Kiran Raj

The Supreme Court Division Bench of Justice J.B. Pardiwala and Justice R. Mahadevan has held that the registration of an FIR for offences under Sections 186 and 341 of the Indian Penal Code was improper when initiated on the basis of a complaint filed under Section 195 of the Code of Criminal Procedure. The Court directed that the trial court must consider the applicability of Section 195 at the stage of cognizance and clarified that, in such cases, the appropriate course was for the Magistrate to directly take cognizance rather than ordering police investigation under Section 156(3) of the Cr.P.C. The Bench concluded by leaving it open to the petitioner to raise the bar of Section 195 at the trial stage and directed circulation of the judgment to all High Courts across the country.

The matter originated from allegations against a police officer who was accused of obstructing a process server in the discharge of his official duties. The process server, then posted at the Nazarat Branch of Shahdara, was required to serve summons and warrants at Police Station Nand Nagri on 3 October 2013. According to the complaint, the process server encountered resistance from officials when attempting to secure acknowledgment of the documents. The complaint alleged that the petitioner, who was then serving as the Station House Officer, not only abused the process server but also forced him to stand with his hands raised and later sit on the floor for several hours before acknowledgment was finally made by another officer.

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The process server reported the incident to the District and Sessions Judge of Shahdara, who assigned the matter to the Administrative Civil Judge. The latter, acting under Section 195 Cr.P.C., lodged a private complaint before the Chief Metropolitan Magistrate (CMM), Shahdara. On 28 November 2013, the CMM directed registration of an FIR under Sections 186, 341, and 342 IPC and further directed that the investigation be conducted by an officer not below the rank of ACP under the supervision of the Additional Commissioner of Police. The order was later challenged before the Sessions Court through a Criminal Revision Application, which was dismissed on 3 December 2013. The Sessions Judge held that the allegations, supported by the inquiry report of the Additional DCP, prima facie established fault on the part of the SHO.

Subsequently, the matter was carried to the Delhi High Court, which also dismissed the writ petition challenging the CMM’s order. The High Court observed that prima facie obstruction had been caused in the discharge of the process server’s duties and that the CMM had correctly directed registration of the FIR. It held that there was no illegality in directing investigation by an ACP and that the complaint under Section 195 Cr.P.C. was validly instituted by the Administrative Civil Judge, who was the superior of the process server.

In the present proceedings before the Supreme Court, the petitioner’s counsel argued that even if the complaint was accepted as true, the ingredients of Section 186 IPC were not disclosed, as obstruction under that section requires an element of criminal force. It was further contended that an FIR could not have been directed under Section 156(3) Cr.P.C. in view of the bar under Section 195 Cr.P.C., which mandates that offences under Section 186 IPC can only be taken cognizance of on a written complaint by the concerned public servant or his superior.

The Court noted that the Administrative Civil Judge had indeed filed a valid complaint under Section 195(1)(a), but the CMM erred in directing a police investigation rather than taking cognizance directly under Section 204 Cr.P.C. The Court pointed out that this error had unnecessarily prolonged proceedings for twelve years.

The Bench recorded that “the Chief Metropolitan Magistrate should have straightaway taken cognizance upon the said complaint and issued process to the petitioner-herein. Asking the police to investigate the complaint under Section 156(3) of the Cr.P.C. was a very serious error.” It noted that the proper course in such matters was for the Magistrate to issue process directly, particularly because the complaint was filed by a Civil Judge and verification of contents on oath was not necessary.

The Court observed that “if an accused person, in situations such as the present, obstructs a public servant in the discharge of his public function, the accused person commits two offences. One offence committed by him is the alleged obstruction which comes within Section 186 I.P.C. and the other offence committed by him is the offence of having been guilty of undermining the authority of the court.”

On the meaning of obstruction under Section 186 IPC, the Court referred to multiple precedents and concluded that “the expression ‘obstruction’ used in Section 186 of the I.P.C. is not confined to physical obstruction. It need not necessarily be an act of use of criminal force. The act need not be a violent one. It is enough if the act complained of results in preventing a public servant in discharge of his lawful duties.”

The Bench further noted, “any act of causing impediment by unlawfully preventing public servant in discharge of his functions would be enough to attract Section 186 of the I.P.C. Any other interpretation would be to encourage people to take the law into their hands, frustrate the investigation of the crimes and thwart public justice.”

On the scope of Section 195 Cr.P.C., the Court held, “if in truth and substance, an offence falls in the category of Section 195, it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts.” The Bench explained that severance of distinct offences is not permissible if it circumvents the protection under Section 195. The test to be applied was whether the facts primarily and essentially disclose an offence requiring a public servant’s complaint.

The Court clarified that the bar under Section 195 does not prevent police investigation, stating, “There is no bar against the registration of a criminal case or investigation by the police agency or submission of a report by the police on completion of the investigation, as contemplated by Section 173 of the Cr.P.C.” However, it stated that the bar applies strictly at the stage of cognizance.

The Court criticized the prolonged delay, remarking, “Look at the mess created by one and all over a period of twelve years. We are talking about upholding and maintaining the dignity of court. This entire prosecution for the alleged offence is to uphold the dignity of court. However, it has been twelve years but no one has been able to uphold the dignity of the court by proceeding in the right direction.”

Summarizing the law, the Bench stated that “the provisions of Section 195 Cr.P.C. 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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In conclusion, the Court held that Section 195 Cr.P.C. bars cognizance of an offence under Section 186 IPC unless there is a written complaint from the concerned public servant or his superior. It recorded, “Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein.” The Court clarified that while investigation by police is permissible, the embargo under Section 195 comes into operation only when cognizance is sought to be taken.

The Bench disposed of the petition by stating, “we dispose of this petition leaving it open to the petitioner to raise the contention as regards the bar of Section 195 of the Cr.P.C. before the trial court if at all, at the end of the investigation, chargesheet is filed for the offences enumerated above in the FIR.” Further, the Court directed circulation of its judgment by stating, “Registry shall circulate one copy each of this judgment to all the High Courts.”

Case Title: Devendra Kumar v. State (NCT of Delhi) & Anr.

Neutral Citation: 2025 INSC 1009

Case Number: Special Leave Petition (Criminal) No. 12373 of 2025

Bench: Justice J.B. Pardiwala, Justice R. Mahadevan