Himachal Pradesh High Court
Anurag Thakur And Another vs State Of H.P on 30 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 35 of 2016.
Reserved on: 24.5.2016.
Decided on: 30.5.2016.
.
Anurag Thakur and another ......Petitioners.
Versus
State of H.P. .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
of
Whether approved for reporting? 1. Yes
For the petitioners: Mr. Randeep Rai, Sr. Advocate, with M/S Vikrant
Thakur, Amit Kumar Dhuman, Rubina, Haresh
and Purshottam Chaudhary, Advocates.
For the respondents: rt Mr. Shrawan Dogra, AG with Mr. Parmod Thakur,
Addl. AG and Mr. Neeraj K. Sharma, Dy. AG.
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Justice Rajiv Sharma, J.
The present petition has been filed under Section 482 of the Code of Criminal Procedure praying for quashing of complaint pending in the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala under Section 186 of the IPC along with summoning order/notice of accusation and all other consequential proceedings.
2. The petitioner No. 1 is 3rd time Member of Parliament. He was first elected to Lok Sabha in May, 2008 in a by-poll. He won once again from Hamirpur Constituency in the year 2014. He was also elected as Secretary of the Board of Control Cricket in India in March, 2015. The petitioner No. 1 is also President of Himachal Pradesh Cricket Association (HPCA). The petitioner No. 2 is the Public Relation Officer (PRO) of the Himachal Pradesh Cricket Association.
1Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 2
3. According to the averments made in the complaint, Insp.
Jagdish Chand along with Insp. Prem Chand, Yashpal, Const. Ashok .
Kumar, HC Rakesh Kumar, HC Sanjay Kumar and other staff members was present at 1:55 PM in the Police Station Hazoor (SV & ACB), Dharamshala. The petitioners along with about 200-250 persons entered inside the main gate. They raised slogans and burst crackers. Insp.
Jagdish Chand along with Insp. Prem Chand apprised the petitioners that of S.P. Yog Raj was carrying out the investigation. He was out of station.
They disclosed their identity to the petitioners. The accused enquired rt about the Superintendent of Police. Thereafter, the accused along with 25- 30 persons forcibly entered the Office of Superintendent of Police. They raised slogans in the courtyard. They came out of the Office of Superintendent of Police at 2:30 P.M. They remained near the gate of the Office of Superintendent of Police for ten minutes. They had disrupted the government administration for half an hour in the Police Station and Office of Superintendent of Police (SV & ACB). Thus, the petitioners have committed the offence under Section 186 IPC.
4. Mr. Randeep Rai, Sr. Advocate, appearing for the petitioners has argued that his clients have never obstructed the public servants from discharging their public functions, as alleged in the complaint Ext. P-1. He also vehemently argued that the mandatory provisions of Section 195 (1) (a) Cr.P.C. have not been followed. According to him, the complaint could only be filed by the concerned person or his immediate superior to whom he was subordinate and not by the SHO concerned. On the other hand, Mr. Shrawan Dogra, learned Advocate General for the State has strenuously ::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 3 argued that there was no breach of Section 195 (1) (a) Cr.P.C. According to him, the petitioners along with other persons have obstructed voluntarily .
the public servants from discharging their duties by entering into the Police Station and the Office of Superintendent of Police (SV & ACB).
5. The record was produced by the learned Advocate General during the course of hearing of the matter.
6. I have heard the learned counsel appearing on both the sides of and have also gone through the records minutely.
7. Mr. Shrawan Dogra, learned Advocate General has drawn the rt attention of the Court to DDR entry No. 12(A) from the records produced before the Court. It is stated in the DDR that on 24.10.2013 Insp. Jagdish Chand along with Insp. Prem Chand and other police officials were present in Police Station Hazoor (SV & ACB), Dharamshala. The petitioner No. 1 with Mr. Parveen Sharma, Ex MLA, Mr. Sanjay Sharma, PRO (HPCA), Mr. Virender Kanwar, MLA along with 200/250 Bhartiya Janta Party Yuva Morcha (BJYM) workers carrying banners and bursting crackers entered the gate. They entered the Police Station. Mr. Parveen Sharma and petitioner No. 1 enquired from Insp. Jagdish Chand as to who has called them. He told them that Sh. Yog Raj, Addl. Superintendent of Police was conducting investigation in Himachal Pradesh Cricket Association case and he was out of the Police Station. They asked for his identity. He disclosed the same. They asked him about the whereabouts of Superintendent of Police. Thereafter, the petitioner No. 1 along with other 25-30 persons forcibly entered the Office of Superintendent of Police. They raised slogans against the Chief Minister for half an hour. They disrupted the government ::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 4 administration in the Police Station and Office of Superintendent of Police (SV & ACB) for half an hour. The copy of DDR No. 12(A) was sent by the .
Superintendent of Police (SV & ACB) NR, Dharamshala to Superintendent of Police, Kangra at Dharamshala on 28.10.2013 for taking necessary action.
8. In sequel to letter dated 28.10.2013, DDR No. 15(A) was prepared by the SHO PS Dharamshala reiterating the contents of DD entry of No. 12(A). The SHO, PS Dharamshala moved an application before the learned Chief Judicial Magistrate, Kangra at Dharamshala seeking rt sanction to initiate proceedings under Section 186 IPC vide Annexure P-1.
Respondent No. 1 has filed the reply on the affidavit of Director General of Police. The petitioners have filed rejoinder thereto. The learned Chief Judicial Magistrate, Kangra at Dharamshala vide order dated 2.11.2013 allowed the application and necessary permission was accorded to launch prosecution against the accused persons.
9. The learned Chief Judicial Magistrate, Kangra at Dharamshala passed the following order on 10.3.2014:
"Heard. From the perusal of the complaint and other annexed documents, prima-facie case exist under Section 186 of IPC against the accused persons. Let all accused person be summoned on 4.4.2014."
10. The notice of accusation was put to the petitioners on 7.11.2015. The petitioners did not plead guilty and claimed trial and thereafter vide Order dated 7.11.2015 the prosecution was directed to produce the witnesses from Sr. No. 1 to 3 for 26.2.2016.
::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 511. Section 186 of the Indian Penal Code reads as under:
"186. Obstructing public servant in discharge of public functions.--Whoever voluntarily obstructs any public servant .
in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both."
12. Section 195 (1)(a) of the Code of Criminal Procedure reads as of follows:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences rt relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;..................."
13. What emerges from the facts enumerated hereinabove is that the petitioners according to the averments made in the complaint, filed under the signatures of SHO, PS Dharamshala, firstly entered the Police Station (SV & ACB), Dharamshala and thereafter barged into the Office of Superintendent of Police and thereby disrupted government administration in the Police Station and the Office of Superintendent of Police. The complainant, in the present case, is Insp. Jagdish Chand who was the SHO (SV & ACB), Dharamshala. DDR No. 12(A) was recorded by SHO, PS (SV & ACB) giving therein the details, the manner in which the accused have ::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 6 entered into the Police Station and the Office of Superintendent of Police and raised slogans. The copy of this report was ordered to be sent to the .
SHO, Police Station Dharamshala through Superintendent of Police (SV & ACB). The Superintendent of Police (SV & ACB) NR, Dharamshala sent DD entry No. 12(A) dated 24.10.2013 to Superintendent of Police, Kangra at Dharamshala on 28.10.2013 for taking necessary action. Thereafter, SHO, Police Station, Dharamshala entered DDR No. 15(A). The copy of the same of was sent to the Superintendent of Police (SV & ACB), Dharamshala.
14. The complaint could be filed, as per the mandatory provisions rt of Section 195 (1) (a) Cr.P.C., either by Insp. Jagdish Chand and other police officers/officials present in the Police Station (SV & ACB) or a public servant to whom he was administratively subordinate, including Superintendent of Police (SV & ACB). However, the fact of the matter is that in the instant case, the complaint has been filed under the signatures of SHO, PS Dharamshala, before the learned Chief Judicial Magistrate, Dharamshala, on the basis of which cognizance was taken by the learned Chief Judicial Magistrate, Kangra at Dharamshala. The learned Chief Judicial Magistrate, Kangra at Dharamshala should have ensured while according the sanction to investigate the matter whether Section 195 (1) (a) Cr.P.C. has been complied with or not. The Superintendent of Police (SV & ACB) has merely sent the communication to the Superintendent of Police, Kangra at Dharamshala on 28.10.2013 asking him to take necessary action in accordance with law. The SHO, PS Dharamshala was not competent to file the complaint in the Court of learned Chief Judicial Magistrate, Kangra at Dharamshala seeking permission to investigate the ::: Downloaded on - 15/04/2017 20:29:06 :::HCHP 7 matter. Thus, the cognizance taken by the learned Chief Judicial Magistrate, Kangra at Dharamshala on the basis of the complaint filed by .
SHO, PS Dharamshala is void ab initio and subsequent summoning order/notice of accusation are also nullity. Order dated 10.3.2014 of the learned Chief Judicial Magistrate, Kangra at Dharamshala, whereby the accused have been summoned suffers from the vice of non-application of mind since the application of mind to relevant issues is to be sufficiently of indicated though no formal speaking or reasoned order is required at the stage of taking cognizance under section Section 190 Cr.P.C. The learned rt Chief Judicial Magistrate, Kangra at Dharamshala should have applied his judicial mind as to whether prima facie case existed as per the complaint under Section 186 of the IPC and the mandatory provisions of Section 195 (1) (a) Cr.P.C. have been followed or not. He had to ensure whether there were sufficient grounds to proceed or not and whether there were sufficient grounds for conviction as per the contents of the complaint.
15. Their lordships of the Hon'ble Supreme Court in the case of Mona Panwar vs. High Court of Judicature of Allahabad through its Registrar and others, reported in (2011) 3 SCC 496, have explained the meaning of phrase "taking cognizance of". Their lordships held that 'taking cognizance of' means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. Taking ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 8 cognizance is a different thing from initiation of the proceedings. It has been held as under:
.
"19. The phrase "taking cognizance of" means cognizance of offence and not of the offender. Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is the position whether the Magistrate takes cognizance of an offence on a complaint or on of a police report or upon information of a person other than a police officer. Before the Magistrate can be said to have taken cognizance of an offence under Section 190(1)(b) of the Code, he must have not only applied his mind to the contents of the complaint presented before him, but must have done so for the rt purpose of proceeding under Section 200 and the provisions following that Section. However, when the Magistrate had applied his mind only for ordering an investigation under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot be said to have taken cognizance of an offence.
20. Taking cognizance is a different thing from initiation of the proceedings. One of the objects of examination of complainant and his witnesses as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against the person accused of the offence in the complaint and to prevent the issue of process on a complaint which is either false or vexatious or intended only to harass such person.
Such examination is provided, therefore, to find out whether there is or not sufficient ground for proceeding further."
16. Their lordships of the Hon'ble Supreme Court in the case of Bhushan Kumar and another vs. State (NCT of Delhi) and another, reported in (2012) 5 SCC 424, have held that cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 9 cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient .
ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A "summons" is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a of response to violation of law. It has been held as under:
"11. In S.K. Sinha, Chief Enforcement Officer vs. Videocon rt International Ltd. & Ors., (2008) 2 SCC 492, the expression "cognizance" was explained by this Court as it merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 10
12. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear .
before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful of disobedience is liable to be punished under Section 174 IPC. It is a ground for contempt of court."
17. rt Their lordships of the Hon'ble Supreme Court in the case of Helios and Matheson Information Technology Limited and others, reported in (2012) 1 SCC 699, have held that if the complaint contains assertions with sufficient amount of clarity on facts and events which if taken as proved can culminate in an order of conviction against the accused persons. That is, precisely the test to be applied while determining whether the Court taking cognizance and issuing process was justified in doing so. It has been held as under:
"12. We have gone through the averments made in the complaint and are of the view that the complaint does contain assertions with sufficient amount of clarity on facts and events which if taken as proved can culminate in an order of conviction against the accused persons. That is, precisely the test to be applied while determining whether the Court taking cognizance and issuing process was justified in doing so. The legal position in this regard is much too well-settled to require any reiteration."::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 11
18. Their lordships of the Hon'ble Supreme Court in the case of Subramanian Swamy vs. Manmohan Singh and another, reported in .
(2012) 3 SCC 64 have held that though term "cognizance" has not been statutorily defined, yet judicial pronouncements give it a definite meaning and connotation. Cognizance broadly means taking judicial notice by competent court of a cause or matter presented before it so as to decide whether there is basis for initiating proceedings for judicial determination.
of Their lordships have further held that it is not open for the Court to analyze the evidence produced at that stage and come to the conclusion rt that no prima facie case is made out for proceeding further in the matter.
However, before issuing the process, it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. It has been held as under:
"34. The argument of the learned Attorney General that the question of granting sanction for prosecution of a public servant charged with an offence under the 1988 Act arises only at the stage of taking cognizance and not before that is neither supported by the plain language of the section nor the judicial precedents relied upon by him. Though, the term 'cognizance' has not been defined either in the 1988 Act or the CrPC, the same has acquired a definite meaning and connotation from various judicial precedents. In legal parlance cognizance is "taking judicial notice by the court of law, possessing jurisdiction, on a cause or matter presented before it so as to ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 12 decide whether there is any basis for initiating proceedings and determination of the cause or matter judicially".
43. Before proceeding further, we would like to add that at .
the time of taking cognizance of the offence, the Court is required to consider the averments made in the complaint or the charge sheet filed under Section 173. It is not open for the Court to analyse the evidence produced at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. However, before issuing the of process, it that it is open to the Court to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, find out whether an offence rt has been made out. On finding that such an offence has been made out the Court may direct the issue of process to the respondent and take further steps in the matter. If it is a charge-sheet filed under Section 173 CrPC, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court. Thus, it is not the province of the Court at that stage to embark upon and shift the evidence to come to the conclusion whether or not an offence has been made out."
19. Their lordships of the Hon'ble Supreme Court in the case of Sarah Mathew vs. Institute of Cardio Vascular Diseases, by its Director Dr. K.M. Cherian and others, reported in (2014) 2 SCC 62, have held that cognizance is taken when the Magistrate applies his mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term 'cognizance' and it has to be given the ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 13 same meaning wherever it appears in Chapter XXXVI. It has been held as under:
.
"31. It is now necessary to see what the words 'taking cognizance' mean. Cognizance is an act of the court. The term 'cognizance' has not been defined in the Cr.P.C. To understand what this term means we will have to have a look at certain provisions of the Cr.P.C. Chapter XIV of the Code deals with 'Conditions requisite for initiation of proceedings'. Section 190 of thereof empowers a Magistrate to take cognizance upon (a) receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information rt received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Chapter XV relates to 'Complaints to Magistrates'. Section 200 thereof provides for examination of the complainant and the witnesses on oath. Section 201 provides for the procedure which a Magistrate who is not competent to take cognizance has to follow. Section 202 provides for postponement of issue of process. He may, if he thinks fit, and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction, postpone the issue of process against the accused and either inquire into the case himself or direct an investigation to be made by a police officer for the purpose of deciding whether there is sufficient ground for proceeding. Chapter XVI relates to commencement of proceedings before the Magistrate. Section 204 provides for issue of process. Under this section if the Magistrate is of the opinion that there is sufficient ground for proceeding and the case appears to be a summons case, he shall issue summons for the attendance of the accused. In a warrant case, he may issue a warrant. Thus, after initiation of proceedings detailed ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 14 in Chapter XIV, comes the stage of commencement of proceedings covered by Chapter XVI.
34. Thus, a Magistrate takes cognizance when he applies his .
mind or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which is said to have been committed. This is the special connotation acquired by the term 'cognizance' and it has to be given the same meaning wherever it appears in Chapter XXXVI. It bears repetition to state that taking cognizance is entirely an act of of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's rt personal reasons.
41. There can be no dispute about the rules of interpretation cited by the counsel. It is true that there is no ambiguity in the relevant provisions. But, it must be borne in mind that the word 'cognizance' has not been defined in the Cr.P.C. This Court had to therefore interpret this word. We have adverted to that interpretation. In fact, we have proceeded to answer this reference on the basis of that interpretation and keeping in mind that special connotation acquired by the word 'cognizance'. Once that interpretation is accepted, Chapter XXXVI along with the heading has to be understood in that light. The rule of purposive construction can be applied in such a situation. A purposive construction of an enactment is one which gives effect to the legislative purpose by following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose or by applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (See: Francis Bennion on Statutory Interpretation). After noticing this definition given by Francis Bennion in National Insurance Co. Ltd. v. Laxmi Narain Dhut, this Court noted that :::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 15
"35. More often than not, literal interpretation of a statute or a provision of a statute results in absurdity. Therefore, while interpreting statutory provisions, the .
courts should keep in mind the objectives or purpose for which statute has been enacted."
20. Their lordships of the Hon'ble Supreme Court in the case of S.R. Sukumar vs. S. Sunaad Raghuram, reported in (2015) 9 SCC 609, of have held that taking cognizance of an offence means the Magistrate must have judicially applied the mind to the contents of the complaint and indicates that Magistrate takes judicial notice of an offence. A Magistrate rt takes cognizance of an offence when he decides to proceed against the person accused of having committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an offence.
"Cognizance" therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed.
Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. It has been held as under:
"8. Section 200 Cr.P.C. provides for the procedure for Magistrate taking cognizance of an offence on complaint. The Magistrate is not bound to take cognizance of an offence merely because a complaint has been filed before him when in fact the complaint does not disclose a cause of action. The language in Section 200 Cr.P.C. "a Magistrate taking cognizance of an offence on complaint shall examine upon oath ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 16 the complainant and the witnesses present, if any..." clearly suggests that for taking cognizance of an offence on complaint, the Court shall examine the complainant upon oath. The .
object of examination of the complainant is to find out whether the complaint is justifiable or is vexatious. Merely because the complainant was examined that does not mean that the Magistrate has taken cognizance of the offence. Taking cognizance of an offence means the Magistrate must have judicially applied the mind to the contents of the complaint of and indicates that Magistrate takes judicial notice of an offence.
9. Mere presentation of the complaint and receipt of the same rt in the court does not mean that the Magistrate has taken cognizance of the offence. In Narsingh Das Tapadia vs. Goverdhan Das Partani & Another., AIR 2000 SC 2946, it was held that the mere presentation of a complaint cannot be held to mean that the Magistrate has taken the cognizance.
11. Section 200 Cr.P.C. contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. Then normally three courses are available to the Magistrate. The Magistrate can either issue summons to the accused or order an inquiry under Section 202 Cr.P.C. or dismiss the complaint under Section 203 Cr.P.C. Upon consideration of the statement of complainant and the material adduced at that stage if the Magistrate is satisfied that there are sufficient grounds to proceed, he can proceed to issue process under Section 204 Cr.P.C. Section 202 Cr.P.C. contemplates 'postponement of issue of process'. It provides that the Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance may, if he thinks fit, postpones the issue of process for compelling the attendance of the person complained against, and either ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 17 inquire into the case himself, or have an inquiry made by any Magistrate subordinate to him, or an investigation made by a police officer, or by some other person for the purpose of .
deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds no sufficient ground for proceeding, he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 Cr.P.C. A Magistrate takes cognizance of an offence when he decides to proceed against the person accused of having of committed that offence and not at the time when the Magistrate is just informed either by complainant by filing the complaint or by the police report about the commission of an rt offence.
12. "Cognizance" therefore has a reference to the application of judicial mind by the Magistrate in connection with the commission of an offence and not merely to a Magistrate learning that some offence had been committed. Only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not. Under Section 200 Cr.P.C., when the complainant is examined, the Magistrate cannot be said to have ipso facto taken the cognizance, when the Magistrate was merely gathering the material on the basis of which he will decide whether a prima facie case is made out for taking cognizance of the offence or not. "Cognizance of offence" means taking notice of the accusations and applying the judicial mind to the contents of the complaint and the material filed therewith. It is neither practicable nor desirable to define as to what is meant by taking cognizance. Whether the Magistrate has taken cognizance of the offence or not will depend upon facts and circumstances of the particular case."::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 18
21. Their lordships of the Hon'ble Supreme Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation, reported in .
(2015) 4 SCC 609, have held that sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses of commission of an offence and is required to form such an opinion in this respect. It has been held as under:
"48.
rt Sine Qua Non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders. Therefore, cognizance can be taken even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards."
22. In the instant case, there is nothing on record to suggest that the learned Chief Judicial Magistrate has considered whether the ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 19 complaint disclosed commission of offence or not. He was required to form a definite opinion before summoning the accused after applying his mind to .
the contents of the complaint.
23. Their lordships of the Hon'ble Supreme Court in the case of Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, reported in (2015) 3 SCC 123, have held that cognizance is a process where the court takes judicial notice of an offence so as to initiate proceedings in of respect of the alleged violation of law. At the stage of taking cognizance of a case what is to be seen is whether there is sufficient ground for taking rt judicial notice of an offence with a view to initiate further proceedings. It has been held as under:
" 10. At the stage of taking cognizance of a case what is to be seen is whether there is sufficient ground for taking judicial notice of an offence with a view to initiate further proceedings. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd. and others[1], this Court has analysed the process and it has been held as follows:
"19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes "to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiate proceedings in respect of such offence said to have been committed by someone.
20. "Taking cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 20 applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine .
qua non or condition precedent for holding a valid trial.
Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance."
of
11. The above view has been further endorsed in Bhushan Kumar and another v. State (NCT of Delhi) and another[2] holding that:
rt "11. In Chief Enforcement Officer v. Videocon International Ltd. (SCC p. 499, para 19) the expression "cognizance" was explained by this Court as [pic]"it merely means 'become aware of' and when used with reference to a court or a Judge, it connotes 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code."::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 21
12. In Smt. Nagawwa v. Veeranna Shivalingappa Kinjalgi and others[3], the extent to which the Magistrate can go at the stage of taking cognizance has been discussed. To quote:
.
"5. ... It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a of probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in rt the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. ..."
13. Cognizance is a process where the court takes judicial notice of an offence so as to initiate proceedings in respect of the alleged violation of law. The offence is investigated by the police. No doubt, the court is not bound by the report submitted by the police under Section 173(2) of Cr.PC. If the report is that no case is made out, the Magistrate is still free, nay, bound, if a case according to him is made out, to reject the report and take cognizance. It is also open to him to order further investigation under Section 173(8) of Cr.PC.
14. In the case before us, the learned Magistrate went through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 22 court is wholly unreasonable or there is non- consideration of any relevant material or there is palpable misreading of records, the revisional court is not justified in setting aside the .
order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. Revisional power of the court under Sections 397 to 401 of Cr.PC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is of sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is rt exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.
15. The whole purpose of taking cognizance of an offence under Section 190(1)(b) Cr.PC is to commence proceedings under Chapter XVI of the Cr.PC by issuing process under Section 204 Cr.PC to the accused involved in the case. No doubt, it is not innocence but involvement that is material at this stage. Once the legal requirements to constitute the alleged offence qua one of the accused are lacking, there is no point in taking cognizance and proceeding further as against him."
24. Their lordships of the Hon'ble Supreme Court in the case of Mehmood Ul Rehman vs. Khazir Mohammad Tunda and others, reported in (2015) 12 SCC 420, have held that where complaint on the face of it does not disclose commission of any offence, cognizance under Section 190(1) (a) Cr.P.C. must not be taken. The complaint must be simply rejected in such a case. Their lordships have further held that since it is a process of taking judicial notice of certain facts which constitute an ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 23 offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the .
inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. To set in motion the process of criminal law against a person is a serious matter. It has been held as under:
"[23] The extensive reference to the case law would clearly of show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered rt along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Limited, to set in motion the process of criminal law against a person is a serious matter.
[24] Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the Appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 Code of Criminal Procedure, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded Under Section 200 of Code of Criminal Procedure so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the Respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate."
25. The learned Single Judge of the Orissa High Court in the case of Makaradhwaj Sahu and another v. The State, reported in AIR 1954 ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 24 Orissa 175 has held that where a Forester reported to the Divisional Forest Officer who, in his turn, reported to the Police, and the Police, in their turn, .
after investigation charge-sheeted the accused persons under Section 186 IPC, the cognizance without complaint in writing of the officer concerned was without compliance with the provisions of Section 194 CrPC and was fatal to the prosecution. It has been held as under:
"2. In revision Mr. Sahu raised a very interesting point of law of and urged that the prosecution has not been validly instituted. It appears that the Forester reported to the Divisional Forest Officer who, in his turn, reported to the Police, and the Police, in their turn, after investigation charge-sheeted the accused persons. Reliance is placed on Section 195 of the Criminal rt Procedure Code which lays down that no Court shall take any cognizance of an offence under Section 186. I.P.C. except on the complaint in writing of the Officer concerned or of some one to whom he is subordinate. Admittedly, this provision has not been followed in this case. This Court has held in more than one case that non-compliance with the strict provisions of Section 195 is fatal to the prosecution and it cannot be said in this case that cognizance of the offence has been taken in accordance with law. I have therefore no doubt in my mind that the conviction of the petitioner under Section 186, I.P.C. is not sustainable and must be set aside."
26. The Learned Single Judge of Bombay High Court in Krishna Tukaram Jadhav and another v. The Secretary to the Chief Minister, Bombay State reported in AIR 1955 Bom. 315, has held that a complaint in writing by "the public servant concerned is a condition precedent to the cognizance being taken by a Magistrate of an offence mentioned in Section 195 (1) (a), Criminal P. C. and that condition must be strictly complied with. A complaint not by the public servant concerned or by some public servant to whom he is subordinate, but by a person who is merely authorised in writing to file a complaint in his own name is not a good ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 25 substitute for the requisite complaint so as to confer jurisdiction upon the Magistrate. Section 195, Criminal P. C. does not permit any delegation of .
authority by the public servant concerned. When the Legislature has thought it necessary to permit even a limited delegation to be made, an express provision to that effect has been made in the Code. The Learned Single Judge has held as under:
of "[4] A complaint in writing by "the public servant concerned is a condition precedent to the cognizance being taken by a Magistrate of an offence mentioned in Section 195 (1) (a) , Criminal P. C. and that condition must be strictly complied with. A complaint not by the public servant concerned or by rt some public servant to whom he is subordinate, but by a person who is merely authorised in writing to file a complaint in his own name is not a good substitute for the requisite complaint so as to confer jurisdiction upon the Magistrate. Section 195, Criminal P. C. does not permit any delegation of authority by the public servant concerned. When the Legislature has thought it necessary to permit even a limited delegation to be made, an express provision bo that effect has been made in the Code. In Section 476, Criminal P. C. which deals with the procedure of filing complaints in cases mentioned in Section 195, it is expressly provided by the first proviso that ".. . Where the. Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint. " The Legislature not having made any similar provision, it would be reasonable to hold that delegation of authority to file a complaint by the public servant concerned is not permissible. That view finds support in a Full Bench decision of this Court reported in -- 'punamchand Manek-lal. In re', AIR 1914 Bom 138 (A). It was observed in that case by Heaton J. that where an Income-tax Collector does not choose to give sanction to prosecute an accused, person as he could have done under Section 195 (b) and (c) , as they then stood, but he chooses to make a complaint, it is not permissible to him to delegate his authority. In that case the complaint was not lodged by the District Magistrate but by a certain Mr. Lakhia by order of the District Magistrate, and it was observed by Heaton J. In considering the validity of the proceedings started at the instance of Mr. Lakhia:
".. . It was argued that because the complaint, which was made against this applicant was lodged by a certain Mr. Lakhia by ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 26 order of the District Magistrate or the Collector, and because the Collector is a public servant to whom the Income-tax Collector is subordinate, therefore this complaint may be regarded as a complaint of the kind provided for in clause (a) of .
Section 195. But that clause provides that the public servant concerned may cither give a sanction or make a complaint and that seems to me to exclude the idea that a public servant may make a complaint by any form of delegation. It seems to me that he must make the complaint, if he wishes to take that course, personally. If he "does not wish to take that course personally, the delegation is obtained by giving the sanction. Similarly the Collector as superior officer, though personally no doubt he. might make the complaint, cannot delegate the of making of a com plaint to another. " Those observations in my judgment are very pertinent in the present case. [5] On behalf of the State reliance was sought to be placed upon certain observations made in a judgment of this Court reported in --'in re, Aparao', AIR 1918 Bom 141 (B). That was a rt case in which a District Judge forwarded to the District Magistrate a copy of his judgment with a letter in which he called attention to remarks relating to forgery of a will and requested the latter to take up the matter for prompt investigation. Without examining the District Judge on oath in support of the tatements in his letter, the District Magistrate ordered a police investigation and treating the letter as a complaint, he brought the case for trial before a competent Magistrate. The accused applied to the High Court in revision and it was held that the failure to examine the District Judge on oath was an irregularity of a kind which came within those enumerated in clause (a) of Section 537, Criminal P. C. , and that, therefore, the proceedings against the accused were properly initiated. The point of law decided in that case is not likely to arise, since the amendment to Section 200, Criminal P. C. which has obviated the necessity of examining public servants on oath when they file complaints in their official capacity. But reliance was sought to be placed upon the observations made at p 142 where Heaton J. observed that the real purpose of the provisions of Section 195 was that no man concerned or supposed to be concerned in any of the offences enumerated in Section 195 when this supposed offence arises in connection with a case or with judicial proceedings and so forth shall be proceeded against unless the Court or officer concerned indicates that he thinks the case ought to be inquired into. Section 195 (a) before it was amended in 1923 provided that no Court shall take cognizance of any offence punishable under Section 172 to 188, Penal Code except with the previous sanction or on the complaint of the public servant concerned or of some other public servant to whom he was subordinate. It was possible, before the Code was amended in ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 27 the year 1923, for a public servant to give sanc tion for prosecution for offences specified in that sub section and no form of sanction was provided by the Code of Criminal Procedure. In those circum stances if there was evidence to .
indicate that the public servant concerned dusired that the offender, should be prosecuted, that was sufficient compliance with the terms of Section 195 and a sanction may be deemed to be given. The Legislature has now deleted the words "with the previous sanction or in the section as it stood at the date when the case in 'in re Aparao (B) ' was decided. The obser vations made in that case can have no validity since the amendment of the Code of Criminal Procedure in the year 1923.
of [6] Reliance was also sought to be placed upon a judgment of a single Judge of the Allahabad High Court reported in -- 'barkat v. Emperor', AIR 1943 All 6 (C). Allsop J. who decided that case appears to have taken the view that the expression 'complaint' used in Section 195 (1) (a) was not intended to be used in the rt sense of a complaint as defined in Section 4 (1) (h) , Criminal P. C. In the view of the learned Judge the intention of Section 195 is only that Magistrate should not punish any person except at the instance of the public officer concerned or his superior, and he did not think that the term' 'complaint' was used in the technical sense in which it was defined in Section 4, With great respect to the learned Judge I am unable to agree with that view. When the Legislature makes the jurisdiction oe a criminal Court dependent upon a complaint in writing by the public servant concerned, you cannot substitute the complaint by some other information or report--not of the 'public servant concerned' but of some other person who has moved the Magistrate at the instance of the public servant--and say that the requirements of the statute are complied with. If the Legislature has provided a condition precedent to the exercise of jurisdiction by a Court, die condition -precedent must be strictly complied with and a substitute cannot in my judgment avail the Magistrate to assume jurisdiction. It is true that the view taken by Allsop J. appears io have met with approval of a Division Bench of the Saurashtra High Court presided over by Divatia C. J. In -- 'state v. Nandlal', AIR 1951 Sau 8 (D). The learned Chief Justice in delivering the judgment of the Court does not appear to have given any additional reasons besides those given by Allsop J. In 'barkat v- Emperor (C) '. I do not think that the view which appealed to the learned Chief Justice can be accepted."
27. The complaint has neither been lodged by Insp. Jagdish Chand nor by some public servant to whom he was administratively subordinate ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 28 or other police officers/officials present in the Police Station (SV & ACB), including Superintendent of Police (SV & ACB). The complaint has been .
filed under the signatures of SHO, Police Station Dharamshala. The Superintendent of Police could not delegate the power to SHO, PS Dharamshala to file the complaint under Section 186 IPC. Thus, the learned Chief Judicial Magistrate, Kangra at Dharamshala has no jurisdiction to take cognizance.
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28. A Division Bench of the Saurashtra High Court in State v.
Kathi Unad Ranning and others reported in AIR 1955 (Saurashtra) 10, rt has held that before starting a prosecution for an offence under Section 186 IPC, a compliance with the provisions of Section 195 (1) Cr.P.C. is a condition precedent to the Court assuming jurisdiction and failure to comply with these provisions will vitiate the entire trial as without jurisdiction. The Division Bench has held as under:
"(5) The Advocate-General next contended that if there was an irregularity in the complaint, it was cured by Section 537, Criminal P. C. and referred to 'AIR 1943 All 6 (B)', cited above.
A compliance with the provisions of Section 195(1) is a condition precedent to the Court assuming jurisdiction and failure to comply with those provisions would vitiate the entire trial as without jurisdiction and it is doubtful whether Section 537 can be pressed into service to cure a defect of jurisdiction.
Moreover assuming that the learned Advocate-General's contention is well founded it is fat no assistance to him. Section 537 comes into play, when in spite of a procedural irregularity the appellate Court confirms the order of the lower Court, as was so done in 'AIR 1943 All I (B)', upon which the learned Advocate-General relied."
29. The learned Single Judge of the Calcutta High Court in the case of Basanta Kumar Gon v. The State, reported in AIR 1956 Cal 118, has held that a Magistrate cannot take cognizance of an offence under ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 29 Section 186 of the IPC, unless there is a complaint either by the public servant concerned or by some other officer, to whom he is subordinate. The .
Learned Single Judge has held as under:
"[6] It appears to me that there is substance in Mr. Banerjee's contention. The real complaint in this case is that there was obstruction to a public servant in the discharge of public functions. Now it is an offence which is covered by Section 186, I.P.C. That section requires that before a prosecution for such obstruction can be launched there must be a previous complaint made either by the public servant concerned or by of some officer to whom the public servant is subordinate. Section 195 (1) (a) lays down that before cognizance can be taken of an offence under Section 186 and other cognate sections of the Indian Penal Code, there must be a complaint by the public servant concerned or by some public servant to rt which the public servant is subordinate. As a matter of fact, in the present case, there has been no such complaint and in that view the Magistrate felt compelled to acquit the accused petitioner.
I think it cannot be said that since the petitioner appeared before an attestation officer although on invitation and behaved in a manner which did not redound to his credit, he should be held guilty under Section 448, I. P. C. Under the latter charge there must be an un-lawful entry and there must be proof of one or other of the intentions mentioned in Section 441 of the Code.
It has to be found upon evidence that the person concerned entered a place which was in the possession of another and that the entry was made with a view to causing insult, annoyance or injury to the person concerned. I do not think it possible to say on the evidence in the case that there was such intention present on the part of the petitioner."
30. Their Lordships of Hon'ble Supreme Court in the case of Daulat Ram v. State of Punjab reported in AIR 1962 SC 1206 have held that the offence under Section 182 IPC is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 30 complaint in writing should be made by the Tehsildar as the public servant concerned under Section 182 IPC, and not leave it to the police to put a .
charge sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 IPC without the Tehsildar's complaint in writing was therefore without jurisdiction ab initio. Their lordships have held as under:
"[4] Now the offence under S. 182 of the Penal Code, if any, of was undoubtedly complete when the appellant had moved the Tehsildar for action. Section 182 does not require that action must always by taken if the person who moves the public servant knows or belives that action would be taken. In making his report to the Tehsildar therefore if the appellant rt believed that some action would be taken (and he had no reason to doubt that it would not) the offence under that section was complete. It was therefore incumbent, if the prosecution was to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned in this case. On the other hand what we find is that a complaint by the Tehsildar was not filed at all, but a charge sheet was put in by the Station House Officer. The learned counsel for the State Government tries to support the action by submitting that S. 195 had been complied with inasmuch as when the allegations had been disproved, the letter of the Superintendent of Police was forwarded to the Tehsildar and he asked for" a calendar."(Sic This paper was filed along with the charge sheet and it is stated that this satisfies the requirements of S. 195. In our opinion, this is not a due compliance with the provisions of that section. What the section Contemplates is that the complaint must be in writing by the public servant concerned and there is no such compliance in the present case. The cognizance of the case was therefore wrongly assumed by the court without the complaint in writing of the public servant namely the Tehsildar in this case. The trial was thus without jurisdiction ab initio and the conviction cannot be maintained."
31. The Learned Single Judge of Madras High Court in the case of Sudalaimadam and another vs. The State, reported 1985 Crl. LJ 1310, has held that the complaint referred to in S. 195, Cr.P.C. is a complaint to ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 31 the Court and not a complaint to the Police. Inasmuch as the complaint in this case for an offence under Section 186 IPC was preferred nor before the .
Court but before the Sub Inspector of Police by the concerned, Special Deputy Tehsildar who was said to have been obstructed by the accused, the prosecution under Section 186 IPC could not stand. The Learned Single Judge has held as under:
"[4] It is pointed out by the learned Public Prosecutor, that the of said V. V. Sundararajan has given a complaint in writing to the police and it is on that basis the police have filed a charge sheet and hence there is due compliance of the provisions of S. 195(1)(a)(i), Crl. P.C. The contention has no substance. S. 2(d), Crl. P.C. defines 'complaint' as 'any allegation made orally or in rt writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
Hence, the complaint referred to in S. 195, Cr.P.C. is a complaint to the Court and not a complaint to the Police. No doubt, explanation to S. 2(d) makes any report made by a police officer in case which discloses, after investigation, the commission of a non-cognizable offence to be a complaint. But in that case, the police officer by whom such report is made shall be deemed to be the complainant. What S. 195 of the Code of Criminal Procedure requires is that the complainant before the Court must be the officer concerned. Inasmuch as the complaint in this case for an offence under S. 186, I.P.C. has not been preferred before the Court by the concerned special Deputy Tahsildar, B Bond check post, Puliyari, who is said to have been obstructed by the petitioners-accused, this prosecution under S. 186, I.P.C. cannot stand."
32. The Learned Single Judge of Calcutta High Court in the case of Mrityunjoy Das v. State, reported in 1987 Crl. L.J. 909, has held that cognizance taken by Magistrate without a written complaint is illegal. The Learned Single Judge has held as under:
" [6] Be that as it may from the F.I.R. it becomes quite clear that an attempt was made in this case to evade the provision of Section 195, Cr.P.C. As per the F.I.R. the present petitioners obstructed the process server in his bid to deliver possession of the decretal shop room, threatened to assault and kill him and ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 32 dared him to deliver possession and the petitioner 1, Mrityunjoy pushed him aside. These allegations are covered by Sections 186 and 189 if not Section 183 also of the Penal Code and Sections 353 and 506 of the I.P.C. were resorted to .
presumably for evading the provisions of Section 195, Cr.P.C.
In the absence of a written complaint, therefore, cognizance should not have been taken in this case by learned Magistrate. The case, therefore, should not be allowed to go on. The proceeding of the G.R. Case No. 341 of 1977 of the Court of the learned Judicial Magistrate, Nabadwip is hereby quashed and the rule is hereby made absolute.
Send the case records back to the learned Court immediately."
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33. Their lordships of the Hon'ble Supreme Court in the case of State of U.P. vs. Mata Bhikh and others, reported in (1994) 4 SCC 95 rt have held that the Court is barred from taking cognizance of the offences mentioned therein except on a written complaint by 'the public servant concerned' and private complaint is not maintainable. if the public servant concerned does not or refuses to make a complaint, some other public servant to whom he is administratively subordinate, could prefer a complaint. Their lordships have held as under:
"[6] The object of this section is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein. The provisions of this section, no doubt, are mandatory and the court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing of 'the public servant concerned' as required by the section without which the trial under Section 188 of the Indian Penal Code becomes void ab initio. See Daulat Ram v. State of Punjab. To say in other words a written complaint by a public servant concerned is sine qua non to initiate a criminal proceeding under Section 188 of the Indian Penal Code against those who, with the knowledge that an order has been promulgated by a public servant directing either 'to abstain from a certain act, or to take certain order, with certain property in his possession or under his management' disobey that order. Nonetheless, when the court in its discretion is disinclined to prosecute the wrongdoers, no ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 33 private complainant can be allowed to initiate any criminal proceeding in his individual capacity as it would be clear from the reading of the section itself which is to the effect that no court can take cognizance of any offence punishable under S. .
172 to 188 of the Indian Penal Code except on the written complaint of 'the public servant concerned' or of some other public servant to whom he (the public servant who promulgated that order) is administratively subordinate. [7] A cursory reading of Section 195 (l) (a) makes out that in case a public servant concerned who has promulgated an order which has not been obeyed or which has been disobeyed, does not prefer to give a complaint or refuses to give a complaint then it is open to the superior public servant to of whom the officer who initially passed the order is administratively subordinate to prefer a complaint in respect of the disobedience of the order promulgated by his subordinate. The word 'subordinate' means administratively subordinate i. e. some other public servant who is his official superior and rt under whose administrative control he works."
34. The Learned Single Judge of Delhi High Court in the case of Gurcharan Singh and another v. State, reported in 2002 Crl. LJ 2130 has held that the complaint should be filed by the concerned public servant with a prayer to take action against the accused and whenever such complaint under Section 195 Code of Criminal Procedure is filed along with charge-sheet under Section of the 173 Code of Criminal Procedure, the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage. The learned Single Judge has held as under:
"[7] In this case, there was nothing in the complaint quoted above to indicate that the complaint was made to the Magistrate for taking action under Section 186 Indian Penal Code. Mere consent of the SHO for prosecution of the accused cannot be construed as the complaint. Further, there is nothing on record to indicate that the cognizance was taken by the Magistrate on the basis of complaint under Section 195 Code of Criminal Procedure Therefore, the charge under Section 186 Indian Penal Code against the petitioner is not sustainable. It is needless to observe that in all such cases, the complaint should be filed by the concerned public servant with ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 34 a prayer to take action against the accused and whenever such complaint under Section 195 Code of Criminal Procedure is filed along with charge-sheet Under Section 173 Code of Criminal Procedure, the Courts while taking cognizance, .
should also take note of such complaint, to avoid any technical objection at a later stage."
35. Their Lordships of Hon'ble Supreme Court in the case of P.D. Lakhani and another v. State of Punjab and another, reported in (2008) 5 SCC 150 have explained the term "complaint in writing of the public of servant concerned" under section 195 (1) (a) (i) Cr.P.C. Their lordships have held that there was no provision for delegation of power under section 195 rt (1) (a) (i) Cr.P.C. and the proceedings initiated under Section 182 IPC against complainant company by SHO were incompetent. Their lordships have held as under:
"13. The report of compliance by Gian Singh was made to the CIA staff. CIA staff, in turn, placed it before the Senior Superintendent of Police. The proceedings, therefore, were, indisputably, initiated by the Senior Superintendent of Police, Jallandhar and not by the Station House Officer,. The Station House Officer would have jurisdiction to investigate into the matter provided a first information report was lodged by him in terms of the complaint made by the appellant No.2. Whatever action was taken in the matter was pursuant to the order of the Senior Superintendent of Police Jalandhar.
14. The High Court, in our opinion, thus, committed a manifest error in so far as it held that the as the complaint was addressed to the SHO, he was the appropriate authority to lodge a complaint in respect of an offence punishable under Section 182 of the Indian Penal Code.
15. The fact that the search was made pursuant to the directions issued by the Senior Superintendent of Police, Jalandhar is not in dispute. Section 195 contains a bar on the Magistrate to take cognizance of any offence. When a complaint is not made by the appropriate public servant, the Court will have no jurisdiction in respect thereof. Any trial held pursuant thereto would be wholly without jurisdiction. In a case of this nature, representation, if any, for all intent and ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 35 purport was made before the Senior Superintendent of Police and not before the Station House Officer. No complaint, therefore, could be lodged before the learned Magistrate by the Station House Officer. Even assuming that the same was done .
under the directions of Senior Superintendent of Police, Jallandhar, Section 195, in no uncertain terms, directs filing of an appropriate complaint petition only by the public servant concerned or his superior officer. It, therefore, cannot be done by an inferior officer. It does not provide for delegation of the function of the public servant concerned.
16. We may notice that in terms of sub-section (3) of Section 340 of the Code, a complaint may be signed by such an officer of as the High Court may appoint if the complaint is made by the High Court. But in all other cases, the same is to be done by the presiding officer of the court or by such officer of the court as it may authorize in writing in this behalf. Legislature, thus, wherever thought necessary to empower a court or public rt servant to delegate his power, made provisions therefor. As the statute does not contemplate delegation of his power by the Senior Superintendent of Police, we cannot assume that there exists such a provision. A power to delegate, when a complete bar is created, must be express; it being not an incidental power."
36. Their Lordships of Hon'ble Supreme Court in the case of C. Muniappan and others v. State of Tamilnadu, reported in (2010) 9 SCC 567 have held that the legislative intent behind Section 195 (1) (a) (i) Cr.P.C. read with section 188 is that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. There must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 36 conviction will be void ab initio being without jurisdiction. Their lordships have held as under:
.
"33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.PC are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction."
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37. The complaint filed under the signatures of SHO, PS Dharamshala cannot be termed as complaint under Section 195 (1) (a) rt Cr.P.C. The complaint could only be filed by the officer concerned.
38. Now, the Court will advert to whether there was sufficient material to proceed against the accused for committing offence under Section 186 IPC. In the complaint based on DDR Nos. 12(A) & 15(A), it is stated that Insp. Jagdish Chand and other staff members were present in Police Station (SV & ACB), Dharamshala and the accused initially entered the Police Station and thereafter went to the Office of Superintendent of Police (SV & ACB). They disrupted the government administration for half an hour. It is not stated that what duties were being discharged by those police officers/officials present in the Police Station and which one of them was obstructed voluntarily from discharging official functions. In order to attract the provisions of Section 186 IPC, it has to be seen whether the public servant in the discharge of his public functions has been voluntarily obstructed or not. It is reiterated that what mentioned in the complaint is that the government administration was disrupted for half an hour. Merely the disruption of government administration without mentioning that the ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 37 public servants were obstructed voluntarily from discharge of their public functions would not attract Section 186 IPC.
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39. The learned Single Judge of the Patna High Court in the case of Janki Prasad Tibrewal and others v. The State of Bihar, reported in 1975 Crl. LJ 575 has held that the expression 'obstruct' used in Section 186 of the Indian Penal Code envisages actual resistance and obstacle in the way of public servant and it implies use of criminal force. It has been of held as under:
"[7] Considering these decisions it is clear that the real test is whether the facts alleged against an accused disclosed two rt distinct offences or whether the facts disclosed primarily an offence for which a complaint by a public servant is required, The main allegation which has been made in this case against the petitioners is that they voluntarily obstructed the Dalpati and the Mukhia who are public servants in the discharge of their duties as such. The expression 'obstruct' used in Section 186 of the Indian Penal Code envisages actual resistance and obstacle in the way of public servant and it implies use of criminal force. So if these petitioners are alleged to have assaulted the Dalpati and the Mukhia in the course of voluntarily obstructing the public servant from discharging their duties, the offences under Sections 323, 324 and 353 of the Indian Penal Code are so connected with the primary offence of Section 186 of the Indian Penal Code that it is difficult to say that those offences constituted separate offences other than an offence under Section 186 of the Indian Penal Code. The very fact of obstruction in the instant case implies assault and hurt to the public servant concerned and so the primary offence alleged to have been committed by these petitioners is one under Section 186 of the Indian Penal Code and if cognizance is taken of the offences on the basis of police report only under Sections 323, 324 and 353 of the Indian Penal Code, it will amount to circumventing the provisions of Section 195 of the Code which is not permissible in law."
40. What emerges from the discussion is that Section 195 (1)(a) of Cr.P.C. has not been complied with. Section 195 Cr.P.C. is mandatory.
The power to file the complaint could not be delegated to SHO, Police ::: Downloaded on - 15/04/2017 20:29:07 :::HCHP 38 Station, Dharamshala. The complaint should have been initiated at the instance of the public servant concerned or his superior officer. Thus, in .
view of the matter, the learned Chief Judicial Magistrate, Dharamshala had no jurisdiction in the case as there was no complaint in writing before him by the public servant concerned or his superior. The material placed on record was not sufficient to initially permit the investigation of the case and thereafter to summon the accused and put them to notice of accusation.
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41. Accordingly, the petition is allowed. The complaint filed by SHO, PS Dharamshala before the learned Chief Judicial Magistrate, rt Dharamshala vide Annexure P-1, summoning order dated 10.3.2014, notice of accusation dated 7.11.2015 and other consequential orders are quashed and set aside. Pending application(s), if any, also stands disposed of.
May 30, 2016, ( Rajiv Sharma ),
(karan) Judge.
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