Supreme Court of India
DEVENDRA KUMARversusTHE STATE (NCT OF DELHI) & ANR.
- Citation
- 2025 INSC 1009
- Decided
- 20 August 2025
- Disposal
- Disposed off
- Bench
- B PARDIWALA
Holding
The CMM erred in directing police investigation under s.156(3) CrPC; it should have taken cognizance of the complaint and issued process, while s.195 CrPC does not preclude police investigation but bars the court from taking cognizance without a written complaint from the public servant.
Summary
The petitioner, a police SHO, was alleged to have misbehaved with a process server who was serving court summons, leading the process server to lodge a private complaint under s.195 CrPC. The Chief Metropolitan Magistrate (CMM) ordered registration of an FIR under s.186 and s.341 IPC and directed police investigation under s.156(3) CrPC, rather than taking cognizance and issuing process. The petitioner challenged this order, arguing that s.186 IPC does not require physical obstruction, that the CMM erred in involving police, and that s.195 CrPC barred the FIR. The Supreme Court held that "obstruction" under s.186 IPC includes non‑physical acts that prevent a public servant from performing duties, and that the CMM should have taken cognizance and issued process, making the direction to investigate a serious error. However, the Court clarified that s.195 CrPC does not bar police investigation and that the petition can raise the bar of s.195 before trial if a charge‑sheet is filed. Consequently, the petition was disposed, leaving the matter to be dealt with at the trial stage.
Issues considered
- The scope of "obstruction" under s.186 IPC and whether non‑physical acts constitute the offence.
- Whether a magistrate may direct police investigation under s.156(3) CrPC for a complaint lodged by a civil judge for offences under s.186 and s.341 IPC.
- The applicability of s.195 CrPC to the registration of FIR and taking cognizance of offences under s.186 IPC.
- The requirement of a written complaint by the public servant under s.195(1)(a)(i) CrPC for taking cognizance.
Legislation cited
- Code of Criminal Procedure, 1973s. 156(3), s. 190, s. 195, s. 204, s. 340
- Customs Act, 1962s. 133
- Indian Penal Code, 1860s. 172-188, s. 182, s. 186, s. 193-196, s. 199, s. 200, s. 205-211, s. 228, s. 297, s. 341, s. 342, s. 353, s. 500
Headnote
Issue for Consideration High Court affirmed the order passed by the CMM directing registration of the FIR against the petitioner for offences punishable u/ss.186 and 341, Penal Code, 1860. Whether the CMM erred in involving the police in a complaint lodged by a Civil Judge for u/ss.186 and 341 of the I.P.C; whether the CMM erred in asking the police to investigate the complaint u/s.156(3) of the Cr.P.C instead of taking cognizance upon the complaint and issuing process to the petitioner; scope of s.195, CrPC. Headnotes† Code of Criminal Procedure, 1973
Subjects
Section 195 CrPCObstructionObstruction in the discharge of public functionsVoluntary obstruction of public servantSection 186 IPCSection 341 IPCPrivate complaintPolice investigationSection 156(3) CrPCSection 340 CrPCSection 204 CrPCPublic servantCourt jurisdictionSplitting of offencesDistinct offencesCriminal Procedure Code
Judgment
[2025] 8 S.C.R. 1095 : 2025 INSC 1009
Devendra Kumar
v.
The State (NCT of Delhi) & Anr.
(Special Leave Petition (Criminal) No. 12373 of 2025)
20 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
High Court affirmed the order passed by the CMM directing
registration of the FIR against the petitioner for offences punishable
u/ss.186 and 341, Penal Code, 1860. Whether the CMM erred
in involving the police in a complaint lodged by a Civil Judge for
the offence punishable u/ss.186 and 341 of the I.P.C; whether
the CMM erred in asking the police to investigate the complaint
u/s.156(3) of the Cr.P.C instead of taking cognizance upon
the complaint and issuing process to the petitioner; scope of
s.195, CrPC.
Headnotes†
Code of Criminal Procedure, 1973 – s.195 – Scope – Penal Code,
1860 – ss.186, 341 – Petitioner-SHO allegedly misbehaved
with/detained the Respondent no.2-Process Server when he
visited the police station and insisted for receipt of summons –
Respondent no.2 brought alleged misconduct on part of the
petitioner to the notice of the District & Sessions Judge in the
form of voluntary obstruction said to have been caused in the
discharge of his public functions, who in turn assigned the
complaint to the Administrative Civil Judge who then lodged
a private complaint in the court of the CMM – However, the
CMM instead of taking cognizance upon the said complaint
and issuing process to the petitioner, directed registration of
FIR u/ss.186, 341, IPC – Order challenged by the petitioner
before Sessions Judge, rejected – High Court affirmed the
order passed by the CMM – Challenge to:
Held: 1.1 The word ‘obstruction’ in s.186 of the I.P.C is not confined
to physical obstruction only – Threats of violence made in such
a way as to prevent the public servant from carrying out his duty
might easily amount to an obstruction of the public servant – The
* Author
1096 [2025] 8 S.C.R.
Supreme Court Reports
expression ‘obstruction’ used in s.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 – Any act of causing impediment by
unlawfully preventing public servant in discharge of his functions
would be enough to attract s.186 of the I.P.C. [Paras 24, 29]
1.2 Petitioner’s acts prima facie, amount to obstructing the public
servant in the discharge of their public function – Therefore, the
complaint itself, does not suffer from any legal infirmity – However,
the CMM should have straightaway taken cognizance upon the
complaint and issued process to the petitioner – Asking the police
to investigate the complaint u/s.156(3) of the Cr.P.C. was a very
serious error committed by the CMM – There was no need to
involve the police in a complaint lodged by a Civil Judge for the
offence punishable u/ss.186 and 341 of the I.P.C. [Paras 30, 12]
1.3 s.195 of the Cr.P.C. does not bar the trial of an accused for a
distinct offence disclosed by the same set of facts and is not so
stated therein – s.195 also does not provide further that if in the
course of the commission of that offence, other distinct offences are
committed, the court concerned is debarred from taking cognizance
in respect of those offences as well – However, having said so, if
the perusal of the first information report makes it clear that the
offence u/s.186 of the I.P.C. is closely interconnected with another
distinct offence(s), which in this case is s.341 of the I.P.C. and it
cannot be split up, then in such circumstances, the bar of s.195 of
the Cr.P.C. will apply to such other distinct offence also. [Para 36]
1.4 s.195(1)(a)(i), Cr.P.C. bars the court from taking cognizance of
any offence punishable u/ss.172 to 188 respectively of the I.P.C.,
unless there is a written complaint by the public servant concerned
or his administrative superior, for voluntarily obstructing the public
servant from discharge of his public functions – Without a complaint
from the said persons, the court would lack competence to take
cognizance in certain types of offences enumerated therein. [Para 59]
1.5 If in truth and substance, an offence falls in the category of
s.195(1)(a)(i), 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 –
However, it also cannot be laid down as a straitjacket formula that
the Court, under all circumstances, cannot undertake the exercise
[2025] 8 S.C.R. 1097
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
of splitting up – It would depend upon the facts of each case, the
nature of allegations and the materials on record. [Para 59]
1.6 Severance of distinct offences is not permissible when it would
effectively circumvent the protection afforded by s.195(1)(a)(i) of
the Cr.P.C., which requires a complaint by a public servant for
certain offences against public justice – This means that if the core
of the offence falls under the purview of s.195(1)(a)(i), it cannot
be prosecuted by simply filing a general complaint for a different,
but related, offence – The focus should be on whether the facts,
in substance, constitute an offence requiring a public servant’s
complaint. [Para 59]
1.7 In the aforesaid context, the courts must apply twin tests –
First, the courts must ascertain having regard to the nature of the
allegations made in the complaint/FIR and other materials on record
whether the other distinct offences not covered by s.195(1)(a)(i)
have been invoked only with a view to evade the mandatory bar
of s.195 of the Cr.P.C. and secondly, whether the facts primarily
and essentially disclose an offence for which a complaint of the
court or a public servant is required. [Para 59]
1.8 Where an accused is alleged to have committed some offences
which are separate and distinct from those contained in s.195,
s.195 will affect only the offences mentioned therein – However,
the courts should ascertain whether such offences form an integral
part and are so intrinsically connected so as to amount to offences
committed as a part of the same transaction, in which case the
other offences also would fall within the ambit of s.195 of the
Cr.P.C – This would all depend on the facts of each case. [Para 59]
1.9 ss.195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not
control or circumscribe the power of the police to investigate, under
the Criminal Procedure Code – Once investigation is completed
then the embargo in s.195 would come into play and the Court
would not be competent to take cognizance – However, that Court
could then file a complaint for the offence on the basis of the
FIR and the material collected during investigation, provided the
procedure laid down in s.340 of the Cr.P.C. is followed. [Para 59]
1.10 It is left open to the petitioner to raise the contention as
regards the bar of s.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 in the FIR. [Para 60]
1098 [2025] 8 S.C.R.
Supreme Court Reports
Code of Criminal Procedure, 1973 – s. 195(1)(a)(i) – Bar under –
Object and intent behind, stated. [Para 43]
Word and Phrases - ‘obstruction’ – Penal Code, 1860 – s.186
vis-à-vis Customs Act, 1962 – s.133 - “whoever voluntarily
obstructs any public servant in the discharge of his
public functions” used in s.186; expression “if any person
intentionally obstructs any officer of customs” used in s.133
of the Customs Act, 1962:
Held: The expression ‘intentionally’ used in s.133 of the Customs
Act and the expression ‘voluntarily’ used in s.186 of I.P.C. connote
the same meaning – The expression ‘obstruction’ used in s.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 – Any
act of causing impediment by unlawfully preventing public servant
in discharge of his functions would be enough to attract s.186 of
the I.P.C. [Para 29]
Case Law Cited
Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [2005] 2
SCR 708 : AIR 2005 SC 2119 – followed.
Umashankar Yadav and Another v. State of U.P., 2025 SCC OnLine
SC 1066; Santosh Kumar Jain v. The State [1951] 1 SCR 303 :
(1951) 1 SCC 190; Collector of Customs and Central Excise v.
Paradip Port Trust [1990] 3 SCR 705 : (1990) 4 SCC 250; State of
U.P. v. Suresh Chandra Srivastava & Ors. [1984] 3 SCR 738 : AIR
1984 SC 1108; State of Karnataka v. Hemareddy & Anr. [1981] 2
SCR 695 : AIR 1981 SC 1417; Basir-ul-huq and Others v. State of
West Bengal [1953] 1 SCR 836 : (1953) 1 SCC 637; Durgacharan
Naik and Others v. State of Orissa [1966] 3 SCR 636 : AIR 1966
SC 1775; Govind Mehta v. The State of Bihar [1971] Supp. 1
SCR 777 : AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The
State of Gujarat [1971] Supp. 1 SCR 834 : AIR 1971 SC 1935;
Surjit Singh & Ors v. Balbir Singh [1996] 3 SCR 70 : (1996) 3
SCC 533; State of Punjab v. Raj Singh & Anr. [1998] 1 SCR 223
: (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy &
Ors. (2005) 7 SCC 352; M.S. Ahlawat v. State of Haryana & Anr.
[1999] Supp. 4 SCR 160 : AIR 2000 SC 168; Sachida Nand Singh
& Anr. v. State of Bihar & Anr. [1998] 1 SCR 492 : (1998) 2 SCC
[2025] 8 S.C.R. 1099
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
493; Daulat Ram v. State of Punjab [1962] Supp. 1 SCR 812 :
AIR 1962 SC 1206; State of Punjab v. Raj Singh [1998] 1 SCR
223 : AIR 1998 SC 768; M. Narayandas v. State of Karnataka
[2003] Supp. 3 SCR 973 : AIR 2004 SC 555; Saloni Arora v.
State of NCT of Delhi [2017] 1 SCR 397 : Criminal Appeal No.
64 of 2017 – referred to.
Nishi Kanta Pal v. Emperor, AIR 1917 Calcutta 180; State v. Babulal
Gaurishanker Misar, AIR 1957 Bombay 10; Sykes v. Director of
Public Prosecutions, 1962 A.C. 528; Phudki v. State, AIR 1955
All. 104; Janki Prasad Tibrewal v. The State of Bihar, 1975 Crl.
L.J. 575 (Patna); Diljam Sahu v. Emperor, AIR 1937 Patna 633;
Emperor v. Sideman Abba AIR 1935 Bom. 24 – referred to.
Jaswant Singh v. King Emperor, AIR 1925 Lahore 139 – referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Customs
Act, 1962.
List of Keywords
Section 195 of Code of Criminal Procedure, 1973; Obstruction;
Obstruction in the discharge of public functions; Obstructing the
public servant in the discharge of their public function; Obstruction
of the public servant; Voluntarily obstructing the public servant from
discharge of his public functions; Voluntary obstruction caused in
the discharge of public functions; Section 186, Penal Code, 1860;
Private complaint; Written complaint by the public servant; Distinct
offences; Severance of distinct offences; Physical obstruction; Use
of criminal force; Unlawfully preventing public servant in discharge of
his functions; Process Server; Duty to serve warrants; Misbehaved;
Detained; Made to stand raising hands; Misconduct; Public servant;
Public function; Order of police investigation; Complaint; Threats of
violence; Written complaint; Preventing a public servant in discharge
of his lawful duties; Contempt of lawful authority.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
(Criminal) No. 12373 of 2025
From the Judgment and Order dated 12.09.2024 of the High Court
of Delhi at New Delhi in WPCRL No. 2047 of 2013
1100 [2025] 8 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioner:
Nikilesh Ramachandran, SC Sagar, Shubham Seth, Ms. Ananya
V Mehra, Ms. Soumya Saisa Das.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*
A. BRIEF FACTUAL MATRIX ............................................................. 2
B. IMPUGNED ORDER ....................................................................... 8
C. SUBMISSIONS ON BEHALF OF THE PETITIONER ................... 10
D. ANALYSIS ...................................................................................... 11
i. Section 186 of the I.P.C. .......................................................... 15
ii. Section 195 of the Cr.P.C. ........................................................ 23
E. CONCLUSION ................................................................................ 47
1. This petition arises from the judgment and order passed by the High
Court of Delhi dated 12th September 2024 in Writ Petition (Criminal)
No. 2047 of 2013 and connected Criminal Miscellaneous Application
No. 18861 of 2013 by which the writ petition along with the connected
application came to be rejected, thereby affirming the order dated
28.11.2018 passed by the Chief Metropolitan Magistrate directing
registration of the FIR against the petitioner-herein for the offence
punishable under Sections 186 and 341 respectively of the Indian
Penal Code, 1860 (for short, “I.P.C”).
* Ed. Note: Pagination as per the original Judgment.
[2025] 8 S.C.R. 1101
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
A. BRIEF FACTUAL MATRIX
2. It appears from the materials on record that the respondent no. 2
herein at the relevant point of time was serving as a Process Server,
Nazarat Branch, Shahdara. He was assigned the duty to serve
warrants and, in this connection, he had to visit the Nand Giri police
station on 03.10.2013. It is the case of the respondent no. 2 that few
police officials, more particularly, the petitioner-herein misbehaved
with him when he insisted for a receipt of the summons. According to
him, he was detained in the police station till 4:30 PM. It is only after
the arrival of the Head Constable that the warrants were accepted.
3. The respondent no. 2 brought the alleged misconduct on part of the
petitioner to the notice of the District and Sessions Judge of Shahdara
in the form of voluntary obstruction said to have been caused in the
discharge of his public functions. The District and Sessions Judge
assigned the complaint to the Administrative Civil Judge who in turn
lodged a private complaint in the court of the Chief Metropolitan
Magistrate, Karkardooma Courts, Delhi.
4. The Chief Metropolitan Magistrate vide order dated 28.11.2013
directed the registration of FIR under Sections 186 and 341
respectively of the I.P.C. The order passed by CMM, Shahdara,
Delhi dated 28.11.2013 reads thus:
“The present complaint case was filed u/s. 195 Cr.P.C. by
Ld. ACJ, Shahdara.
Allegations of Shri Ravi Dutt Sharma (Process Server)
are that one warrant issued by the court of Shri Sharad
Gupta, Ld. MM and one summon issued by the court of
Shri Arvind Kumar, Ld. AD) were assigned to him to be
served to SHO PS Nand Nagri. On 3.10.2013 he reached
PS Nand Nagri at about 12.30 P.M. One Ct Sanjay Kumar
Sharma was present in the room of 5-8. The said constable
received the processes but signed as HC Brahmjeet.
Process Server Ravi Dutt asked him not to do so. Upon
this Ct. Sanjay cut the signatures made by him in the name
of HC Brahmjeet and took the processes to the Reader
of SHO who also refused to receive the processes. The
process server went to duty officer who also refused to
take the processes.
1102 [2025] 8 S.C.R.
Supreme Court Reports
The process server went to SHO Insp. Devender Kumar
and told him all the facts. The said SHO kept the processes
and abused the process server badly. SHO asked process
server to stand there raising his hands and wait till the
Havaldar/Head Constable comes. For about half an
hour process server stood there, raising his hands as a
punishment. He was also made to sit on the floor for about
3-4 hours as punishment. The process server begged SHO
to allow him to go as he had to serve other processes
also and told him that, he would come after serving other
processes. The SHO, however, did not allow the process
server to go. At about 4.30 p.m. one head constable come
who took the processes and gave receipt.
From these allegations offence U/s. 106, 341 and 342 IPC
are clearly made out. The conduct of the SHD PS Nand
Nagri cannot be tolerated. This case carrot be taken lightly.
Hence, U/s. 156(3) Cr.P.C., it is ordered that FIR be
registered against SHO P.S. Nangi for the above said
offence. The FIR be registered at PS Nand Negri itself as
the offence took place within the premises of PS Nand Nagri
itself. Investigation be conducted by Officer of the rank of
ACP and under direct supervision of Addl. CP concerned.
Copy of this order be sent to CCP and Addl. CP concerned
for immediate compliance. Put up for status report on
14.12.2023.”
(Emphasis supplied)
5. The aforesaid order came to be challenged by the petitioner-herein
in the court of the Sessions Judge, Karkardooma Courts, Delhi by
filing Criminal Revision Application No. 174 of 2013. The revision
application came to be rejected vide order dated 03.12.2013. The
order reads thus:
“10. A perusal of the record reveals that the Process
Server Mr. Ravi Dutt Sharma posted at Nazarat Branch,
Karkardooma Court, Delhi has submitted his complaint
dated 10/10/13, to Ld. District & Sessions Judge, Shahdara,
Delhi. Ld. District & Sessions Judge, Shahdara had
[2025] 8 S.C.R. 1103
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
made an endorsement dated 14/10/13 assigning the said
complaint to Ld. Administrative Civil Judge, Shahdara to
deal with the matter. Shri Neeraj Qaur, Ld. Administrative
Civil Judge, Shahdara District. Karkardooma Court,
Delhi, thereafter made a complaint dated 15/10/13 U/s
195 Cr.P.C to the Ld. Chief Metropolitan Magistrate,
Shahdara District, Karkardooma Courts, Delhi enclosing,
the original complaint made by the Process Server. In the
said complaint he had observed that allegations made in
the complaint prima facie constitute offences U/s 186 IPC
and U/s 341 IPC.
11. Ld. CMM on receipt of the complaint had issued notice
to the DCP for 29/10/13 vide order dated 17/10/13. On
29/10/13, ACP Seemapuri had appeared and sought
adjournment for filing the report and the matter was
adjourned for 13/11/13. On that day, further time was
sought by ACP and matter was adjourned to 28/11/13.
On 28/11/13, report was filed on behalf of Addl. DCP vide
letter No. 179/13 dated 27/11/l3 submitting that inquiry
into the matter was got conducted by ACP Seemapuri
wherein fault on the part of the Inspector Devender Kumar,
SHO, PS Nand Nagri was established. In the impugned
order, Ld. Trial Court has reproduced the contents of the
complaint wherein allegations were made against the
SHO concerned and the staff and after considering the
complaint, Ld. Trial court had observed: that from the
allegations made in the complaint offences U/s 186, 341
and 342 IPC are clearly made out. Therefore, Ld. Trial
court has substantially compiled with the guidelines issued
by Hon’ble High Court in authority: reported as Subhash
Manchanda v State & Anr., 2013 II AD (Delhi) 277 and
Subhkaran Luharuka and Shree Ram Mills Ltd. v State
(Govt of NCT of Delhi) and Utility Premises Pvt Ltd. It Is
pertinent to mention here that in the present case, the
complainant is a Process Server posted at Karkardooma
Court who had gone to PS Nand Nagri to serve the
summons issued from the court of Shri Arvind Kumar, Ld.
ADJ and warrants-issued from the court-of Shri Sharad
Gupta, Ld. MM but he faced the difficulty in execution of
1104 [2025] 8 S.C.R.
Supreme Court Reports
the process at police station. He has narrated the entire
episode in his complaint which reflects that in VB Room,
one person disclosed his identity as Ct. Sanjay Kumar, who
received the processes and signed as HC Brhamjeet and
on protest by the complainant, he struck off the signatures
made by him and took the complainant to Reader of SHC
and then to Duty Officer who both refused to receive
the processes. He was thereafter, produced before the
revisionist to whom facts were disclosed, whereupon he
started misbehaving by remarking whatever has” been
done by Ct. Sanjay, Reader and Duty Officer was correctly
done and that he would, teach complainant how to do
service; that complainant is below a Constable and he
being fourth class employee was nobody to teach them
work and made him to stand up for half an hour with
hands up and was made to sit on floor for 3-4 hours as
punishment. He also asked his staff to bring DD register
and remarked that complainant should be confined (band
karo) and then he would see as to what the Judge of
complainant would do and that he (complainant) should
make the revisionist talk on phone with the Judge then he
would see as to what a Judge can do as Judge is also an
officer so is revisionist. Despite request of complainant to
let him go and come back after executing the court work,
complainant was not allowed. Complainant has placed
on record the photocopies of the process bearing the
cuttings allegedly done by the Constable who had put
the signatures of other Head Constable and subsequently
the signatures were struck off. The original or copy of the
process was not delivered to the Process Server but he
was provided only photocopy, thereof. He was allegedly
illtreated, wrongly confined, punished by making him
stand hands-up and was also allegedly asked to sit on
the floor for about 3-4 hours, He has made the complaint
against the SHO concerned, the revisionist herein. Under
the circumstances, he could not have been expected to
have first approached the revisionist against whom he
had the grievance and therefore the contention that he
could not have made the complaint directly to the court
has no merit.
[2025] 8 S.C.R. 1105
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
12. The contention raised by Ld. Counsel for the revisionist
that the complaint U/s 195 Cr.P.C by Ld. ACJ to the court
of Ld. CMM could only be filed subsequent to holding an
inquiry U/s 340 Cr.P.C is not tenable because the question
of holding an inquiry U/s 340 Cr.P.C would arise only when
the offence referred to falls in clause (b) of Sub-section (1) of
Section 195 Cr.P.C which appears to have been committed
in or in relation to a proceeding In that court or as the case
may be in respect of a document produced or given in
evidence in a proceeding in that Court. The complainant
Process Server Ravi Dutt Sharma is a public servant
and being employee in the court he was administratively
subordinate to Ld. Administrative Civil Judge, who had
made the complaint U/s 195 Cr.P.C and therefore in the
complaint he had formed a view after considering the
contents of the complaint that from the allegations made
therein prima facie offence U/s 186 IRC and U/s 341 IPC
are constituted and therefore there was no illegality in the
complaint. The question of obtaining sanction against the
offender being a police officer, is to be appreciated at the
time of taking cognizance of offence or filing of chargesheet
and contention in this regard is pre-mature at this juncture.
13. The impugned order has been passed by Ld. CMM,
Shahdara and PS Nand Nagri falls in the territorial
jurisdiction of District Shahdara, Delhi and therefore Ld.
Trial Court was competent and had territorial jurisdiction
to pass the impugned order.
14. The contention that Ld. Trial court has completely failed
to appreciate the distinction between Chapters XV and
XXVI has no merit. In authority reported as Baru Ram v
State of Haryana 1990 Cr.L.J NOC 153, it was held that if
cognizance of offence has not been taken by the Magistrate
U/s 190(1)(a) Cr.P.C on receipt of complaint, he can direct
investigation U/s 156(3) Cr.P.C after registration of the
case. In authority reported as Minu Kumari & Anr v State
of Bihar and Ors (2006) 4 Supreme Court Cases 359,
It was held that the Magistrate is not bound to follow the
procedure laid down in sections 200 and 202 of the Code
for taking cognizance of a case U/s 190(1)(i)(a) Cr.P.C.
1106 [2025] 8 S.C.R.
Supreme Court Reports
15. It cannot be said that -the complaint made by Ld.
Administrative Civil Judge to Ld. CMM U/s 195 Cr.P.C
accompanied with the complaint of Process Server is abuse
of court process or of provisions of law. The contention that
allegations made by the Process Server are improbable
and absurd cannot be outrightly rejected or disbelieved
rather the photocopies of the warrant and summons placed
by him on record prima facie support his allegations.
The letter No. 179/13 dated 27/11/13 submitted by Mr.
Rajender Singh Sagar, Additional DCP, N/E District, Delhi
also supports the complainant as it has been reported that
in the inquiry conducted by ACP Seemapuri fault on the
part of Inspector Devender Kumar SHO, PS Nand Nagri
was established.
16. There is no doubt that a Magistrate cannot direct
investigation to be conducted by an officer of a particular
rank, However, in the present case the complainant had
made the allegations against the SHO, PS Nand Nagri,
(the revisionist herein) and therefore an order directing
investigation to be conducted by an Officer of the rank of
ACP cannot be said to be illegal because investigation by
a superior officer alone can serve the purpose of inquiry
or investigation.
17. In my considered view there appears no illegality,
irregularity or impropriety in the Impugned order. The
revision is therefore dismissed. Copy of order alongwith
trial court record be sent to the Ld. Trial Court. Revision
file be consigned to Record Room.”
(Emphasis supplied)
B. IMPUGNED ORDER
6. The aforesaid order passed by the Additional Sessions Judge came
to be challenged before the High Court. The High Court declined to
interfere and rejected the writ petition. The impugned order passed
by the High Court reads thus:
“31. Prima facie; it is established that there was indeed
an obstruction/delay caused by the Police Officials of
[2025] 8 S.C.R. 1107
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
P.S. Nand Nagri in execution of the court duties of the
Complainant in the service of the summon/warrants.
32. The first plea of the Petitioner that the Ld. CMM
could not be specifically directed registration of FIR u/s
186/341/342 IPC, 1860 is not tenable for the simple reason
that the observations are that these offences are prima
facie made put, but it does not curtail the investigations to
be confined only to these offences. The I.O. is obligated, to
conduct investigations fair and the submit the final report
on the offences if any, are established on the basis of the
investigations.
33. The second ground taken is that direct registration of
FIR in non-cognizable offences u/s 186 IPC, 1860 in the
absence of any complaint by the Court, is in contravention
of S.195 Cr.P.C. This argument is totally fallacious for
the simple reason that firstly, the complainant/Process
Server who is a public servant and as an employee of
the court, is administratively subordinate to the Learned
Administrative Civil Judge, who filed the complaint under
Section 195 of the Cr.P.C. to the Ld. CMM who in turn
forwarded it by endorsing the prima facie commission of
the offences and directing the investigations. Secondly,
the alleged misconduct of the Petitioner, by no stretch
of imagination, can be termed as acts in discharge of
his official duties. Thirdly, the Complaint under S.195
Cr.P.C. is required for taking cognizance on the charge
sheet; the issue of obtaining sanction is premature at
this stage. Thus, the Ld.ASJ has rightly observed that
there is no illegality in the complaint and the need for
sanction against the accused, a police officer, should
be addressed when taking cognizance or filing the
chargesheet.
34. The Third challenge is to the directions by the Ld.
CMM for the investigations to be conducted by officers of
Rank of ACP. Considering that the complainant has made
allegations against the SHO of PS Nand Nagri, it has
been rightly ordered that the investigation be carried out
by an officer of the rank of ACP. Such directions cannot
1108 [2025] 8 S.C.R.
Supreme Court Reports
be held illegal, as only an investigation conducted by a
higher-ranking officer can effectively serve the purpose of
a proper inquiry or investigation.
35. Fourth ground to challenge the Impugned Order was
that a Preliminary Enquiry should have been conducted
before directing registration of an FIR against a government
servant. However, the holding of an inquiry u/s. 340 Cr.P.C.
does not arise in the present case as the Ld. CMM had
filed a complaint u/s. 195(1)(a)(i) Cr.P.C. along with the
complaint of the respondent no. 2 for the offence under
s. 186 IPC. The Ld. ASJ has rightly observed that the
question of Preliminary enquiry under s. 340 Cr.P.C. would
have arisen only when the offence referred falls within
s. 195(1)(b) Cr.P.C. and does not pertain to the offence
under s.186 IPC.
36. The Fifth contention raised by the Petitioner that the
Ld. ASJ has failed to discuss the Enquiry Report dated
25.11.2013 of ACP, is completely misplaced as the Ld.
ASJ has not only discussed and referred to the Inquiry
report dated 25.11.2013 but has concluded that the same
clearly establishes the fault of the Petitioner: The reliance
of the Petitioner on this Report self-destructive as the
same clearly highlights the misconduct of the Petitioner
who used harsh words against the process server on
being provoked.
37. In light of the foregoing discussion, it is held that
there is no infirmity in the Order dated 28.11.2018 of the
Ld. CMM, directing registration of the FIR against the
concerned police officials which is upheld by the Ld. ASJ
vide the Order dated 03.12.2013 and the same warrant
no inference by this Court.
38. The Petition, along with pending application(s) if any,
are hereby dismissed.”
(Emphasis supplied)
7. In such circumstances referred to above, the petitioner is here before
this Court with the present petition.
[2025] 8 S.C.R. 1109
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
C. SUBMISSIONS ON BEHALF OF THE PETITIONER
8. Mr. Nikilesh Ramachandran, the learned counsel appearing for the
petitioner vehemently submitted that even if the entire case put up
in the FIR is believed to be true or accepted to be true, none of the
ingredients to constitute the offence punishable under Section 186 of
the I.P.C. could be said to be disclosed. In other words, the counsel
contends that the whole of the complaint even if taken to be true does
not reveal the commission of any offence by the petitioner-herein.
He would submit that the contents of the complaint even if read
together as true would not attract Section 186 of the I.P.C. far from
Section 341 of the I.P.C. According to the learned counsel for the
petitioner, mere obstruction is not enough unless it is accompanied
by use of some criminal force.
9. The learned counsel vehemently submitted that no order could have
been passed in exercise of powers under Section 156(3) of the
Cr.P.C. for the registration of an offence under Section 186 of the
I.P.C. as the same is encompassed within Section 195(1)(a) of the
Cr.P.C. and cognizance of the offence punishable under Section 186
of the I.P.C. can only be taken upon a complaint as defined under
Section 2(d) of the Cr.P.C.
10. In such circumstances referred to above, it was prayed that there
being merit in this petition, the same may be allowed and the First
Information Report be quashed.
D. ANALYSIS
11. We could have disposed of the present petition by just observing
that the petitioner may avail appropriate legal remedy before an
appropriate forum in accordance with law if at all at the end of the
investigation a chargesheet is filed. However, there is one issue
which needs a little clarification at our end.
12. It is not in dispute that the Administrative Civil Judge upon
instructions from the District and Sessions Judge, Shahdara lodged
a private complaint in the court of the Chief Metropolitan Magistrate,
Karkardooma Courts, Delhi. This was in tune with the procedure
prescribed under Section 195(1)(a) of the Cr.P.C. that it is either
the public servant concerned or some other public servant to whom
he is administratively subordinate, who would be allowed to file a
complaint in writing. To the extent of filing a private complaint everything
1110 [2025] 8 S.C.R.
Supreme Court Reports
proceeded in accordance with law. However, 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 that the Chief Metropolitan Magistrate could be
said to have committed. What was the need to involve the police in
a complaint lodged by a Civil Judge for the offence punishable under
Sections 186 and 341 respectively of the I.P.C.?
13. 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. In our view, therefore, if
an accused is alleged to have committed an offence within Section
186, he would seem to have committed also an offence of contempt
of court.
14. In the facts of the present case, the right thing to do for the Chief
Metropolitan Magistrate should have been to take cognizance and
issue process under Section 204 of the Cr.P.C. In the present case,
there is no other serious offence or any offence figuring under
Section 195(1)(b)(ii) of the Cr.P.C. that perhaps would have required
the assistance of the police. In the case in hand, the dignity of the
court was at stake. There is lot of sanctity attached to a complaint
lodged by none other than a civil judge. In a complaint lodged by a
public servant, even verification of the contents of the complaint on
oath is not required. In such circumstances, we do not approve of
the order of police investigation under Section 156(3) of the Cr.P.C.
15. It would be argued that as the FIR was registered for non-cognizable
offences; Section(s) 186 and 341 of the I.P.C., respectively, and
even if Section 341 of the I.P.C. is to be treated as a distinct offence
being not covered under Section 195 of the Cr.P.C., the police report
if at all filed in future, insofar as the offence under Section 186 of
the I.P.C. is concerned, may be treated as a “complaint” in view of
the explanation to Section 2(d) of the Cr.P.C. Section 2(d) Cr.P.C.
reads as follows:
“(d) “complaint” means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
[2025] 8 S.C.R. 1111
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.—A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;”
(Emphasis supplied)
16. As per the explanation appended to the definition clause, a police
report disclosing a non-cognizable offence (Sections 186 and 341
I.P.C. respectively in the present case) shall be deemed to be a
complaint and the police offer shall be deemed to be the complainant.
Even then, the legal embargo under Section 195 Cr.P.C., so far as
Section 186 of the I.P.C. is concerned is not dispelled as the legal
fiction deems the police officer and not the aggrieved public servant
as the complainant. [See: Umashankar Yadav and Another v. State
of U.P., 2025 SCC OnLine SC 1066]
17. The entire trial would have been over within a period of three months
from the date of filing of the complaint in writing, had the CMM taken
cognizance on the very first day and issued process under Section
204 of the Cr.P.C. Having not done so at the right time and in the
right manner, it has been now twelve years that this litigation is still
pending.
18. 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.
i. Section 186 of the I.P.C.
19. Before proceeding further to discuss as to whether mere obstruction
itself would be enough or the act of obstruction is to be accompanied
by use of some criminal force, it may be necessary to notice one
particular allegation made against the petitioner herein in the
complaint. In the complaint the allegations are:
1112 [2025] 8 S.C.R.
Supreme Court Reports
“one warrant issued by the court of Shri Sharad Gupta, Ld.
MM and one summons issued by the court of Shri Arvind
Kumar, Ld. AD) were assigned to him to be served to SHO
PS Nand Nagri. On 3.10.2013 he reached PS Nand Nagri
at about 12.30 P.M. One Ct Sanjay Kumar Sharma was
present in the room of 5-8. The said constable received the
processes but signed as HC Brahmjeet. Process Server
Ravi Dutt asked him not to do so. Upon this Ct. Sanjay cut
the signatures made by him in the name of HC Brahmjeet
and took the processes to the Reader of SHO who also
refused to receive the processes. The process server went
to duty officer who also refused to take the processes.
The process server went to SHO Insp. Devender Kumar
and told him all the facts. The said SHO kept the processes
and abused the process server badly. SHO asked process
server to stand there raising his hands and wait till the
Havaldar/Head Constable comes. For about half an
hour process server stood there, raising his hands as a
punishment. He was also made to sit on the floor for about
3-4 hours as punishment. The process server begged SHO
to allow him to go as he had to serve other processes
also and told him that, he would come after serving other
processes. The SHO, however, did not allow the process
server to go. At about 4.30 p.m. one head constable come
who took the processes and gave receipt.”
20. In Nishi Kanta Pal v. Emperor reported in AIR 1917 Calcutta 180,
the accused who were not parties to a suit in which a public right
of way was claimed, did not allow a Munsif, in whose Court the
suit was pending, to pass in a boat through a ditch which was their
private property, when the Munsif wanted to pass through it for the
purpose of making a local inspection in connection with the suit. The
Calcutta High Court held that the accused did not commit any offence
under Section 186 of the I.P.C. The Court took the view that there
was no right of way as such and to pass through it for the purpose
of making a local inspection and therefore, the accused are right in
obstructing the Munsif from passing through their lands.
21. In Jaswant Singh v. King Emperor reported in AIR 1925 Lahore
139, the Lahore High Court held that the use of the word voluntarily
[2025] 8 S.C.R. 1113
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
in Section 186 of I.P.C. indicates that the Legislature contemplated
the commission of some overt act of obstruction, and did not intend
to render penal mere passive conduct. The Allahabad High Court in
Phudki v. State reported in AIR 1955 All. 104, held that the word
obstruction in Section 186 connotes some overt act in the nature of
violence or show of violence. It cannot be said that a man obstructed
another if that man runs away from arrest or if he does not actually
submit to the arrest. The Patna High Court in Janki Prasad Tibrewal
v. The State of Bihar reported in 1975 Crl. L.J. 575 (Patna) while
construing the expression ‘obstruct’ used in Section 186 observed
that the expression obstruct envisages actual resistance and obstacle
in the way of public servant and it implies the use of criminal force.
However, the Patna High Court in Diljam Sahu v. Emperor reported
in AIR 1937 Patna 633 observed that sufficient indication that any
attempt to effect attachment by a public servant having warrant of
attachment would be resisted by force is quite enough to constitute
obstruction within the meaning of Section 186 of the Act. Mere
resistance of warrant of attachment by a public servant would be
an offence punishable under Section 186 of I.P.C.
22. The Bombay High Court in Emperor v. Sideman Abba reported in
AIR 1935 Bom. 24 also took the similar view that mere obstruction
or prevention of discharge of duties may be enough to constitute an
offence under Section 186 of the I.P.C. A Division Bench of Bombay
High Court in State v. Babulal Gaurishanker Misar reported in AIR
1957 Bombay 10 held that to constitute ‘obstruction’ within Section
186 of the I.P.C., it is not necessary that there should be actual
criminal force. It is sufficient if there is either a show of force or
threat or any act preventing the execution of the process of the civil
Court. It was held by the Court that if an accused obstructs a public
servant in the discharge of his public function (execution of a warrant
of possession) he commits two offences. One offence committed by
him is the alleged obstruction which comes within Section 186 and
the other offence committed by him is the offence of having been
guilty of undermining the authority of the Court.
23. “Obstructing” the police is not confined to physical obstruction. [See:
Sykes v. Director of Public Prosecutions, 1962 A.C. 528]
24. The word ‘obstruction’ in Section 186 of the I.P.C is not confined to
physical obstruction only. Threats of violence made in such a way as
1114 [2025] 8 S.C.R.
Supreme Court Reports
to prevent the public servant from carrying out his duty might easily
amount to an obstruction of the public servant.
25. In Santosh Kumar Jain v. The State reported in 1951 SCC 190,
the General Manager of the Jagdishpur Zamindary Co. who were
the lessees of a sugar factory, was prosecuted for obstructing the
District Magistrate and the Special Officer of Rationing, Patna,
in the discharge of their official functions when they went to the
factory on 06.12.1947 to remove, 5,000 maunds of sugar which
had been seized out of the stock held by the Company pursuant to
an order of the Government of Bihar dated 05.12.1947. The named
officers went to the Factory on 06.12.1947 to carry out the order
of the Government. The Officers were told by the accused General
Manager that he would do everything possible to obstruct the removal
of the sugar and accordingly it was found that the sugar godowns
had been locked and the road leading to them blocked by heaps of
coal, firewood and tins placed across, so as to make vehicular traffic
impossible. As a result of such obstruction, the officers had to seek
the aid of armed police to break open the locks, repair the railway
line and clear the road block before the sugar could be removed
from the factory. The main defense of the accused was that on a
proper construction of Section 3 of the Essential Supplies (Temporary
powers) Act, 1946 it was not competent for the Government to pass
the order dated 05.12.1947, which was consequently illegal and void
and that obstruction to the execution of that order could not constitute
an offence under Section 186 I.P.C. The contention was rejected by
the Court below and the accused was convicted and sentenced to
imprisonment for a term of three weeks under Section 186 of I.P.C.
The Patna High Court confirmed the conviction and the sentence.
The revision came up before this Court. This Court observed that the
seizure of the Company’s sugar must therefore be regarded as duly
authorized and lawful and the accused by obstructing its removal
committed an offence under Section 186 of I.P.C.
26. In Collector of Customs and Central Excise v. Paradip Port
Trust reported in (1990) 4 SCC 250, this Court while construing
the expression obstruction’ used in Section 133 of the Customs Act,
1962 observed that:
“On the authority of Hinchliffe v. Sheldon [(1955) 1 WLR
1207], it can be said that obstruction is not confined to
physical obstruction and it includes anything which makes
[2025] 8 S.C.R. 1115
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
it more difficult for the police or public servant to carry out
their duties.”
(Emphasis supplied)
27. It may be necessary to have a look at Section 133 of the Customs
Act, 1962 which is analogous to Section 186 of the I.P.C. Section
133 reads thus: -
“133. Obstruction of officer of customs. —
If any person intentionally obstructs any officer of customs
in the exercise of any powers conferred under this Act,
such person shall be punishable with imprisonment for
a term which may extend to six months, or with fine, or
with both.”
28. Now let us compare Section 133 of the Customs Act, 1962 with
Section 186 of the I.P.C. Section 186 of I.P.C. reads:
“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
extent to three months, or with fine which may extend to
five hundred rupees, or with both”.
29. Under Section 186, the expression “whoever voluntarily obstructs any
public servant in the discharge of his public functions” is used and
whereas in Section 133 of the Customs Act, 1962 the expression “if
any person intentionally obstructs any officer of customs” is used. In
our considered opinion, the expression ‘intentionally’ used in Section
133 of the Customs Act and the expression ‘voluntarily’ used in
Section 186 of I.P.C. connote the same meaning. The decision of
this Court in Collector of Customs (supra) concludes and decides
the issue. Therefore, we hold 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. Any
act of causing impediment by unlawfully preventing public servant
in discharge of his functions would be enough to attract Section 186
1116 [2025] 8 S.C.R.
Supreme Court Reports
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. Such an interpretation cannot be
commended by the Courts.
30. We have already noticed the averments made in the complaint
against the petitioner herein and others. Their acts prima facie, in
our considered opinion, amount to obstructing the public servant in
the discharge of their public functions. Therefore, the complaint itself,
in our considered opinion does not suffer from any legal infirmity.
31. It is entirely a different matter altogether that the allegations levelled
against the petitioner may be true or not. The same has to be enquired
into by the trial court, in accordance with law, uninfluenced by the
observations relating to the acts themselves, as this Court has not
expressed any opinion whatsoever on the merits of the case. But if
the allegations are true and established as is required in law, they
would certainly constitute an offence punishable under Section 186
of the I.P.C.
32. The aforesaid is one view of the matter. The courts should be mindful
of the position of law that we have explained as aforesaid.
33. We now proceed to consider the matter from a different angle with
a view to decide whether we should interfere with the impugned
judgment passed by the High Court or not.
ii. Section 195 of the Cr.P.C.
34. Section 195 of the Cr.P.C. reads thus:
“195. Prosecution for contempt of lawful authority of
public servant, for offences against public justice and
for offences relating to documents given in evidence.–
(1) No Court shall take cognizance
(a) (i) of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code, or
(ii) of any abetment of, or attempt to commit,
such offence, or
(iii) of any criminal conspiracy to commit such
offence,
[2025] 8 S.C.R. 1117
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
except on the complaint in writing of the public servant
concerned or of some other public servant to whom
he is administratively subordinate;
(b) (i) of any offence punishable under any of the
following sections of the Indian Penal Code,
namely, sections 193 to 196 (both inclusive),
199, 200, 205 to 211 (both inclusive) and 228,
when such offence is alleged to have been
committed in, or in relation to, any proceeding
in any Court, or
(ii) of any offence described in section 463, or
punishable under section 471, section 475 or
section 476, of the said Code, when such offence
is alleged to have been committed in respect
of a document produced or given in evidence
in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or
attempt to commit, or the abetment of, any
offence specified in subclause (i) or subclause
(ii),
except on the complaint in writing of that Court or by
such officer of the Court as that Court may authorise
in writing in this behalf, or of some other Court to
which that Court is subordinate.
(2) Where a complaint has been made by a public servant
under clause (a) of subsection (1) any authority to
which he is administratively subordinate may order
the withdrawal of the complaint and send a copy of
such order to the Court; and upon its receipt by the
Court, no further proceedings shall be taken on the
complaint:
Provided that no such withdrawal shall be ordered
if the trial in the Court of first instance has been
concluded.
(3) In clause (b) of subsection (1), the term “Court” means
a Civil, Revenue or Criminal Court, and includes a
1118 [2025] 8 S.C.R.
Supreme Court Reports
tribunal constituted by or under a Central, Provincial
or State Act if declared by that Act to be a Court for
the purposes of this section.
(4) For the purposes of clause (b) of subsection (1), a
Court shall be deemed to be subordinate to the Court
to which appeals ordinarily lie from the appealable
decrees or sentences of such former Court, or in the
case of a Civil Court from whose decrees no appeal
ordinarily lies to the principal Court having ordinary
original civil jurisdiction within whose local jurisdiction
such Civil Court is situate:
Provided that
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be
the Court to which such Court shall be deemed
to be subordinate;
(b) where appeals lie to a Civil and also to a
Revenue Court, such Court shall be deemed
to be subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding
in connection with which the offence is alleged
to have been committed.”
35. As a general rule, any person, having knowledge of commission of
an offence may set the law in motion by a complaint, even though
he is not personally interested or affected by the offence. There are
exceptions to this general rule, as evident from Sections 195 and
196 respectively of the Cr.P.C. Section 195 is one of those sections,
which prohibits a court from taking cognizance of certain offences
unless and until a complaint has been made by some particular
authority or person. The other sections, with similar prescriptions, are
sections 196 to 199 of the Cr.P.C. respectively. Section 195 of the
Cr.P.C. has been enacted as a safeguard against the irresponsible
and reckless prosecutions by the private individuals in respect of the
offences, which relate to the administration of justice and contempt
of lawful authority.
36. It is true that Section 195 of the Cr.P.C. does not bar the trial of an
accused for a distinct offence disclosed by the same set of facts and
[2025] 8 S.C.R. 1119
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
is not so stated therein. Section 195 also does not provide further
that if in the course of the commission of that offence, other distinct
offences are committed, the court concerned is debarred from taking
cognizance in respect of those offences as well. However, having
said so, if the perusal of the first information report makes it clear that
the offence under Section 186 of the I.P.C. is closely interconnected
with another distinct offence(s), which in this case is Section 341
of the I.P.C. and it cannot be split up, then in such circumstances,
the bar of Section 195 of the Cr.P.C. will apply to such other distinct
offence also.
37. In the aforesaid context, we may refer to the following decisions of
this Court;
(i) In the case of State of U.P. v. Suresh Chandra Srivastava &
Ors., reported in AIR 1984 SC 1108 a three-judge bench very
succinctly explained the provisions of Section 195 of the Cr.P.C.
and stated that if the other distinct offences form an integral part
of the offences as enumerated under Section 195 Cr.P.C so as
to fall under the same transaction, then those distinct offences
would also be covered under the ambit of Section 195 Cr.P.C.
The relevant observations are as under: -
“6. In these circumstances, therefore, it is not
necessary for us to go into the broader question
as to whether if offences under Sections 467, 471
and 120B IPC are committed, the complaint could
proceed or not. The law is now well settled that
where an accused commits some offences which
are separate and distinct from those contained in
section 195, section 195 will affect only the offences
mentioned therein unless such offences form an
integral part so as to amount to offences committed
as a part of the same transaction, in which case the
other offences also would fall within the ambit of sec.
195 of the Code.”
(Emphasis supplied)
(ii) In the case of State of Karnataka vs. Hemareddy & Anr.
reported in AIR 1981 SC 1417, this Court held that in the
cases where in the course of the same transaction, an offence,
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Supreme Court Reports
for which, no complaint by a court is necessary under Section
195(1)(b) of the Cr.P.C., and an offence, for which, a complaint
of a Court is necessary under that subsection, are committed,
it is not possible to split up and hold that the prosecution of
the accused for the offences not mentioned in Section 195(1)
(b), Cr.P.C. should be upheld. We may quote the observation
as contained in para 8. The same reads as under: -
“8. We agree with the view expressed by the learned
Judge and hold that in cases where in the course
of the same transaction an offence for which no
complaint by a court is necessary under s. 195(1)(b)
of the Code of Criminal Procedure and an offence
for which a complaint of a court is necessary under
that subsection, are committed, it is not possible to
split up and hold that the prosecution of the accused
for the offences not mentioned in s. 195(1)(b) of the
Code of Criminal Procedure should be upheld.”
(Emphasis supplied)
(iii) In the case of Saloni Arora vs. State of NCT of Delhi,
[ Criminal Appeal No.64 of 2017], decided on 10.01.2017,
this Court explained the object of Section 195 of the Cr.P.C.,
observing as under: -
“10. As rightly pointed out by the learned counsel for
the parties on the strength of law laid down by this
Court in the case of Daulat Ram vs. State of Punjab,
(AIR 1962 SC 1206) that in order to prosecute an
accused for an offence punishable under Section
182 IPC, it is mandatory to follow the procedure
prescribed under Section 195 of the Code else such
action is rendered void ab initio.
11. It is apposite to reproduce the law laid down by
this Court in the case of Daulat Ram (supra) which
reads as under:
There is an absolute bar against the Court taking
seisin of the case under S.182 I.P.C. except in the
manner provided by S.195 Cr.P.C. Section 182 does
not require that action must always be taken if
[2025] 8 S.C.R. 1121
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
the person who moves the public servant knows or
believes that action would be taken. The offence
under S.182 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 complaint in writing should be made
by the Tehsildar, as the public servant concerned
under S.182, and not leave it to the police to put
a chargesheet. The complaint must be in writing by
the public servant concerned.
The trial under S.182 without the Tehsildars complaint
in writing is, therefore, without jurisdiction ab initio.
12. It is not in dispute that in this case, the prosecution
while initiating the action against the appellant did
not take recourse to the procedure prescribed under
Section 195 of the Code. It is for this reason, in
our considered opinion, the action taken by the
prosecution against the appellant insofar as it relates
to the offence under Section 182 IPC is concerned,
is rendered void ab initio being against the law laid
down in the case of Daulat Ram (supra) quoted
above.”
(Emphasis supplied)
38. Thus, what is discernible from the decisions referred to above is that
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. This would depend on the facts of each case.
However it cannot be laid as a straitjacket formula that the Court
cannot undertake the exercise of splitting up. It would depend upon
the nature of the allegations and the materials on record.
39. In Basir-ul-huq and others v. State of West Bengal reported in
(1953) 1 SCC 637, a three-judge bench of this Court held that the
magistrate would not be debarred from taking cognizance of the
1122 [2025] 8 S.C.R.
Supreme Court Reports
distinct offences not falling within the ambit of Section 195(1)(a),
thereby, effectively stating that the offences falling under Section
195(1)(a) and those not falling under Section 195(1)(a) can be split
up. Therein, one of the appellants had lodged an information at the
police station that one D had beaten and throttled his mother to death.
While the funeral pyre was in flames, the appellants therein along
with the police arrived at the cremation ground, extinguished the fire
and sent the body of the deceased for post-mortem examination.
However, no injury was found on the body of the deceased. Upon
investigation, the sub-inspector reached the conclusion that a false
complaint had been made against D. Therefore, an offence under
Section 182 I.P.C. was made out. However, D had separately instituted
a complaint against the appellants and they stood convicted for having
committed the offence under Sections 297 and 500 of the I.P.C.
respectively. It was in such a circumstance that this Court stated that
the Magistrate could take cognizance of the distinct offences i.e.,
Sections 297 and 500 of the I.P.C. respectively despite the facts also
disclosing the commission of an offence under Section 182 I.P.C. for
which a complaint by the proper authority under Section 195 Cr.P.C
would be a pre-requisite. Opining so, it was observed as follows:
“12. Section 195 CrPC, on which the question raised is
grounded, provides, inter alia, that no court shall take
cognizance of an offence punishable under Sections 172
to 188IPC, except on the complaint in writing of the public
servant concerned, or some other public servant to whom
he is subordinate. The statute thus requires that without
a complaint in writing of the public servant concerned
no prosecution for an offence under Section 182 can be
taken cognizance of. It does not further provide that if in
the course of the commission of that offence other distinct
offences are committed, the Magistrate is debarred from
taking cognizance in respect of those offences as well.
The allegations made in a complaint may have a double
aspect, that is, on the one hand these may constitute an
offence against the authority of the public servant or public
justice, and on the other hand, they may also constitute
the offence of defamation or some other distinct offence.
The section does not per se bar the cognizance by the
Magistrate of that offence, even if no action is taken by
[2025] 8 S.C.R. 1123
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
the public servant to whom the false report has been
made. It was however argued that if on the same facts
an offence of which no cognizance can be taken under
the provisions of Section 195 is disclosed and the same
facts disclose another offence as well which is outside
the purview of the section and prosecution for that other
offence is taken cognizance of without the requirements
of Section 195 having been fulfilled, then the provisions of
that section would become nugatory and if such a course
was permitted those provisions will stand defeated. It was
further said that it is not permissible for the prosecution
to ignore the provisions of this section by describing the
offence as being punishable under some other section of
the Penal Code.
13. In our judgment, the contention raised by the learned
counsel for the appellants is without any substance so
far as the present case is concerned. The charge for the
offence under Section 297IPC, could in no circumstance,
as pointed out by the High Court, be described as falling
within the purview of Section 195 CrPC. The act of trespass
was alleged to have been committed subsequent to the
making of the false report and all the ingredients of the
offence that have been held to have been established on
the evidence concern the conduct of the appellants during
the post-report period. In these circumstances, no serious
contention could be raised that the provisions of Section
195 would stand defeated by the Magistrate having taken
cognizance of the offence under that section.
14. As regards the charge under Section 500IPC, it seems
fairly clear both on principle and authority that where the
allegations made in a false report disclose two distinct
offences, one against the public servant and the other
against a private individual, that other is not debarred by
the provisions of Section 195 from seeking redress for the
offence committed against him. Section 499IPC, which
mentions the ingredients of the offence of defamation
gives within defined limits immunity to persons making
depositions in court, but it is now well settled that that
immunity is a qualified one and is not absolute as it is in
1124 [2025] 8 S.C.R.
Supreme Court Reports
English law. Under Section 198CrPC, 1898, a complaint
in respect of an offence under Section 499IPC, can only
be initiated at the instance of the person defamed, in like
manner as cognizance for an offence under Section 182
cannot be taken except at the complaint of the public
servant concerned. In view of these provisions there does
not seem in principle any warrant for the proposition that a
complaint under Section 499 in such a situation cannot be
taken cognizance of unless two persons join in making it
i.e. it can only be considered if both the public servant and
the person defamed join in making it, otherwise the person
defamed is without any redress. The statute has prescribed
distinct procedure for the making of the complaints under
these two provisions of the Penal Code and when the
prescribed procedure has been followed, the court is
bound to take cognizance of the offence complained of.”
(Emphasis supplied)
40. In Durgacharan Naik and Others v. State of Orissa reported in AIR
1966 SC 1775, a process server had to execute a writ of attachment
against the judgment-debtors, however, there was some resistance when
he reached their village. After the arrival of police, the judgment-debtors
paid the decretal dues to the process server. However, when the process
server and the police were leaving the village and were crossing a nearby
river in a boat, the appellant along with 10-12 persons threatened to
assault them if their money were not returned. The situation had de-
escalated upon the intervention of some outsiders and subsequently, on
the next morning, the ASI lodged an FIR against the appellants. While
the trial court had acquitted the appellants, the High Court set aside the
order of acquittal and convicted them for the offence under Section 353
I.P.C. As regards the charge under Section 186 I.P.C., the High Court
observed that the prosecution was barred under Section 195 Cr.P.C.
Finding no infirmity in the judgment of the High Court and allowing the
offences to be split up, this Court observed as follows:
“5. We pass on to consider the next contention of the
appellants that the conviction of the appellants under
Section 353 of the Indian Penal Code is illegal because
there is a contravention of Section 195(1) of the Criminal
Procedure Code which requires a complaint in writing by
[2025] 8 S.C.R. 1125
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
the process server or the ASI It was submitted that the
charge under Section 353 of the Indian Penal Code is
based upon the same facts as the charge under Section
186 of the Indian Penal Code and no cognizance could
be taken of the offence under Section 186 of the Indian
Penal Code unless there was a complaint in writing as
required by Section 195(1) of the Criminal Procedure Code.
It was argued that the conviction under Section 353 of the
Indian Penal Code is tantamount, in the circumstances of
this case, to a circumvention of the requirement of Section
195(1) of the Criminal Procedure Code and the conviction
of the appellants under Section 353 of the Indian Penal
Code by the High Court was, therefore, vitiated in law.
We are unable to accept this argument as correct. It is
true that most of the allegations in this case upon which
the charge under Section 353 of the Indian Penal Code
is based are the same as those constituting the charge
under Section 186 of the Indian Penal Code but it cannot
be ignored that Sections 186 and 353 of the 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 of the 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 Section 353 of the 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 Chapter X of the Indian Penal Code dealing
with contempts of the lawful authority of public servants,
while Section 353 occurs in Chapter XVI regarding the
offences affecting the human body. It is well established
that Section 195 of the Criminal Procedure Code does not
bar the trial of an accused person for a distinct offence
disclosed by the same set of facts but which is not within
the ambit of that section. [...]
6. In the present case, therefore, we are of the opinion that
Section 195 of the Criminal Procedure Code does not bar the
1126 [2025] 8 S.C.R.
Supreme Court Reports
trial of the appellants for the distinct offence under Section
353 of the Indian Penal Code, though it is practically based
on the same facts as for the prosecution under Section 186
of the Indian Penal Code.”
(Emphasis supplied)
41. While deciding whether the distinct offences can be split up, courts
must remain circumspect. It is agreed that, the law is not that once
the facts of a given case disclose an offence falling within the scope
of Section 195 Cr.P.C. and also other offences, prosecution can be
launched regarding the latter only upon the complaint of the court
or the lawfully authority concerned. To hold otherwise would be to
extend the scope of Section 195 Cr.P.C. to regions and horizons
not contemplated by the legislature. The facts in a case may give
rise to distinct offences including offences against the authority of
public servants or against public justice, as also offences against
private individuals; the bar under Section 195 of the Cr.P.C. cannot,
in such circumstances, affect the offences other than those against
public authority or public justice. Prosecution for such other offences
does not require the instrumentality of the public authority or court.
However, the position may be different when during the course
of the same transaction offences falling within the two categories
are committed. In such cases, it may not be possible to split up
the transaction, and to hold that there can be valid prosecution for
offences not mentioned in Section 195 of the Cr.P.C., without the
written complaint of the public authority or the court, as the case
may be. Courts must be able to see through any attempt to render
Section 195 of the Cr.P.C. nugatory by hiding the real nature of
the transaction by verbal jugglery. If in principle and substance the
offence alleged falls within the categories mentioned in Section 195,
the operation of the bar cannot be avoided; if in essence the alleged
offence falls outside the categories, the bar would not operate. At the
same time, if the facts give rise to distinct offences, some attracting
the operation of Section 195 and others not so, the bar can operate
only regarding the former and not regarding the latter.
42. Therefore, the courts must ascertain whether during the course of
a single transaction, the offences falling within both the categories
are committed, in which case it would be difficult to split up the
offences or, whether there are two different transactions which
[2025] 8 S.C.R. 1127
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
occur successively, nevertheless separately and distinctively, in
which case the offences may be split up. One another aspect that
may be looked into is whether, apart from the offences committed
in contempt of lawful authority of public servants, or against public
justice or, relating to documents given in evidence which fall under
the scope of Section 195 Cr.P.C., the other distinct offences are
of such a nature that private individuals are aggrieved. In such a
scenario, it would not be reasonable to bar a private prosecution by
the aggrieved individual for the reason that the public official or the
court concerned has also not instituted a complaint.
43. Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance
of the offence punishable under Section 186 I.P.C., unless there is a
written complaint by the public servant for voluntarily obstructing him
from discharge of his public functions. The object of this provision
is to provide for a particular procedure in a case of voluntarily
obstructing a public servant from discharging his public functions.
The court lacks competence to automatically take cognizance in
certain types of offences enumerated therein. The legislative intent
behind such a provision has been that an individual should not face
criminal prosecution instituted upon insufficient grounds by persons
actuated by malice, illwill or frivolity of disposition and also to save
the time of the criminal courts being wasted by endless prosecutions.
This provision has been carved out as an exception to the general
rule contained under Section 190 Cr.P.C. that any person can set the
law in motion by making a complaint, as it prohibits the court from
taking cognizance of certain offences until and unless a complaint
has been made by some particular authority or person. Other
provisions in the Cr.P.C. like sections 196 and 198 respectively
do not lay down any rule of procedure, rather, they only create a bar
that unless some requirements are complied with, the court shall not
take cognizance of an offence described in those Sections. [See:
Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel
Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935;
Surjit Singh & Ors v. Balbir Singh, (1996) 3 SCC 533; State of
Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam
v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; Iqbal Singh Marwah
& Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119]
44. The test of whether there is evasion or non compliance of
Section 195 Cr.P.C. or not, is whether the facts disclose primarily
1128 [2025] 8 S.C.R.
Supreme Court Reports
and essentially an offence for which a complaint of the court or of
a public servant is required. In BasirulHaq & Ors. (supra) and
Durgacharan Naik & Ors. (supra), this Court cautioned that
the provisions of this Section cannot be evaded by describing the
offence as one being punishable under some other sections of
I.P.C., though in truth and substance, the offence falls in a category
mentioned in Section 195 Cr.P.C. Thus, cognizance of such an
offence cannot be taken by misdescribing it or by putting a wrong
label on it.
45. In M.S. Ahlawat v. State of Haryana & Anr. reported in AIR 2000 SC
168, this Court considered the matter at length and held as under: -
“[...] Provisions of Section 195 Cr.P.C. are mandatory and
no court has jurisdiction to take cognizance of any of the
offences mentioned therein unless there is a complaint in
writing as required under that section.”
(Emphasis supplied)
46. In Sachida Nand Singh & Anr. v. State of Bihar & Anr. reported in
(1998) 2 SCC 493, this Court while dealing with this issue observed
as under: -
“7. Section 190 of the Code empowers “any magistrate of
the first class” to take cognizance of “any offence” upon
receiving a complaint, or police report or information or
upon his own knowledge. Section 195 restricts such
general powers of the magistrate, and the general right of
a person to move the court with a complaint to that extent
curtailed. It is a wellrecognised canon of interpretation that
provision curbing the general jurisdiction of the court must
normally receive strict interpretation unless the statute or
the context requires otherwise.”
(Emphasis supplied)
47. In Daulat Ram v. State of Punjab reported in AIR 1962 SC 1206,
this Court considered the nature of the provisions of Section 195
of the Cr.P.C. In the said case, cognizance had been taken on the
police report by the Magistrate and the appellant therein had been
tried and convicted, though the concerned public servant i.e., the
Tahsildar, had not filed any complaint. This Court held as follows: -
[2025] 8 S.C.R. 1129
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
“The cognizance of the case was therefore wrongly
assumed by the court without the complaint in writing
of the public servant, namely, the Tahsildar in this case.
The trial was thus without jurisdiction ab initio and the
conviction cannot be maintained.
The appeal is, therefore, allowed and the conviction of
the appellant and the sentence passed on him are set
aside.”
(Emphasis supplied)
48. Thus, in view of the above, the law can be summarized to the
effect that there must be a complaint by the public servant who was
voluntarily obstructed in the discharge of his public functions. The
complaint must be in writing. The provisions of Section 195 Cr.P.C.
are mandatory. Noncompliance 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.
49. The learned counsel appearing on behalf of the petitioner would
submit that the bar of Section 195 of the Cr.P.C., so far as the offence
punishable under Section 186 of the I.P.C. is concerned, is absolutely
unlike Section 195 (1)(b) of the Cr.P.C. In other words, Section
195(1)(b) would apply provided certain conditions are fulfilled, and if
those conditions are not applicable, then it is open for the police to
carry out the investigation after registering an F.I.R.
50. The heading of Chapter XIV of the Code of Criminal Procedure
is “Conditions Requisite for Initiation of Proceedings”. The first
provision in this Chapter is Section 190 and it deals with the power
of the Magistrate to take cognizance of the offences. There are
some other provisions in this Chapter which create an embargo on
the power of the Court to take cognizance of offences committed
by persons enumerated therein except on the complaint in writing
of certain specified persons or with the previous sanction of certain
specified authorities.
51. A plain reading of Section 195 of the Cr.P.C. would indicate that no
Court can take cognizance of an offence punishable under Section 186
of the I.P.C., except upon a complaint in writing of the public servant
1130 [2025] 8 S.C.R.
Supreme Court Reports
concerned or of some other public servant to whom he is administratively
subordinate. The opening words of the Section are “No Court shall take
cognizance”, and consequently, the bar created by the provisions
is against taking of cognizance by the Court. 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.
52. This Court in Iqbal Singh Marwah v. Meenakshi Marwah reported
in AIR 2005 SC 2119, while interpreting Section 195 Cr.P.C. has
held as follows:
“9. [...] This being the scheme of two provisions or clauses
of Section 195, viz., that the offence should be such which
has direct bearing or affects the functioning or discharge of
lawful duties of a public servant or has a direct correlation
with the proceedings in a court of justice, the expression
“when such offence is alleged to have been committed
in respect of a document produced or given in evidence
in a proceeding in a Court” occurring in clause (b)(ii)
should normally mean commission of such an offence
after the document has actually been produced or given in
evidence in the Court. The situation or contingency where
an offence as enumerated in this clause has already been
committed earlier and later on the document is produced
or is given in evidence in Court, does not appear to be
in tune with clauses (a)(i) and (b)(i) and consequently
with the scheme of Section 195 Cr.P.C. This indicates
that clause (b)(ii) contemplates a situation where the
offences enumerated therein are committed with respect
to a document subsequent to its production or giving in
evidence in a proceeding in any Court.”
(Emphasis supplied)
53. This Court, referred to its earlier decision in Sachida Nand Singh
(supra), wherein it had been held that Section 195 Cr.P.C. is invoked
where the offences affected the administration of justice. It is for
that reason, that only the concerned Court can take cognizance,
and the procedure under Section 340 Cr.P.C. also empowers the
same Court before whom the offence is committed in respect of
documents produced or given in evidence before that Court. The
[2025] 8 S.C.R. 1131
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
reason why the jurisdiction to take cognizance of such an offence
is restricted to the concerned Court is also noted by this Court
and the same is culled out from the previous decision in Patel
Lalji Bhai Samabhai (supra). The purpose underlying Section
195(1)(b) seems to be to control the temptation on the part of the
private parties to start criminal prosecution on frivolous, vexations
or insufficient grounds inspired by a revengeful desire to harass or
spite their opponents. These offences have been selected for the
court’s control because of their direct impact on the judicial process.
It is the judicial process or the administration of public justice which
is the direct and immediate object or the victim of these offences.
As the purity of the proceedings of the court is directly sullied
by the crime, the court is considered to be the only party entitled
to consider the desirability of complaining against the guilty party.
The private party who might ultimately suffer can persuade the Civil
Court to file the complaint.
54. In Iqbal Singh Marwah (supra), this Court took note of the legal
position that in view of the language used in Section 340 of the
Cr.P.C., the Court is not bound to make a complaint regarding
commission of an offence referred to Section 195(1)(b), as the
Section is conditioned by the words “court is of opinion that it is
expedient in the interest of justice”. The concerned Court would
file a complaint only if the interest of justice so requires and
not in every case. Even before making the complaint, the Court
would hold a preliminary enquiry and record a finding to the effect
that it is expedient in the interest of justice that enquiry should
be made into any of the offences referred to Section 195(1)(b).
This expediency would be judged by the Court by weighing not
the magnitude of injury suffered by the person affected by such
forgery or forged documents, but having regard to the effect or
impact that such commission of offence as upon administration of
justice. It is possible that such forged documents or forgery may
cause very serious or substantial injury to a person, inasmuch as,
it may deprive him of very valuable property or status or the like.
If it is held that in a case it would be the concerned Court alone,
which would be entitled to lodge the complaint, it would render the
victim of such forgery or forged documents remediless. This Court
held that any interpretation which leads to such a situation where a
victim of a crime is rendered remediless has to be discarded. This
Court also took a note of the fact that the holding of a preliminary
1132 [2025] 8 S.C.R.
Supreme Court Reports
inquiry under Section 340 of the Cr.P.C. by the concerned Court
would normally get unduly delayed. This important aspect also
dissuaded this Court from accepting the broad interpretation sought
to be placed on Section 195(1)(b)(ii) of the Cr.P.C. to the effect
that Section 195 is a bar to private prosecution. This Court held
that an enlarged interpretation to Section 195(1)(b)(ii), whereby the
bar created by the said provision would also operate where after
commission of an act of forgery, the document is subsequently
produced in Court, is capable of great misuse. After preparing a forged
document or committing an act of forgery, a person may manage
to get the proceeding instituted in any civil, criminal or revenue
Court either by himself or someone set up by him, or simply file the
document in the said proceeding. If the broad interpretation to Section
195(1)(b)(ii) is accepted, he would be protected from prosecution
either at the instance of a private party or the police, until the
concerned Court, where the document is filed, itself chooses to file
a complaint. Such an interpretation would be highly detrimental to
the interest of the society at large. This Court also took notice of
the fact that the Courts are generally reluctant in directing filing of a
criminal complaint and such a course is rarely adopted. The Court
held that it would not be fair and appropriate to give an interpretation
which leads to a situation where a person alleged to have committed
an offence of the type enumerated in Clause (b)(ii) is not placed
for trial on account of nonfiling of a complaint or if a complaint is
filed, the same does not come to its logical end. Such a broad
interpretation would also lead to impracticable results, which
should be avoided.
55. In State of Punjab v. Raj Singh reported in AIR 1998 SC 768, this
Court further stated that Section 195(1)(b)(ii) of the Cr.P.C. cannot
be seen as prohibiting the entertainment of, and investigation into the
offence(s) by the police. The bar comes into operation only when the
Court intends to take cognizance of the offence under Section 190
Cr.P.C. In other words, the statutory power of the police to investigate
under the Cr.P.C. is not in any way controlled or circumscribed
by Section 195 Cr.P.C. The legal position was elaborated in the
following words: -
“2. We are unable to sustain the impugned order of the High
Court quashing the F.I.R. Lodged against the respondents
alleging commission of offences under Sections 419, 420,
[2025] 8 S.C.R. 1133
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
467 and 468 I.P.C. by them in course of the proceeding
of a civil suit, on the ground that Section 195(1)(b)(ii)
Cr.P.C. prohibited entertainment of and investigation into
the same by the police. From a plain reading of Section
195 Cr.P.C. it is manifest that it comes into operation at
the stage when the Court intends to take cognizance
of an offence under Section 190(1) Cr. P.C.; and it has
nothing to do with the statutory power of the police to
investigate into an F.I.R. which discloses a cognizable
offence, in accordance with Chapter XII of the Code even
if the offence is alleged to have been committed in, or in
relation to, any proceeding in Court. In other words, the
statutory power of the Police to investigate under the Code
is not in any way controlled or circumscribed by Section
195 Cr.P.C. It is of course true that upon the chargesheet
(challan), if any, filed on completion of the investigation
into such an offence the Court would not be competent
to take cognizance thereof in view of the embargo of
Section 195(1)(b) Cr. P.C., but nothing therein deters the
Court from filing a complaint for the offence on the basis
of the F.I.R. (filed by the aggrieved private party) and the
materials collected during investigation, provided it forms
the requisite opinion and follows the procedure laid down
in section 340 Cr.P.C. [...]”
(Emphasis supplied)
56. A more elaborate discussion is found in M. Narayandas v. State of
Karnataka reported in AIR 2004 SC 555, wherein this Court has
held as follows: -
“8. [...] The question whether Sections 195 and 340 of the
Criminal Procedure Code affect the power of the police
to investigate into a cognizable offence has already been
considered by this Court in the case of State of Punjab v.
Raj Singh reported in 1998(2) SCC 391 [...] Not only are
we bound by this judgment but we are also in complete
agreement with the same. Sections 195 and 340 do
not control or circumscribe the power of the police to
investigate, under the Criminal Procedure Code. Once
investigation is completed then the embargo in Section
1134 [2025] 8 S.C.R.
Supreme Court Reports
195 would come into play and the Court would not be
competent to take cognizance. However that Court could
then file a complaint for the offence on the basis of the FIR
and the material collected during investigation provided the
procedure laid down in Section 340 Criminal Procedure
Code is followed. Thus no right of the Respondents,
much less the right to file an appeal under Section 341,
is affected.
xxx xxx xxx
10. The law on the point is clear. At the stage of
investigation Section 195 has no application. We are
therefore not concerned with the question whether Section
195 applies to documents forged/fabricated prior to their
being produced in Court. That question only arises after the
Court takes cognizance. At this stage the only question is
whether the investigation should be permitted to proceed
or not. As stated above there is no ground or reason on
which the complaint/FIR can be quashed.”
(Emphasis supplied)
57. We may note that the decision of the Constitution Bench in Iqbal
Singh Marwah (supra) does not in any way express its disagreement
with the view in Raj Singh (supra) and M. Narayandas (supra). On
the contrary, a perusal of Iqbal Singh Marwah (supra) shows that the
Court has leaned in favour of giving an interpretation, which limits
the scope of Section 195 of the Cr.P.C. There is no contradiction
in invocation of Section 156(3) by the learned Magistrate, the
registration of the F.I.R. and the conduct of the investigation by the
police, with Section 195 read with Section 340 Cr.P.C. As noticed
in M. Narayandas (supra) once the investigation is completed, then
the embargo under Section 195 would come into play and the Court
would not be competent to take cognizance. However, the concerned
Court could then file the complaint for the offence mentioned in
Section 195(1)(b)(ii) on the basis of the F.I.R. and the material
collected during investigation and by following the procedure laid
down in Section 340 Cr.P.C.
58. The procedure contemplated under subsection (1) of Section 340
of the Cr.P.C. is limited to such cases, as are provided in clause
[2025] 8 S.C.R. 1135
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
(b) of subsection (1) of Section 195 of the Cr.P.C. only. Section
340 of the Cr.P.C. does not envisage a procedure with reference to
an offence described in Section 195(1)(a) of the Cr.P.C. However,
the observations made in Raj Singh (supra) and M. Narayandas
(supra), more specifically that Section 195 Cr.P.C does not have
any application at the stage of investigation holds good as regards
both Section 195(1)(a) and 195(1)(b) of the Cr.P.C. respectively. The
overall bar contemplated under Section 195 could be said to kick in
only at the stage of cognizance.
E. CONCLUSION
59. We may summarize our final conclusion as under:
(i) Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking
cognizance of any offence punishable under Sections 172 to
188 respectively of the I.P.C., unless there is a written complaint
by the public servant concerned or his administrative superior,
for voluntarily obstructing the public servant from discharge of
his public functions. Without a complaint from the said persons,
the court would lack competence to take cognizance in certain
types of offences enumerated therein.
(ii) If in truth and substance, an offence falls in the category of
Section 195(1)(a)(i), 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. However, it also cannot be laid down as
a straitjacket formula that the Court, under all circumstances,
cannot undertake the exercise of splitting up. It would depend
upon the facts of each case, the nature of allegations and the
materials on record.
(iii) Severance of distinct offences is not permissible when it would
effectively circumvent the protection afforded by Section 195(1)
(a)(i) of the Cr.P.C., which requires a complaint by a public
servant for certain offences against public justice. This means
that if the core of the offence falls under the purview of Section
195(1)(a)(i), it cannot be prosecuted by simply filing a general
complaint for a different, but related, offence. The focus should
be on whether the facts, in substance, constitute an offence
requiring a public servant’s complaint.
1136 [2025] 8 S.C.R.
Supreme Court Reports
(iv) In the aforesaid context, the courts must apply twin tests. First,
the courts must ascertain having regard to the nature of the
allegations made in the complaint/FIR and other materials on
record whether the other distinct offences not covered by Section
195(1)(a)(i) have been invoked only with a view to evade the
mandatory bar of Section 195 of the I.P.C. and secondly, whether
the facts primarily and essentially disclose an offence for which
a complaint of the court or a public servant is required.
(v) Where an accused is alleged to have committed some offences
which are separate and distinct from those contained in Section
195, Section 195 will affect only the offences mentioned therein.
However, the courts should ascertain whether such offences
form an integral part and are so intrinsically connected so
as to amount to offences committed as a part of the same
transaction, in which case the other offences also would fall
within the ambit of Section 195 of the Cr.P.C. This would all
depend on the facts of each case.
(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively
do not control or circumscribe the power of the police to
investigate, under the Criminal Procedure Code. Once
investigation is completed then the embargo in Section 195
would come into play and the Court would not be competent
to take cognizance. However, that Court could then file a
complaint for the offence on the basis of the FIR and the material
collected during investigation, provided the procedure laid down
in Section 340 of the Cr.P.C. is followed.
60. In view of the aforesaid, 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.
61. Registry shall circulate one copy each of this judgment to all the
High Courts.
Result of the case: Petition disposed of.
†
Headnotes prepared by: Divya Pandey
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