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"It is true that most of the allegations in this case upon which the charge under s. 353, Indian Penal Code is based are the same as those constituting the charge under s. 186, Indian Penal Code but it cannot be ignored that ss. 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under s. 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with contempt of the lawful authority of public servants, while s. 353 occurs in Ch. XVI regarding the offences affecting the human body."

16.In the present case, qua the offence under section 186 IPC, it is imperative to understand certain preconditions attached with the prosecution under Section 186 IPC so as to give credence to further discussion. Section 195 (1) (a) of the Code of Criminal Procedure bars court to take cognizance of an offence punishable under Section 186 IPC unless a complaint has been made in writing by the public servant or by another public servant to whom he is subordinate. In Makardhwaj vs. State AIR 1954 Orissa 175, it has been held, "non-compliance of the requirements of Section 195 Cr.P.C. is fatal to the prosecution of offence punishable under Section 186 IPC."

17.It has been the argument of the Ld. Counsel for the accused that there was no sanction /complaint made under section 195 Cr.P.C. and hence the accused should not have been prosecuted. Ld. Counsel has placed his reliance upon Sachin and Others Versus State of NCT of Delhi Crl. Rev.P. 569/2017 whereby the Hon'ble High Court of Delhi has decided that: -

"With regard to the charges framed under sections 186/353 IPC is concerned, said charges could not have been framed in the absence of compliance with section 195 Cr. P.C. No court can take cognizance of an offence under section186 IPC unless a complaint is made by the proper officer in the proper format as prescribed under section 195 Cr. P.C. Breach of section 195 Cr. P.C. renders the action void ab initio. Non-compliance of section 195 Cr. P.C. is a non-curable defect and renders the proceeding void ab initio. Further, it may be seen that section 353 IPC has also been invoked in the subject case which is, in fact, an extension of section 186 IPC. The allegations with regard to section 353 IPC, as contained in the subject FIR, really fall in the nature of an offence under section 186 IPC. As noticed above, no Court could have taken cognizance of the offence under section 186 IPC except on a complaint of a proper officer made under section 195 Cr. P.C. Further, it may be seen that the entire proceedings smack of arbitrariness and vindictiveness on the part of the complainant and falls squarely within the parameters of the decision of the Supreme Court in Manoj Sharma v. State, (2008) 16 SCC 1 and Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30 : AIR 2016 SC 4245, wherein, the Supreme Court has held that substantive justice requires that proceedings of such a mala fide nature should be quashed in exercise of powers under section 482 Cr. P.C."

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 IPC. 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 the complaint under Section 195 Cr.P.C. Therefore, the charge under Section 186 IPC 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 a prayer to take action against the accused and whenever such complaint under Section 195 Cr. P.C. is filed along with charge-sheet under Section 173 Cr. P.C., the Courts while taking cognizance, should also take note of such complaint, to avoid any technical objection at a later stage..."