Code of Criminal Procedure, 1973 – s.195 – Scope – Penal Code, 1860 – ss.186, 341 – Petitioner-SHO allegedly misbehaved with/detained the Respondent no.2-Process Server when he visited the police station and insisted for receipt of summons – Respondent no.2 brought alleged misconduct on part of the petitioner to the notice of the District & Sessions Judge in the form of voluntary obstruction said to have been caused in the discharge of his public functions, who in turn assigned the complaint to the Administrative Civil Judge who then lodged a private complaint in the court of the CMM – However, the CMM instead of taking cognizance upon the said complaint and issuing process to the petitioner, directed registration of FIR u/ss.186, 341, IPC – Order challenged by the petitioner before Sessions Judge, rejected – High Court affirmed the order passed by the CMM – Challenge to:
Held: 1.1 The word ‘obstruction’ in s.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 – The expression ‘obstruction’ used in s.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 s.186 of the I.P.C. [Paras 24, 29]
1.2 Petitioner’s acts prima facie, amount to obstructing the public servant in the discharge of their public function – Therefore, the complaint itself, does not suffer from any legal infirmity – However, the CMM should have straightaway taken cognizance upon the complaint and issued process to the petitioner – Asking the police to investigate the complaint u/s.156(3) of the Cr.P.C. was a very serious error committed by the CMM – There was no need to involve the police in a complaint lodged by a Civil Judge for the offence punishable u/ss.186 and 341 of the I.P.C. [Paras 30, 12]
1.3 s.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 – s.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 u/s.186 of the I.P.C. is closely interconnected with another distinct offence(s), which in this case is s.341 of the I.P.C. and it cannot be split up, then in such circumstances, the bar of s.195 of the Cr.P.C. will apply to such other distinct offence also. [Para 36]
1.4 s.195(1)(a)(i), Cr.P.C. bars the court from taking cognizance of any offence punishable u/ss.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. [Para 59]
1.5 If in truth and substance, an offence falls in the category of s.195(1)(a)(i), it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts – However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up – It would depend upon the facts of each case, the nature of allegations and the materials on record. [Para 59]
1.6 Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by s.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 s.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. [Para 59]
1.7 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 s.195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of s.195 of the Cr.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required. [Para 59]
1.8 Where an accused is alleged to have committed some offences which are separate and distinct from those contained in s.195, s.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 s.195 of the Cr.P.C – This would all depend on the facts of each case. [Para 59]
1.9 ss.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 s.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 s.340 of the Cr.P.C. is followed. [Para 59]
1.10 It is left open to the petitioner to raise the contention as regards the bar of s.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 in the FIR. [Para 60]
Code of Criminal Procedure, 1973 – s. 195(1)(a)(i) – Bar under – Object and intent behind, stated. [Para 43]
Word and Phrases - ‘obstruction’ – Penal Code, 1860 – s.186 vis-à-vis Customs Act, 1962 – s.133 - “whoever voluntarily obstructs any public servant in the discharge of his public functions” used in s.186; expression “if any person intentionally obstructs any officer of customs” used in s.133 of the Customs Act, 1962:
Held: The expression ‘intentionally’ used in s.133 of the Customs Act and the expression ‘voluntarily’ used in s.186 of I.P.C. connote the same meaning – The expression ‘obstruction’ used in s.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 s.186 of the I.P.C. [Para 29]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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