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SUPREME COURT OF INDIA
B. V. NAGARATHNA, NONGMEIKAPAM KOTISWAR SINGH, JJ.
B.N. John – Appellant
Versus
State Of U.P. & Anr. – Respondents
Criminal Appeal No. of 2025 (@ Special Leave Petition (Crl.) No. 2184 of 2024)
Decided On : 02-01-2025
(A) Criminal Procedure Code, 1973 – Sections 155 and 156 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 174 and 175] – Investigation of non-cognizable cases – Even if police receives any such complaint relating to non-cognizable offence, police cannot start investigation without there being a green signal from Magistrate – When such non-cognizable offence(s) pertaining to officials who are obstructed from discharging their official duties, there is additional safeguard before Magistrate which permits investigating authority to investigate – It must be preceded by a complaint filed by a public servant before Court/Magistrate – This is to ensure that only genuine complaints relating to non-serious offences or non-cognizable offences are entertained by Magistrate – In a democracy, interactions of citizen with public servants is more frequent in wherein there may be instances where members of public cause obstruction to public servants preventing them from discharging public duties properly – With these safeguards, fine balance between liberties of citizens and imperatives of State endowed with coercive authority to maintain law and order is preserved. (Para 9)
(B) Indian Penal Code, 1860 – Section 186 [Bharatiya Nyaya Sanhita, 2023 – Section 221] – Criminal Procedure Code, 1973 – Sections 195(1) and 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 215 and 528] – Obstruction to public servant – Complaint within meaning and scope of Criminal Procedure Code would mean such complaint filed before a Judicial Magistrate and not an Executive Magistrate who does not have power to take cognizance of an offence or try such cases – Written complaint by a public servant before court takes cognizance is sine qua non, absence of which would vitiate such cognizance being taken for any offence punishable under Section 186 of IPC – Appellant has been able to make out a case that taking cognizance of offence under Section 186 of IPC by Court of CJM, was illegal, as before taking such cognizance it was to be preceded by complaint in writing by a public servant as required under Section 195(1) of Cr.P.C. (Paras 17, 19 and 21)
(C) Indian Penal Code, 1860 – Sections 353 and 186 [Bharatiya Nyaya Sanhita, 2023 – Section 132] – Criminal Procedure Code, 1973 – Sections 195(1) and 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 215 and 528] – Assault on public servant – For a prohibited act to come within the scope of the offence under Section 353 of IPC, such an act must qualify either as an assault or criminal force meant to deter public servant from discharge of his duty – Such an act cannot be a mere act of obstruction which is an offence under Section 186 of IPC – Offence contemplated under Section 353 of IPC is of a more serious nature involving criminal force – Not only obstruction but actual use of criminal force or assault on public servant is necessary – In present case, in FIR, no such allegation of assault or use of criminal force has been made – Since no ingredient for offence under Section 353 of IPC is found in FIR, taking cognizance by CJM of an offence that is not made out in FIR does not appear to be correct – Even if it is assumed that in course of investigation of a cognizable offence, ingredients of a non-cognizable offence are discovered then police could have continued investigation without written complaint to court or order of court in respect of such non-cognizable offence, as it would also be deemed to be a cognizable offence under Section 155(4) of Cr.P.C., but where investigation of the cognizable office itself suffers from legal infirmity and without jurisdiction from initial stage, entire investigation would be vitiated – Impugned order of High Court set aside and criminal proceedings quashed. (Paras 23, 24, 25, 26, 35, 37, 42 and 43)
(D) Constitution of India – Article 141 – Binding Precedent – In limine dismissal of a Special Leave Petition at threshold without giving any detailed reasons does not constitute any declaration of law or a binding precedent under Article 141 of Constitution – Decision of High Court and dismissal in limine by Supreme Court will not come in way of disposal of present appeal on merits. (Para 40)
Facts of the case:
Present appeal has been preferred being aggrieved by Judgment dated 22.09.2023 passed by High Court of Judicature at Allahabad under Section 482 of Code of Criminal Procedure, 1973 in Application No. 35311 of 2023 by which appellant’s plea for quashing of charge-sheet No.162 of 2015 dated 20.06.2015, order dated 11.08.2015 taking cognizance and issuing summons, and entire proceedings in Case No. 9790 of 2015 arising out of Case Crime No. 290 of 2015 under Sections 353 and 186 of Indian Penal Code, 1860 was rejected.
Findings of Court:
Taking cognizance by the CJM, Varanasi, of the offences under Section 353 of the IPC and 186 of the IPC was not done by following the due process contemplated under the provisions of law, and accordingly, the same being contrary to law, all the orders passed pursuant thereto cannot be sustained and would warrant interference from this Court.
Result : Appeal allowed.
Certainly. Based on the provided legal document, here are the key points:
Investigation of Non-Cognizable Cases: Police cannot initiate investigation into non-cognizable offences without a Magistrate’s approval, even if they receive a complaint related to such offences. For offences involving officials obstructed from discharging their duties, an additional safeguard requires a prior written complaint by a public servant before a court or Magistrate (!) .
Requirement of Written Complaint by Public Servant: For offences under Section 186 of the IPC related to obstruction of public servants, a written complaint by the concerned public servant before a court or Magistrate is a sine qua non for the court to take cognizance. Absence of such a complaint renders the cognizance illegal (!) (!) .
Distinction Between Obstruction and Assault: An act of obstruction, which falls under Section 186 of the IPC, is different from an assault or use of criminal force under Section 353 of the IPC. To invoke Section 353, there must be an actual assault or criminal force intended to deter a public servant from discharging their duties. Mere obstruction does not qualify (!) (!) .
Validity of the Complaint and FIR: The FIR must disclose the ingredients of the offence, including specific acts of assault or criminal force if Section 353 is invoked. In this case, the FIR only alleged creating disturbance and obstruction, without any specific acts of assault or use of criminal force, making the offence under Section 353 not made out. The absence of such allegations renders the cognizance under Section 353 invalid (!) (!) .
Proper Court for Filing Complaints: A complaint within the scope of the CrPC must be filed before a Judicial Magistrate, not an Executive Magistrate. The complaint filed by the District Probation Officer was addressed to an Executive Magistrate, which does not meet the legal requirement for initiating cognizance under the relevant sections (!) (!) .
Due Process and Jurisdiction: The initial order of cognizance was found to be contrary to law because it was based on an FIR that did not disclose a cognizable offence under the relevant sections, and the complaint was not made before a Judicial Magistrate. This procedural infirmity invalidates subsequent proceedings (!) (!) .
Effect of In Limine Dismissal: Dismissal of a Special Leave Petition at the threshold without detailed reasons does not establish a legal precedent or constitute a binding declaration of law. Such dismissals do not affect the merits of the case and do not prevent further legal examination (!) (!) .
Final Order: The court held that the proceedings initiated against the appellant under Sections 353 and 186 of the IPC were not in accordance with due process of law. Consequently, the criminal proceedings and orders of cognizance were quashed, and the impugned order was set aside (!) .
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JUDGMENT
NONGMEIKAPAM KOTISWAR SINGH, J.
Leave granted.
2. The present appeal has been preferred being aggrieved by the judgment dated 22.09.2023 passed by the High Court of Judicature at Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’ for short) in Application No. 35311 of 2023 by which the appellant’s plea for quashing of the chargesheet No.162 of 2015 dated 20.06.2015, order dated 11.08.2015 taking cognizance and issuing summons, and the entire proceedings in Case No. 9790 of 2015 arising out of Case Crime No. 290 of 2015 under Sections 353 and 186 of the Indian Penal Code, 1860 (‘IPC’ for short), P.S. Cantt. District Varanasi, U.P., was rejected.
FACTUAL BACKGROUND
3. It is the plea of the appellant that he is the owner of the premises and was in charge of managing & maintaining the hostel, which was being operated by a Non-Governmental Organization, named Sampoorna Development India. This hostel at the relevant time was used for underprivileged children by providing facilities for their accommodation, education and other needs.
3.1 According to the appellant, because of certain personal disputes with one K.V. Abraham, the latter instituted six false cases against him, four of them resulted in his acquittal, while in the other two discharge applications are pending. According to the appellant, it was at the instance of the said Abraham that the officials conducted a raid in the said hostel arbitrarily without authorization and also without providing any prior notice, alleging that provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’ for short) as applicable then, were not followed in running and managing the said hostel.
3.2 It is the allegation of the appellant that the officials illegally conducted the raid on 03.06.2015 and sought to transfer the children accommodated in the said hostel to some other location purportedly on the ground that the hostel was being run without proper authorization from the competent authority under the JJ Act.
3.3. It was further contended that a false allegation was made against the appellant that he, along with his party, had attacked and assaulted the officials while they were conducting the raid in connection with which an FIR came to be lodged against the appellant and his wife, which was registered as FIR No. 290 of 2015 dated 03.06.2015 at the PS Cantt. District, Varanasi under Section 353 of the IPC.
3.4. On the basis of the said FIR, the appellant was arrested on 08.06.2015. However, he was granted bail on the same day. Subsequently, on completion of the investigation, charge-sheet was filed before the Court of Chief Judicial Magistrate, Varanasi in connection with the said FIR on 20.06.2015 alleging commission of offences under Sections 353 and 186 of the IPC.
3.5. Pursuant to the filing of the chargesheet, the Chief Judicial Magistrate, Varanasi took cognizance and issued summons to the appellant vide order dated 11.08.2015, against which the appellant submitted an application for recalling the said order, which is pending before the Court of CJM, Varanasi.
3.6. According to the appellant, a complaint alleging commission of an offence under Section 186 of the IPC would be maintainable only if it is preceded by a complaint filed by a public servant as mentioned under Section 195 (1)(a) of the CrPC before the court/Magistrate, but there was no such prior complaint filed by any public servant before the Magistrate. Further, though the FIR was filed under Section 353 of the IPC, there were no ingredients to make out a case under the said section. It is also the case of the appellant that the authorities had maliciously invoked the penal provision of Section 353 of the IPC in the FIR merely to make out a cognizable offence against the appellant to enable the Magistrate to take cognizance, even though there was no case of any assault or use of criminal force by the appellant to deter any public servant from discharging his duty. Hence
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