Supreme Court of India
B.N. John vs The State Of Uttar Pradesh on 2 January, 2025
2025 INSC 4 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2025
(@ SPECIAL LEAVE PETITION (CRL.) NO. 2184 OF 2024)
B. N. JOHN ...APPELLANT (S)
VERSUS
STATE OF U.P. & ANR. …RESPONDENT(S)
JUDGMENT
NONGMEIKAPAM KOTISWAR SINGH, J.
Leave granted.
2. The present appeal has been preferred being aggrieved by the
judgment dated 22.09.2023 passed by the High Court of Judicature at
Allahabad under Section 482 of the Code of Criminal Procedure, 1973
(‘CrPC’ for short) in Application No. 35311 of 2023 by which the
appellant’s plea for quashing of the chargesheet No.162 of 2015 dated
20.06.2015, order dated 11.08.2015 taking cognizance and issuing
summons, and the entire proceedings in Case No. 9790 of 2015 arising out
Signature Not Verified
Digitally signed by
GEETA JOSHI
of Case Crime No. 290 of 2015 under Sections 353 and 186 of the Indian
Date: 2025.01.02
16:15:09 IST
Reason:
Page 1 of 27
Penal Code, 1860 (‘IPC’ for short), P.S. Cantt. District Varanasi, U.P., was
rejected.
FACTUAL BACKGROUND
3. It is the plea of the appellant that he is the owner of the premises and
was in charge of managing & maintaining the hostel, which was being
operated by a Non-Governmental Organization, named Sampoorna
Development India. This hostel at the relevant time was used for
underprivileged children by providing facilities for their accommodation,
education and other needs.
3.1 According to the appellant, because of certain personal disputes with
one K.V. Abraham, the latter instituted six false cases against him, four of
them resulted in his acquittal, while in the other two discharge applications
are pending. According to the appellant, it was at the instance of the said
Abraham that the officials conducted a raid in the said hostel arbitrarily
without authorization and also without providing any prior notice, alleging
that provisions of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (‘JJ Act’ for short) as applicable then, were not followed in
running and managing the said hostel.
3.2 It is the allegation of the appellant 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 purportedly on the
ground that the hostel was being run without proper authorization from the
competent authority under the JJ Act.
3.3. It was further contended that a false allegation was made against the
appellant that he, along with his party, had attacked and assaulted the
officials while they were conducting the raid in connection with which an
FIR came to be lodged against the appellant and his wife, which wasPage 2 of 27
registered as FIR No. 290 of 2015 dated 03.06.2015 at the PS Cantt.
District, Varanasi under Section 353 of the IPC.
3.4. On the basis of the said FIR, the appellant was arrested on
08.06.2015. However, he was granted bail on the same day. Subsequently,
on completion of the investigation, charge-sheet was filed before the Court
of Chief Judicial Magistrate, Varanasi in connection with the said FIR on
20.06.2015 alleging commission of offences under Sections 353 and 186
of the IPC.
3.5. Pursuant to the filing of the chargesheet, the Chief Judicial
Magistrate, Varanasi took cognizance and issued summons to the appellant
vide order dated 11.08.2015, against which the appellant submitted an
application for recalling the said order, which is pending before the Court
of CJM, Varanasi.
3.6. According to the appellant, a complaint alleging commission of an
offence under Section 186 of the IPC would be maintainable only if it is
preceded by a complaint filed by a public servant as mentioned under
Section 195 (1)(a) of the CrPC before the court/Magistrate, but there was
no such prior complaint filed by any public servant before the Magistrate.
Further, though the FIR was filed under Section 353 of the IPC,
there were no ingredients to make out a case under the said section. It is
also the case of the appellant that the authorities had maliciously invoked
the penal provision of Section 353 of the IPC in the FIR merely to make
out a cognizable offence against the appellant to enable the Magistrate to
take cognizance, even though there was no case of any assault or use of
criminal force by the appellant to deter any public servant from discharging
his duty. Hence, taking cognizance of the said FIR by the CJM, Varanasi
under Section 353 of the IPC was unwarranted and illegal.
Page 3 of 27
3.7 Accordingly, the appellant approached the Allahabad High Court
invoking jurisdiction under Section 482 of the CrPC seeking quashing of
the aforesaid proceedings, that is, Crime Case No. 290 of 2015 pending
before the CJM, Varanasi and orders taking cognizance and issuing
summons in that regard.
3.8 The Allahabad High Court on perusal of the FIR No.290/15 and the
statement of witnesses recorded under Section 161 of the CrPC held that a
prima facie case has been made out against the appellant for being
summoned and for prosecution under the aforesaid Sections 353 and 186
of the IPC and declined his plea for quashing the aforesaid criminal case
which was pending before the CJM, Varanasi.
3.9 While dismissing the petition filed by the appellant, the Allahabad
High Court referred to an earlier decision of the High Court in rejecting
the application filed by the co-accused seeking quashing of the aforesaid
proceedings under Section 482 of the CrPC which was affirmed by this
Court on 13.04.2017 by dismissing the SLP in limine.
In the present impugned order, the High Court observed that the
allegations against the present appellant and co-accused are same as well
as the evidence collected against them and since the plea of quashing the
charge sheet and cognizance taken against the said co-accused had already
been rejected on merits by the High Court, which was not disturbed by this
Court, no interference was warranted for quashing the proceedings under
Section 482 of the CrPC, filed by the present appellant and dismissed the
petition. Accordingly, the appellant is before us.
SUBMISSION OF THE APPELLANT
4. It is the specific plea of the appellant that cognizance in respect of
an offence under Section 186 of the IPC can be taken by the court only
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after a complaint is made in writing by the public servant to the court as
provided under Section 195 (1) of the Cr.P.C. It has been submitted that in
the present case no such written complaint was filed by any public official
as also ascertained by him from the concerned authority through an
application filed to the competent authority under the Right to Information
Act, 2005, whereby he was informed that no written complaint was filed
before the court by any public servant in connection with Case No. 9790
of 2015 (State Vs B.N. John and Anr.).
4.1 Further, for invoking the provision of Section 353 of the IPC there
must be a clear allegation of assault or criminal force by the accused for
preventing the public servant from discharging his duty. However, a
careful reading of the FIR would indicate that no such allegation was made
against the appellant of using criminal force or assault and accordingly,
even if the allegations made in the FIR are taken at their face value, it does
not disclose the commission of any cognizable offence as contemplated
under Section 353 of the IPC.
4.2 Accordingly, it has been submitted that taking cognizance by the
CJM, Varanasi, of the aforesaid case under the stated facts and
circumstances is quite illegal and perverse in law, as such, the same ought
to have been quashed by the Allahabad High Court. It was contended that
the Allahabad High Court, however, had misdirected itself by observing
that a prima facie case is made out on the basis of the contents of the FIR
and the statement of the witnesses recorded under Section 161 CrPC.
4.3 It has also been contended that the Allahabad High Court in the
present case ought not to have taken into consideration the order passed in
respect of the other co-accused, as the legal issues as highlighted in this
appeal, were not considered by the Allahabad High Court while rejecting
Page 5 of 27
the plea of the co-accused for quashing the complaint. As such, the said
decision cannot be used against the present appellant.
PLEA OF THE RESPONDENT
5. Per contra, it has been submitted on behalf of the State that the
decision rendered by the Allahabad High Court is in consonance with the
law and no grievance can be made as the High Court had applied the
relevant law to the facts of the present case.
Further, it has also been submitted that this Court must be very slow
in interfering with a reasoned order passed by the High Court, and the
impugned order cannot be said to be perverse, illegal, or without any
jurisdiction. It was contended that merely because a different view could
have been taken by the High Court, it does not render the decision of the
High Court illegal, warranting interference from this Court, and the High
Court passed the order after going through the records.
ANALYSIS
6. We have heard learned counsel for the parties and perused the
record.
7. As far as quashing of criminal cases is concerned, it is now more or
less well settled as regards to the principles to be applied by the court. In
this regard, one may refer to the decision of this Court in State of Haryana
Vs. Ch. Bhajan Lal and Ors., 1992 Supp. (1) SCC 335 wherein this Court
has summarized some of the principles under which
FIR/complaints/criminal cases could be quashed in the following words:
“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of
law enunciated by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories
of cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court orPage 6 of 27
otherwise to secure the ends of justice, though it may not be possible
to lay down any precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge.”
(emphasis added)
8. Of the aforesaid criteria, clauses no. (1), (4) and (6) would be of
relevance to us in this case.
Page 7 of 27
In clause (1) it has been mentioned that where the allegations made
in the first information report or the complaint, even if they are taken at
their face value and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused, then the FIR or the
complaint can be quashed.
As per clause (4), where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by police officer without an order dated by the
Magistrate as contemplated under Section 155 (2) of the CrPC, and in such
a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an express legal
bar engrafted in any of the provisions of the CrPC or the concerned Act
under which the criminal proceedings is instituted, such proceeding can be
quashed.
9. Our criminal justice system, rooted in the rule of law, contemplates
different approaches for dealing with serious and non-serious offences.
When complaints pertaining to serious offences are filed, which are
generally categorized as cognizable offences under the CrPC, the police,
on receiving such information of the commission of a cognizable offence
can immediately start the investigation as contemplated under Section 156
of the CrPC. On the other hand, when it relates to non-serious offences
which are generally categorized as non-cognizable offences, the law is
more circumspect in letting the full force of the criminal justice system
operate. When it is related to non-cognizable offence there are certain
safeguards put in place so that the invasive, intrusive, and coercive power
of the police is not immediately brought into operation, as enabled under
Section 156 of the CrPC. In such a situation any complaint alleging
commission of non-serious offence(s) or non-cognizable offence(s) made
Page 8 of 27
before the police, has to be vetted by a legally trained person in the
presence of a Judicial Magistrate before the police can initiate the
investigation. Thus, even if the police receives any such complaint relating
to non-cognizable offence, the police cannot start investigation without
there being a green signal from the Magistrate. Further, when such non-
cognizable offence(s) pertaining to officials who are obstructed from
discharging their official duties, there is the additional safeguard before the
Magistrate which permits the investigating authority to investigate. It must
be preceded by a complaint filed by a public servant before the
court/Magistrate. This is to ensure that only genuine complaints relating to
non-serious offences or non-cognizable offences are entertained by the
Magistrate. This is so for the reason that in a democracy, interactions of
the citizen with the public servants is more frequent in wherein there may
be instances where the members of the public cause obstruction to public
servants preventing them from discharging public duties properly.
With these safeguards, the fine balance between the liberties of the
citizens and the imperatives of the State endowed with coercive authority
to maintain law and order is preserved.
10. Keeping the aforesaid principles and aspects in mind, we shall
proceed to examine the issues and contentions of the parties before us.
11. Chapter XII of the CrPC deals with information given to the police
and their powers to investigate.
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
Page 9 of 27
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.
Relevant portions of Section 155 of the CrPC reads as under:
“155. Information as to non-cognizable cases and
investigation of such cases.—
(1) 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.
(2) No police officer shall investigate a non-cognizable case
without the order of a Magistrate having power to try such
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.
12. However, no such bar has been placed when it relates to a
cognizable offence as provided under Sections 154 and 156 of the CrPC,
under which, any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case that a court having
jurisdiction over the local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter XII, as
reproduced herein below:
“154. Information in cognizable cases.—(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in
this behalf:
Page 10 of 27
Provided that if ……………………………………………”
“156. Police officer’s power to investigate cognizable case.—
(1) Any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which
a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try
under the provisions of Chapter XIII.
(2) …………………………………………………..
………………………………………………………….”
13. While Section 155 of the CrPC deals with all non-cognizable
offences, where the police cannot investigate without a prior order of the
Magistrate, Section 195 of the CrPC provides additional conditions under
which the Magistrates can take cognizance in respect of certain kinds of
non-cognizable offences as mentioned in the said section, which includes
Section 186 of the IPC with which we are directly concerned, only after a
written complaint is filed by the concerned public servant to the
court/Magistrate.
Relevant portions of Section 195 of the CrPC read as follows:
“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.
(1) No Court shall take cognizance—
(a) (i) of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code, (45 of
1860), or
(ii) of any abetment of, or attempt to commit, such
offence, or
(iii) of any criminal conspiracy to commit such
offence,
except on the complaint in writing of the public servant
concerned or of some other public servant to whom he is
administratively subordinate;
………………………………………
………………………………………….”
14. Since, the appellant has been charged for committing offences under
Sections 186 and 353 of the IPC, it may be appropriate to reproduce the
same.
Page 11 of 27
Section 186 of the IPC reads as follows:
“186. Obstructing public servant in discharge of public
functions.—Whoever voluntarily obstructs any public servant in
the discharge of his public functions, shall be punished with
imprisonment of either description for a term which may extend
to three months, or with fine which may extend to five hundred
rupees, or with both.
Section 353 of the IPC reads as follows:
“353. Assault or criminal force to deter public servant from
discharge of his duty.—Whoever assaults or uses criminal force
to any person being a public servant in the execution of his duty
as such public servant, or with intent to prevent or deter that
person from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by such
person to the lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.”
15. A bare perusal of Section 195 (1) of the CrPC clearly indicates that
there is a bar on the court to take cognizance of any offence punishable
under Section 172 to 188 (both inclusive) of the IPC except on a complaint
in writing made by the concerned public servant to the court. Therefore,
if it is found as contended by the appellant that in respect of the offence
under Section 186 of the IPC against him, no such complaint was filed by
the concerned public servant as contemplated under Section 195 (1)(a)
CrPC, the CJM could not have taken cognizance of the offence under
Section 186 of the IPC.
In this regard, the appellant has specifically pleaded to which there
is no rebuttal from the State that no such complaint was made in writing
by a public servant as required under Section 195(1) of the CrPC relating
to the commission of offence by the appellant under Section 186 of the
IPC.
Page 12 of 27
16. The State has, however, 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 in the process of sending
the minor children residing in the institution run illegally by Sampoorn
Development India to other approved institutions and requested the City
Magistrate to take cognizance of the same and take legal action.
The aforesaid complaint reads as follows:
“To,
City magistrate
VaranasiSir,
By your order dated June 3, 2015, letter no. 1346, Mr B.N.
John, Ms Susan John and their people are creating obstruction in
the process of sending the minor children residing in the non-legal
institution run by the Sampoorna Development Trust to other
Institutions legally. Please take cognizance of this and take further
legal action.
Sincerely
Prabhat Ranjan
03/06/2013District Probation Officer.
Station Head Cantt/CO Cantt.
S/O is creating obstruction in important work necessary action.”
17. A careful examination of the aforesaid letter, however, would reveal
the following crucial aspect.
The said letter in the form of complaint is addressed to the City
Magistrate and not to any Judicial Magistrate. As to what is a complaint is
defined under Section 2 (d) of the CrPC which reads as follows:
“2. Definitions.—In this Code, unless the context otherwise
requires,
(a) ……………………………
(b) ……………………………
(c) ……………………. ……..
Page 13 of 27
(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.
Thus, 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.
18. As regards the difference between a Judicial Magistrate and an
Executive Magistrate, it has been clarified by this Court in Gulam Abbas
v. State of U.P., (1982) 1 SCC 71 as follows:
“24. Turning to the 1973 Code itself the scheme of separating
Judicial Magistrates from Executive Magistrates with allocation of
judicial functions to the former and the executive or administrative
functions to the latter, as we shall presently indicate, has been
implemented in the Code to a great extent. Section 6 provides that
there shall be in every State four classes of criminal courts, namely,
(i) Courts of Session, (ii) Judicial Magistrates of the First class
and, in any metropolitan area, Metropolitan Magistrates;(iii)
Judicial Magistrates of the Second Class; and (iv) Executive
Magistrates; Sections 8 to 19 provide inter alia for declaration of
metropolitan area, establishment of Courts of Session, Courts of
Judicial Magistrates, Courts of Metropolitan Magistrates and
appointments of Sessions Judges, Additional Sessions Judges,
Assistant Sessions Judges, Chief Judicial Magistrates, Judicial
Magistrates, Chief Metropolitan Magistrates and Metropolitan
Magistrates together with inter se subordination, but all
appointments being required to be made by the High Court, while
Sections 20, 21, 22 and 23 deal with appointments of District
Magistrates, Additional District Magistrates, Executive
Magistrates, Sub-Divisional Magistrates and Special Executive
Magistrates and their respective jurisdictions in every district and
metropolitan area together with inter se subordination, but
appointments being made by the State Government. Chapter III
comprising Sections 26 to 35 clearly shows that Executive
Magistrates are totally excluded from conferment of powers to
punish, which are conferred on Judicial Magistrates; this shows
that if any one were to commit a breach of any order passed by an
Executive Magistrate in exercise of his administrative or executive
function he will have to be challenged or prosecuted before a
Judicial Magistrate to receive punishment on conviction. Further,
if certain sections of the present Code are compared with the
equivalent sections in the old Code it will appear clear that a
separation between judicial functions and executive or
administrative functions has been achieved by assigningPage 14 of 27
substantially the former to the Judicial Magistrates and the latter
to the Executive Magistrates. For example, the power under
Section 106 to release a person on conviction of certain types of
offences by obtaining from him security by way of execution of bond
for keeping peace and good behaviour for a period not exceeding
three years — a judicial function is now exclusively entrusted to a
Judicial Magistrate whereas under Section 106 of the old Code
such power could be exercised by a Presidency Magistrate, a
District Magistrate or Sub-Divisional Magistrate; but the power to
direct the execution of a similar bond by way of security for keeping
peace in other cases where such a person is likely to commit breach
of peace or disturb the public tranquillity — an executive function
of police to maintain law and order and public peace which was
conferred on a Presidency Magistrate, District Magistrate, etc.
under the old Section 107 is now assigned exclusively to the
Executive Magistrate under the present Section 107; Chapter X of
the new Code deals with the topic of maintenance of public order
and tranquillity and in that Chapter Sections 129 to 132 deal with
unlawful assemblies and dispersal thereof, Sections 133 to 143 deal
with public nuisance and abatement or removal thereof, Section
144 deals with urgent cases of nuisance and apprehended danger
to public tranquillity and Sections 145 to 148 deal with disputes as
to immovable properties likely to cause breach of peace — all being
in the nature of executive (“police”) functions, powers in that
behalf have been vested exclusively in Executive Magistrates
whereas under equivalent provisions under the old Code such
powers were conferred indiscriminately on any Magistrate,
whether Judicial or Executive. In particular it may be stated that
whereas under the old Section 144 the power to take action in
urgent cases of nuisance or apprehended danger to public
tranquillity had been conferred on “a District Magistrate, a Chief
Presidency Magistrate, a Sub-Divisional Magistrate or any other
Magistrate, specially empowered by the State Government”, under
the present Section 144 the power has been conferred on “a
District Magistrate, a Sub-Divisional Magistrate or any other
Executive Magistrate specially empowered by the State
Government in that behalf”. Having regard to such implementation
of the concept of separation of judicial functions from executive or
administrative functions and allocation of the former to the Judicial
Magistrates and the latter to the Executive Magistrates under the
Code of 1973, it will be difficult to accept the contention of the
counsel for Respondents 5 and 6 that the order passed by a District
Magistrate, Sub-Divisional Magistrate or any other Executive
Magistrate under the present Section 144 is a judicial or quasi-
judicial order, the function thereunder being essentially an
executive (police) function. ………………………….”
Page 15 of 27
19. Since the Magistrate referred to under Section 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, under Section 195 (1) of the CrPC read
with Section 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
under Section 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.
20. In the present case, since the complaint was filed before the City
Magistrate and not before a Judicial Magistrate, the requirement of Section
195 (1) of the CrPC was not fulfilled.
21. Under such circumstances, we are satisfied that the appellant has
been able to make out a case that taking cognizance of the offence under
Section 186 of the IPC by the Court of CJM, Varanasi, was illegal, as
before taking such cognizance it was to be preceded by a complaint in
writing by a public servant as required under Section 195(1) of the CrPC.
A written complaint by a public servant before the court takes cognizance
is sine qua non, absence of which would vitiate such cognizance being
taken for any offence punishable under Section 186 of the IPC.
22. This leads us to the next consideration as to whether taking
cognizance of the offence under Section 353 of the IPC by the CJM,
Varanasi, was in order or not.
23. For a prohibited act to come within the scope of the offence under
Section 353 of the IPC, such an act must qualify either as an assault or
criminal force meant to deter public servant from discharge of his duty.
Obviously, such an act cannot be a mere act of obstruction which is an
Page 16 of 27
offence under Section 186 of the IPC. The offence contemplated under
Section 353 of the IPC is of a more serious nature involving criminal force,
or assault which attracts more stringent punishment that may extend to two
years. On the other hand, the offence of obstruction covered under Section
186 of the IPC is punishable by imprisonment, which may extend to three
months at the maximum.
A close examination of Section 353 of the IPC would indicate that
to invoke the aforesaid offence, there must be use of criminal force or
assault on any public servant in the execution of his official duty or with
the intent to prevent or deter such public servant from discharging his duty.
It would be clear from a reading of the provisions of Section 186 as well
as Section 353 of the IPC that Section 353 of the IPC is the aggravated
form of offence where criminal force or assault is involved. Unlike in the
case of Section 186 of the IPC where voluntarily obstructing any public
servant in discharge of his official function is sufficient to invoke the said
section, in the case of offence under Section 353 of the IPC as mentioned
above, not only obstruction but actual use of criminal force or assault on
the public servant is necessary.
24. In the present case, however, what can be seen from a perusal of the
contents of the FIR, is that no such allegation of assault or use of criminal
force has been made. The aforesaid FIR is based on the complaint filed by
the District Probation Officer, which has already been quoted above, and
the same has been reproduced verbatim in the said FIR in which only the
allegation of creating disturbance has been made.
25. In the FIR there is no allegation of use of criminal force or assault
by the appellant so as to invoke the provision of Section 353 of the IPC. It
is to be remembered that a criminal process is initiated only with the
lodging of an FIR. Though FIR is not supposed to be an encyclopedia
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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 as held in Bhajan
Lal’s case (supra) (vide clause 1 of Para 102 of the decision).
This Court in CBI v. Tapan Kumar Singh, (2003) 6 SCC 175
observed as follows:
“20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details relating to
the offence reported. An informant may lodge a report about the
commission of an offence though he may not know the name of the
victim or his assailant. He may not even know how the occurrence
took place. A first informant need not necessarily be an eyewitness
so as to be able to disclose in great detail all aspects of the offence
committed. What is of significance is that the information given
must disclose the commission of a cognizable offence and the
information so lodged must provide a basis for the police officer to
suspect the commission of a cognizable offence. At this stage it is
enough if the police officer on the basis of the information given
suspects the commission of a cognizable offence, and not that he
must be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of information
received, that a cognizable offence may have been committed, he is
bound to record the information and conduct an investigation. At
this stage it is also not necessary for him to satisfy himself about
the truthfulness of the information………………………”
(emphasis added)
26. However, a perusal of the FIR in issue does not at all indicate the
commission of any crime of use of criminal force or assault by the
appellant to the public servant, except for the offence of obstruction which
is punishable under Section 186 of the IPC. As such the ingredients of
offence under Section 353 of the IPC are clearly absent in the FIR. To that
extent, we are in agreement with the appellant that since no ingredient for
the offence under Section 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.
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27. The High Court, however, has held that on a perusal of the contents
of the FIR and the statement made by the witnesses recorded under Section
161 of the CrPC, it can be said that a prima facie case has been made out
against the appellant for commission of offences under Section 353 and
Section 186 of the IPC. It is to be noted that the FIR was filed under Section
353 of the IPC without mentioning Section 186 of the IPC.
What is to be noted in the present case is that if the appellant had
actually used criminal force or had assaulted the public servants, which
would bring the said acts within the scope of Section 353 of the IPC,
nothing prevented the complainant from mentioning the same in the FIR
being the first information. If such vital and crucial facts are missing from
the FIR of which the complainant was fully aware of and was already
cognizant of, which he could have mentioned at the first instance, it would
indicate that any subsequent mentioning of these facts in the case by the
complainant would be an afterthought as has happened in the present case.
The alleged fact of assault, or use of criminal force by the appellant could
not be said to have been discovered at a later point of time, as these
offensive acts, if really had happened, would have happened before the
filing of the FIR/complaint and thus should have found mention in the FIR.
These acts were not something that had happened at a later point of time,
but would have been known to the complainant had these happened when
the complainant and official party were raiding the hostel managed by the
appellant. Thus, the absence of mentioning these alleged acts which would
constitute ingredients of the offence under Section 353 of the IPC, renders
the FIR legally untenable as far as the offence under Section 353 of the
IPC is concerned. We do not see any reason why the complainant failed to
mention in the FIR the alleged use of criminal force or assault of the public
servants to prevent them from discharging their official duties when they
were raiding the premises.
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28. It appears from the impugned order of the High Court that the High
Court also perused the statements of the witnesses recorded under Section
161 of the CrPC during the investigation. We have also gone through these
statements made by Sh. Prabhat Ranjan, District Probation Officer; Sh.
Satyendra Nath Shukla, City Magistrate; Sh. Vindhavasini Rai, Addl.
District Magistrate; and Sh. Surendra Dutt Singh, ACM-IV.
What is interesting to note is that Sri Prabhat Ranjan, the District
Probation Officer, Varanasi, who filed the complaint to the City Magistrate
stated in his statement recorded under Section 161 of the CrPC that the
people in the hostel premises attacked the official team, and thereafter, the
FIR was lodged. However, when the FIR was lodged soon after the alleged
incident of attack on the officials, nothing was mentioned in the complaint
filed by him about the attack, which was the basis for registering the FIR,
which we are unable to comprehend. If indeed there was an attack as
alleged, it should have found mention in the FIR or the written complaint
filed before the City Magistrate soon after the incident.
29. We have also perused the statement of Sri Satyendra Nath Shukla,
the City Magistrate who in his statement recorded under Section 161 of the
CrPC on 20.06.2015, stated that the people in the hostel premises “were
creating obstruction in the government work in the proceeding being
carried out. In such a situation, when asked to submit the records again,
the husband, wife and some other people along with them became
aggressive by speaking loudly, due to which, while somehow trying to
escape, around 5:30 pm, the husband, the wife and others created a
difficult situation by obstructing the work, which did not allow the rescue
to be completed successfully. After this some children were rescued by the
Women District Program Officer with the help of the District Horticulture
officer, and the children were sent to Ramnagar, after which they were
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freed. Then when we asked for the record, Ben John spoke loudly, and his
wife and other children got very angry and seemed to be intent on
becoming forceful. After this, the District Probation Officer came to me
with an application regarding obstruction and assault in government
work, on which I passed the order and the SHO Cantt registered a case.”
On examination of the said statement of the City Magistrate, we are
of the view that even if the said statement is taken at its face value, it does
not disclose any ingredient of criminal force or assault to make the offence
under Section 353 of the IPC, except for making a bald statement that they
were aggressive without disclosing in what manner the officials were
obstructed or attacked.
30. We have also gone through the statement made by Sri Surendra Dutt
Singh, ACM, 4th District. While he mentions that the appellant and others
became aggressive and attacked all the officers, nothing has been
mentioned as to how they were attacked, but only a very generalized
allegation has been made without specifics.
Similarly, the other witnesses also stated the same effect.
31. We do not see any reason why the aforesaid alleged assault or attack
was not mentioned in the FIR since soon after the alleged incident
happened in the hostel premises, the FIR was lodged. On the other hand,
the written complaint to the City Magistrate only uses the expression of
“creating obstruction” by stating that “Mr. B.N. John, Ms. Susan John and
their people are creating obstruction in the process of sending the minor
children residing in the non-legal institution run by the Sampoorna
Development Trust to other institutions legally. Please take cognizance of
this and take further legal action”.
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32. There can be no doubt that there is a sea of difference between
“creating disturbance” and the “assault” and “criminal force” terms
mentioned under Section 353 of the IPC and defined under Sections 350
and 351 of the IPC respectively.
“Criminal force” has been defined under Section 350 IPC, which
reads as follows:
“350. Criminal force. —Whoever intentionally uses force to any
person, without that person’s consent, in order to the committing
of any offence, or intending by the use of such force to cause, or
knowing it to be likely that by the use of such force he will cause
injury, fear or annoyance to the person to whom the force is used,
is said to use criminal force to that other.”“Assault” has been defined under Section 351 of the IPC which
reads as follows:
“351. Assault. —Whoever makes any gesture, or any preparation
intending or knowing it to be likely that such gesture or
preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal
force to that person, is said to commit an assault.
Explanation.—Mere words do not amount to an assault.
But the words which a person uses may give to his
gestures or preparation such a meaning as may make
those gestures or preparations amount to an assault.”
33. If “disturbance” has to be construed as “assault” or “criminal force”
without there being specific acts attributed to make such “disturbance” as
“assault” or “criminal face” within the scope of Section 353 of the IPC, it
would amount to abuse of the process of law. While “disturbance” could
also be caused by use of criminal force or assault, unless there are specific
allegations with specific acts to that effect, mere allegation of “creating
disturbance” cannot mean use of “criminal force” or “assault” within the
scope of Section 353 of the IPC.
34. As noted and discussed above, nothing was mentioned in the
complaint/FIR of any specific acts apart from alleging that the appellant
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and his party were creating disturbance. Nothing has been mentioned how
disturbance was created because of assault or use of criminal force.
Thus, the contents of the statements recorded later under Section
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.
35. Under the circumstances, we are of the view that non mentioning of
these vital facts in the FIR/first complaint, which would indicate assault or
criminal force within the scope of Section 353 of the IPC, would vitiate
the cognizance taken by the CJM. These vital facts, which constitute the
ingredients for offence under Section 353 of the IPC, were not revealed in
the FIR. On the other hand, the contents of the FIR would reveal the
commission of only non-cognizable offence of obstructing the discharge
of official duties of public servants, which would fall within the scope of
Section 186 of the IPC, in which event, without the order of the Judicial
Magistrate, no investigation could have been launched by the police
against the appellant in the said FIR.
It is also to be noted that in the said FIR, Section 186 of the IPC was
not even mentioned. We have already found that no complaint was lodged
by a public servant against the appellant and his party before the
Magistrate/court alleging commission of offence under Section 186 of the
IPC as required under Section 195 (1) of the CrPC read with Section 155
of the CrPC. The written complaint filed by the District Probation Officer
was not to a Judicial Magistrate but to an Executive Magistrate, hence was
not valid. The police could not have investigated the said offence under
Section 186 of the IPC. Thus, the very act of taking cognizance at the initial
stage by the CJM, Varanasi, on the basis of the FIR under Section 353 of
the IPC, which does not disclose the ingredients and commission of
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cognizable offence under Section 353 of the IPC, appears to be contrary to
law. If the initial process is vitiated, the subsequent process would also
stand vitiated.
In State of Punjab vs. Davinder Pal Singh Bhullar (2011) 14 SCC
770, it was held as follows:
”107. It is a settled legal proposition that if initial action is not in
consonance with law, all subsequent and consequential
proceedings would fall through for the reason that illegality
strikes at the root of the order. In such a fact situation, the legal
maxim sublato fundamento cadit opus meaning thereby that
foundation being removed, structure/work falls, comes into play
and applies on all scores in the present case.
108. In Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 : 2001 SCC
(L&S) 13 : AIR 2000 SC 3243] and State of Kerala v. Puthenkavu
N.S.S. Karayogam [(2001) 10 SCC 191] this Court observed that
once the basis of a proceeding is gone, all consequential acts,
actions, orders would fall to the ground automatically and this
principle is applicable to judicial, quasi-judicial and
administrative proceedings equally.”
36. What is evident from the records is that the police entertained the
FIR under Section 353 of the IPC and investigated the same by conferring
jurisdiction upon itself as if it was a cognizable offence as provided under
Section 156 of the CrPC, when commission of any cognizable offence was
not made out in the FIR, which is not permissible in law. The police added
Section 186 of the IPC later, and the CJM, Varanasi, took cognizance of
the offence of Section 186 of the IPC along with Section 353 of the IPC
when no complaint was made by any public servant to the CJM or any
court as required under Section 195 (1) of the CrPC.
37. We are mindful of the position that where, during the investigation
of a cognizable or non-cognizable offence on the basis of an FIR lodged,
new facts emerge that will constitute the commission of a non-cognizable
offence under IPC, in which event, the police can continue with the
investigation of the non-cognizable offence of which there cannot be any
dispute.
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Thus, even if it is assumed that in the course of the investigation of
a cognizable offence, the ingredients of a non-cognizable offence are
discovered then the police could have continued the investigation without
the written complaint to the court or the order of the court in respect of
such non-cognizable offence, as it would also be deemed to be a cognizable
offence under Section 155(4) of the CrPC, but where the investigation of
the cognizable office itself suffers from legal infirmity and without
jurisdiction from the initial stage, the entire investigation would be
vitiated. For this reason, the police cannot seek the shield under Section
155 (4) of the CrPC when the FIR did not disclose the commission of a
cognizable offence.
38. As discussed above, the offence allegedly committed by the
appellant as disclosed in the FIR can, at best, be that of a non-cognizable
offence under Section 186 of the IPC, though Section 186 of the IPC is not
even mentioned in the FIR. It is evident that Section 186 of the IPC was
added subsequently, of which the CJM took cognizance later. The FIR
does indicate that a letter was written by the District Probation Officer to
the City Magistrate, but the said letter pertains to the filing of the FIR under
Section 353 of the IPC and not for offence under Section 186 of the IPC.
Further, the said letter dated 03.06.2015 was not addressed to the CJM,
Varanasi, before whom such a written complaint was supposed to be made
to enable the Court to take cognizance of the offence under Section 186 of
the IPC.
39. We have also perused the order dated 13.10.2015 passed by the High
Court in the earlier case filed by Mrs. Susan John, the co-accused, wherein
the High Court declined to quash the charge sheet No. 162 of 2015 dated
20.6.2015 in the same Case Crime No. 290 of 2015 pending before the
Court of CJM, Varanasi, on the ground that perusal of the material on
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record and looking into the facts of the case at that stage, it cannot be said
that no offence is made out against the applicant, and all the submissions
made at the Bar relate to the disputed questions of fact, which cannot be
adjudicated by the court under Section 482 of the CrPC, and at that stage
only the prime facie case is to be seen in the light of the law laid down by
this Court in the cases of R P Kapoor vs. State of Punjab, AIR 1960 SC
866; State of Haryana vs. Bhajan Lal (supra); State of Bihar vs. PP
Sharma, 1992 SCC (Cr) 192; and Zandu Pharmaceutical Works Ltd. vs.
Mohd. Saraful Haq and another, 2005 SCC(Cr) 283.
40. However, it is noticed that the High Court did not examine any of
the issues as discussed above in this appeal. The said decision of the High
Court was not interfered with by this Court, and the SLP filed against the
said order dated 13.10.2015 was dismissed in limine by this Court.
This Court has reiterated that in limine dismissal of a Special Leave
Petition at the threshold without giving any detailed reasons does not
constitute any declaration of law or a binding precedent under Article 141
of the Constitution. In State of Punjab vs. Davinder Pal Singh Bhullar
(2011) 14 SCC 770, it was held as follows:
“113. A large number of judicial pronouncements made by this
Court leave no manner of doubt that the dismissal of the special
leave petition in limine does not mean that the reasoning of the
judgment of the High Court against which the special leave
petition had been filed before this Court stands affirmed or the
judgment and order impugned merges with such order of this
Court on dismissal of the petition. It simply means that this Court
did not consider the case worth examining for a reason, which
may be other than the merit of the case. An order rejecting the
special leave petition at the threshold without detailed reasons,
therefore, does not constitute any declaration of law or a binding
precedent.”We are, thus, of the view that said decision of the High Court and
dismissal in limine by this Court will not come in the way of disposal of
this appeal on merits.
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41. Under the circumstances, we are of the opinion that taking
cognizance by the CJM, Varanasi, of the offences under Section 353 of the
IPC and 186 of the IPC was not done by following the due process
contemplated under the provisions of law, and accordingly, the same being
contrary to law, all the orders passed pursuant thereto cannot be sustained
and would warrant interference from this Court.
42. For the reasons discussed above, we are satisfied that the appellant
has been able to make out the case for quashing the criminal proceedings
pending against the appellant before the CJM, Varanasi.
43. Accordingly, we allow this appeal by quashing Case No. 9790 of
2015 arising out of Case Crime No. 290 of 2015 under Sections 353 and
186 of the IPC, under P.S. Cantt, District Varanasi, pending before the
Court of the CJM, Varanasi, and the consequent orders passed by the CJM,
Varanasi in taking cognizance and issuing summon to the appellant.
Consequently, the impugned order dated 22.09.2023 passed by the
Allahabad High Court in Application Under Section 482 No. 35311 of
2023 is also set aside.
……………………………J.
(B. V. NAGARATHNA)
………………………………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)
New Delhi;
January 02, 2025.
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