unless there is a written complaint
by the public servant for voluntarily obstructing him from discharge of his public
functions. The object of this provision is to provide for a particular procedure
Special Leave Petition (Crl.) No. 12373 of 2025 Page 35 of 50
in a case of voluntarily obstructing a public servant from discharging his public
functions. The court lacks competence to automatically take cognizance in
certain types of offences enumerated therein. The legislative intent behind such
a provision has been that an individual should not face criminal prosecution
instituted upon insufficient grounds by persons actuated by malice, ill-will or
frivolity of disposition and also to save the time of the criminal courts being
wasted by endless prosecutions. This provision has been carved out as an
exception to the general rule contained under Section 190 Cr.P.C. that any person
can set the law in motion by making a complaint, as it prohibits the court from
taking cognizance of certain offences until and unless a complaint has been
made by some particular authority or person. Other provisions in the Cr.P.C.
like sections 196 and 198 respectively do not lay down any rule of procedure,
rather, they only create a bar that unless some requirements are complied with,
the court shall not take cognizance of an offence described in those Sections.
[See: Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai
Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors v.
Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998)
2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352;
Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC
2119]
Special Leave Petition (Crl.) No. 12373 of 2025 Page 36 of 50
44. The test of whether there is evasion or non-compliance of Section 195
Cr.P.C. or not, is whether the facts disclose primarily and essentially an offence
for which a complaint of the court or of a public servant is required. In
Basir-ul-Haq & Ors. (supra) and Durgacharan Naik & Ors. (supra), this Court
cautioned that the provisions of this Section cannot be evaded by describing the
offence as one being punishable under some other sections of I.P.C., though
in truth and substance, the offence falls in a category mentioned in Section 195
Cr.P.C. Thus, cognizance of such an offence cannot be taken by mis-describing
it or by putting a wrong label on it.
45. In M.S. Ahlawat v. State of Haryana & Anr. reported in AIR 2000 SC 168, this
Court considered the matter at length and held as under: –
“[…] Provisions of Section 195 Cr.P.C. are mandatory and no court
has jurisdiction to take cognizance of any of the offences mentioned
therein unless there is a complaint in writing as required under that
section.”
(Emphasis supplied)
46. In Sachida Nand Singh & Anr. v. State of Bihar & Anr. reported in (1998)
2 SCC 493, this Court while dealing with this issue observed as under: –
“7. Section 190 of the Code empowers “any magistrate of the first
class” to take cognizance of “any offence” upon receiving a
complaint, or police report or information or upon his own
knowledge. Section 195 restricts such general powers of the
magistrate, and the general right of a person to move the court with
a complaint to that extent curtailed. It is a well- recognised canonSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 37 of 50
of interpretation that provision curbing the general jurisdiction of
the court must normally receive strict interpretation unless the
statute or the context requires otherwise.”
(Emphasis supplied)
47. In Daulat Ram v. State of Punjab reported in AIR 1962 SC 1206, this Court
considered the nature of the provisions of Section 195 of the Cr.P.C. In the said
case, cognizance had been taken on the police report by the Magistrate and the
appellant therein had been tried and convicted, though the concerned public
servant i.e., the Tahsildar, had not filed any complaint. This Court held as
follows: –
“The cognizance of the case was therefore wrongly assumed by the
court without the complaint in writing of the public servant,
namely, the Tahsildar in this case. The trial was thus without
jurisdiction ab initio and the conviction cannot be maintained.
The appeal is, therefore, allowed and the conviction of the
appellant and the sentence passed on him are set aside.”
(Emphasis supplied)
48. Thus, in view of the above, 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
Special Leave Petition (Crl.) No. 12373 of 2025 Page 38 of 50
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.
49. The learned counsel appearing on behalf of the petitioner would submit that the bar
of Section 195 of the Cr.P.C., so far as the offence punishable under Section 186 of
the I.P.C. is concerned, is absolutely unlike Section 195 (1)(b) of the Cr.P.C. In other
words, Section 195(1)(b) would apply provided certain conditions are fulfilled, and
if those conditions are not applicable, then it is open for the police to carry out the
investigation after registering an F.I.R.
50. The heading of Chapter XIV of the Code of Criminal Procedure is “Conditions
Requisite for Initiation of Proceedings”. The first provision in this Chapter is Section
190 and it deals with the power of the Magistrate to take cognizance of the offences.
There are some other provisions in this Chapter which create an embargo on the
power of the Court to take cognizance of offences committed by persons enumerated
therein except on the complaint in writing of certain specified persons or with the
previous sanction of certain specified authorities.
51. A plain reading of Section 195 of the Cr.P.C. would indicate that no Court can take
cognizance of an offence punishable under Section 186 of the I.P.C., except upon a
complaint in writing of the public servant concerned or of some other public servant
Special Leave Petition (Crl.) No. 12373 of 2025 Page 39 of 50
to whom he is administratively subordinate. The opening words of the Section are
“No Court shall take cognizance”, and consequently, the bar created by the
provisions is against taking of cognizance by the Court. There is no bar
against the registration of a criminal case or investigation by the police agency
or submission of a report by the police on completion of the investigation, as
contemplated by Section 173 of the Cr.P.C.
52. This Court in Iqbal Singh Marwah v. Meenakshi Marwah reported in AIR 2005
SC 2119, while interpreting Section 195 Cr.P.C. has held as follows: –
“9. […] This being the scheme of two provisions or clauses of
Section 195, viz., that the offence should be such which has direct
bearing or affects the functioning or discharge of lawful duties of a
public servant or has a direct correlation with the proceedings in a
court of justice, the expression “when such offence is alleged to have
been committed in respect of a document produced or given in
evidence in a proceeding in a Court” occurring in clause (b)(ii)
should normally mean commission of such an offence after the
document has actually been produced or given in evidence in the
Court. The situation or contingency where an offence as
enumerated in this clause has already been committed earlier and
later on the document is produced or is given in evidence in Court,
does not appear to be in tune with clauses (a)(i) and (b)(i) and
consequently with the scheme of Section 195 Cr.P.C. This indicates
that clause (b)(ii) contemplates a situation where the offences
enumerated therein are committed with respect to a document
subsequent to its production or giving in evidence in a proceeding
in any Court.”
(Emphasis supplied)Special Leave Petition (Crl.) No. 12373 of 2025 Page 40 of 50
53. This Court, referred to its earlier decision in Sachida Nand Singh (supra),
wherein it had been held that Section 195 Cr.P.C. is invoked where the offences
affected the administration of justice. It is for that reason, that only the concerned
Court can take cognizance, and the procedure under Section 340 Cr.P.C. also
empowers the same Court before whom the offence is committed in respect of
documents produced or given in evidence before that Court. The reason why
the jurisdiction to take cognizance of such an offence is restricted to the
concerned Court is also noted by this Court and the same is culled out from
the previous decision in Patel Lalji Bhai Samabhai (supra). The purpose
underlying Section 195(1)(b) seems to be to control the temptation on the part
of the private parties to start criminal prosecution on frivolous, vexations or
insufficient grounds inspired by a revengeful desire to harass or spite their
opponents. These offences have been selected for the court’s control because of
their direct impact on the judicial process. It is the judicial process or the
administration of public justice which is the direct and immediate object or the
victim of these offences. As the purity of the proceedings of the court is
directly sullied by the crime, the court is considered to be the only party entitled
to consider the desirability of complaining against the guilty party. The private
party who might ultimately suffer can persuade the Civil Court to file the
complaint.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 41 of 50
54. In Iqbal Singh Marwah (supra), this Court took note of the legal position that
in view of the language used in Section 340 of the Cr.P.C., the Court is not
bound to make a complaint regarding commission of an offence referred to
Section 195(1)(b), as the Section is conditioned by the words “court is of
opinion that it is expedient in the interest of justice”. The concerned Court
would file a complaint only if the interest of justice so requires and not in
every case. Even before making the complaint, the Court would hold a
preliminary enquiry and record a finding to the effect that it is expedient in
the interest of justice that enquiry should be made into any of the offences
referred to Section 195(1)(b). This expediency would be judged by the Court
by weighing not the magnitude of injury suffered by the person affected by
such forgery or forged documents, but having regard to the effect or impact
that such commission of offence as upon administration of justice. It is
possible that such forged documents or forgery may cause very serious or
substantial injury to a person, inasmuch as, it may deprive him of very
valuable property or status or the like. If it is held that in a case it would be
the concerned Court alone, which would be entitled to lodge the complaint, it
would render the victim of such forgery or forged documents remediless. This
Court held that any interpretation which leads to such a situation where a victim
of a crime is rendered remediless has to be discarded. This Court also took a
Special Leave Petition (Crl.) No. 12373 of 2025 Page 42 of 50
note of the fact that the holding of a preliminary inquiry under Section 340
of the Cr.P.C. by the concerned Court would normally get unduly delayed.
This important aspect also dissuaded this Court from accepting the broad
interpretation sought to be placed on Section 195(1)(b)(ii) of the Cr.P.C. to the
effect that Section 195 is a bar to private prosecution. This Court held that an
enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the
said provision would also operate where after commission of an act of forgery,
the document is subsequently produced in Court, is capable of great misuse.
After preparing a forged document or committing an act of forgery, a person
may manage to get the proceeding instituted in any civil, criminal or revenue
Court either by himself or someone set up by him, or simply file the document
in the said proceeding. If the broad interpretation to Section 195(1)(b)(ii) is
accepted, he would be protected from prosecution either at the instance of a
private party or the police, until the concerned Court, where the document is
filed, itself chooses to file a complaint. Such an interpretation would be highly
detrimental to the interest of the society at large. This Court also took notice
of the fact that the Courts are generally reluctant in directing filing of a criminal
complaint and such a course is rarely adopted. The Court held that it would not
be fair and appropriate to give an interpretation which leads to a situation where
a person alleged to have committed an offence of the type enumerated in
Special Leave Petition (Crl.) No. 12373 of 2025 Page 43 of 50
Clause (b)(ii) is not placed for trial on account of non-filing of a complaint or
if a complaint is filed, the same does not come to its logical end. Such a
broad interpretation would also lead to impracticable results, which should
be avoided.
55. In State of Punjab v. Raj Singh reported in AIR 1998 SC 768, this Court further
stated that Section 195(1)(b)(ii) of the Cr.P.C. cannot be seen as prohibiting the
entertainment of, and investigation into the offence(s) by the police. The bar
comes into operation only when the Court intends to take cognizance of the
offence under Section 190 Cr.P.C. In other words, the statutory power of the
police to investigate under the Cr.P.C. is not in any way controlled or
circumscribed by Section 195 Cr.P.C. The legal position was elaborated in the
following words: –
“2. We are unable to sustain the impugned order of the High Court
quashing the F.I.R. Lodged against the respondents alleging
commission of offences under Sections 419, 420, 467 and 468 I.P.C.
by them in course of the proceeding of a civil suit, on the ground
that Section 195(1)(b)(ii) Cr.P.C. prohibited entertainment of and
investigation into the same by the police. From a plain reading of
Section 195 Cr.P.C. it is manifest that it comes into operation at the
stage when the Court intends to take cognizance of an offence
under Section 190(1) Cr. P.C.; and it has nothing to do with the
statutory power of the police to investigate into an F.I.R. which
discloses a cognizable offence, in accordance with Chapter XII of
the Code even if the offence is alleged to have been committed in,
or in relation to, any proceeding in Court. In other words, the
statutory power of the Police to investigate under the Code is notSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 44 of 50
in any way controlled or circumscribed by Section 195 Cr.P.C. It is
of course true that upon the charge-sheet (challan), if any, filed on
completion of the investigation into such an offence the Court would
not be competent to take cognizance thereof in view of the embargo
of Section 195(1)(b) Cr. P.C., but nothing therein deters the Court
from filing a complaint for the offence on the basis of the F.I.R. (filed
by the aggrieved private party) and the materials collected during
investigation, provided it forms the requisite opinion and follows
the procedure laid down in section 340 Cr.P.C. […]”(Emphasis supplied)
56. A more elaborate discussion is found in M. Narayandas v. State of Karnataka
reported in AIR 2004 SC 555, wherein this Court has held as follows: –
“8. […] The question whether Sections 195 and 340 of the Criminal
Procedure Code affect the power of the police to investigate into a
cognizable offence has already been considered by this Court in the
case of State of Punjab v. Raj Singh reported in 1998(2) SCC 391
[…] Not only are we bound by this judgment but we are also in
complete agreement with the same. Sections 195 and 340 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 Criminal
Procedure Code is followed. Thus no right of the Respondents,
much less the right to file an appeal under Section 341, is affected.
xxx xxx xxx
10. The law on the point is clear. At the stage of investigation
Section 195 has no application. We are therefore not concerned
with the question whether Section 195 applies to documents
forged/fabricated prior to their being produced in Court. That
question only arises after the Court takes cognizance. At this stageSpecial Leave Petition (Crl.) No. 12373 of 2025 Page 45 of 50
the only question is whether the investigation should be permitted
to proceed or not. As stated above there is no ground or reason on
which the complaint/FIR can be quashed.”(Emphasis supplied)
57. We may note that the decision of the Constitution Bench in Iqbal Singh Marwah
(supra) does not in any way express its disagreement with the view in Raj Singh
(supra) and M. Narayandas (supra). On the contrary, a perusal of Iqbal Singh
Marwah (supra) shows that the Court has leaned in favour of giving an
interpretation, which limits the scope of Section 195 of the Cr.P.C. There is
no contradiction in invocation of Section 156(3) by the learned Magistrate, the
registration of the F.I.R. and the conduct of the investigation by the police, with
Section 195 read with Section 340 Cr.P.C. As noticed in M. Narayandas
(supra) once the investigation is completed, then the embargo under Section 195
would come into play and the Court would not be competent to take cognizance.
However, the concerned Court could then file the complaint for the offence
mentioned in Section 195(1)(b)(ii) on the basis of the F.I.R. and the material
collected during investigation and by following the procedure laid down in
Section 340 Cr.P.C.
58. The procedure contemplated under sub-section (1) of Section 340 of the Cr.P.C.
is limited to such cases, as are provided in clause (b) of sub-section (1) of
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Section 195 of the Cr.P.C. only. Section 340 of the Cr.P.C. does not envisage
a procedure with reference to an offence described in Section 195(1)(a) of the
Cr.P.C. However, the observations made in Raj Singh (supra) and M.
Narayandas (supra), more specifically that Section 195 Cr.P.C does not have any
application at the stage of investigation holds good as regards both Section
195(1)(a) and 195(1)(b) of the Cr.P.C. respectively. The overall bar contemplated
under Section 195 could be said to kick in only at the stage of cognizance.
E. CONCLUSION
59. We may summarize our final conclusion as under:
(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
Special Leave Petition (Crl.) No. 12373 of 2025 Page 47 of 50
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
Special Leave Petition (Crl.) No. 12373 of 2025 Page 48 of 50
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.
(vi) 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.
Special Leave Petition (Crl.) No. 12373 of 2025 Page 49 of 50
60. In view of the aforesaid, we dispose of this petition leaving it open to the
petitioner to raise the contention as regards the bar of Section 195 of the Cr.P.C.
before the trial court if at all, at the end of the investigation, chargesheet is filed
for the offences enumerated above in the FIR.
61. Registry shall circulate one copy each of this judgment to all the High Courts.
……………………………………………. J.
(J.B. PARDIWALA)
……………………………………………. J.
(R. MAHADEVAN)
New Delhi;
20th August, 2025
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