Penal Code, 1860 – s.353 and s.186 – According to the appellant, he is the owner of a hostel used for underprivileged children – Appellant alleges that the officials illegally conducted the raid on 03.06.2015 and sought to transfer the children accommodated in the said hostel to some other location – Appellant also contended that a false allegation was made against him that he, along with his party, had attacked and assaulted the officials while they were conducting the raid – Pursuant to which, an FIR was lodged against the appellant and his wife u/s.353 IPC – Subsequently, on completion of the investigation, charge-sheet was filed alleging commission of offences u/ss.353 and 186 of the IPC – The appellant has sought quashing of the said criminal proceedings: Held: A bare perusal of s.195 (1) of the CrPC clearly indicates that there is a bar on the court to take cognizance of any offence punishable u/ss.172 to 188 (both inclusive) of the IPC except on a complaint in writing made by the concerned public servant to the court – The State has made a feeble attempt to show that there was indeed a complaint filed by the District Probation Officer to the City Magistrate, Varanasi, on 03.06.2015, alleging that the appellants and his party were creating obstructions to the officials – A careful examination of the aforesaid letter, however, would reveal that the said letter in the form of complaint is addressed to the City Magistrate and not to any Judicial Magistrate – A complaint within the meaning and scope of the Criminal Procedure Code would mean such a complaint filed before a Judicial Magistrate and not an Executive Magistrate – The complaint which is required to be filed u/s.195 (1) of the CrPC, can only be before a Judicial Magistrate and not an Executive Magistrate who does not have the power to take cognizance of an offence or try such cases – In the instant case, since the complaint was filed before the City Magistrate and not before a Judicial Magistrate, the requirement of s.195 (1) of the CrPC was not fulfilled – Under such circumstances, the appellant has been able to make out a case that taking cognizance of the offence u/s. 186 of the IPC by the Court of CJM, Varanasi, was illegal, as before taking such cognizance it was to be preceded by a complaint in writing by a public servant as required u/s.195(1) of the CrPC – As far as taking cognizance of the offence u/s.353 of the IPC is concerned, in the FIR there is no allegation of use of criminal force or assault by the appellant so as to invoke the provision of s.353 of the IPC – The ingredients of offence u/s. 353 of the IPC are clearly absent in the FIR – Since no ingredient for the offence u/s.353 of the IPC is found in the FIR, taking cognizance by the CJM of an offence that is not made out in the FIR does not appear to be correct – Nothing was mentioned in the complaint/FIR of any specific acts apart from alleging that the appellant and his party were creating disturbance – If “disturbance” has to be construed as “assault” or “criminal force” without there being specific acts attributed to make such “disturbance” as “assault” or “criminal face” within the scope of s.353 of the IPC, it would amount to abuse of the process of law – Also, the contents of the statements recorded later u/s. 161 of the CrPC clearly appears to be an afterthought and the allegation of assault/attack was introduced later on, which is inconsistent with the contents of the original FIR – Thus, the appellant has been able to make out the case for quashing the criminal proceedings pending against him. [Paras 15, 16, 17, 19, 20, 21, 25, 26, 33, 34, 42] Code of Criminal Procedure, 1973 – s.155 – Specific bar on police to investigate non-cognizable offence:
Held: Section 155 (2) of the CrPC provides that when information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate – Section 155(2) of the CrPC further provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such a case or commit the case for trial – Thus, there is a specific bar on the police to investigate any such non-cognizable offence, without the order of a Magistrate. [Para 11]
Code of Criminal Procedure, 1973 – s.155 – s.155 refers to a Judicial Magistrate or Executive Magistrate:
Held: Since the Magistrate referred to u/s.155 under Chapter XII of the CrPC refers to a Magistrate who has the power to try such case or commit the case for trial and thus exercises judicial function, he has to be a Judicial Magistrate – Further, u/s.195 (1) of the CrPC r/w.s.2 (d) of the CrPC, the complaint, has to be filed before the court taking cognizance, and the complaint which is required to be filed u/s.195 (1) of the CrPC, can only be before a Judicial Magistrate and not an Executive Magistrate who does not have the power to take cognizance of an offence or try such cases.[Para 19]
Code of Criminal Procedure, 1973 – FIR must disclose nature of offence:
Held: A criminal process is initiated only with the lodging of an FIR – Though FIR is not supposed to be an encyclopedia containing all the detailed facts of the incident and it is merely a document that triggers and sets into motion the criminal legal process, yet it must disclose the nature of the offence alleged to have been committed as otherwise, it would be susceptible to being quashed. [Para 25]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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