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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.

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 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.

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.

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.