The main legal point established in the judgment is that the court cannot take cognizance of the offence under Section 186 of the IPC without a complaint being filed by the public servant concerned, as per Section 195(1)(a) of the Code of Criminal Procedure.

JUDGMENT :

By way of this petition under Section 482 of the Code of Criminal Procedure, the petitioner seeks challenge the quashment of the FIR registered as CR No.II-61 of 2015 with A Division Police Station, Rajkot for the offence punishable under Section 186 of the Indian Penal Code.

2. The facts which can be garnered from the FIR is that the petitioner is a businessman involved in the transportation business and on 17/10/2015 at about 11:00 hours, respondent no.2 went to the offence of the petitioner for serving summons issued in the name of aged father of the petitioner which pertains to Criminal Case No.6145 of 1999. According to the petitioner, at the relevant time, office was under renovation and the labourer present there asked the Constable to visit the second office. It is alleged that respondent no.2 had visited the second office of the petitioner and used unparliamentary language threatening the petitioner with the dire consequences. Since the petitioner did not accept the summons which was in the name of the aged father of the petitioner, some dispute took place between both the parties. In the background of above facts, respondent No.2 filed the FIR alleging that the petitioner has obstructed him in performing or discharging his public duty.

3. Learned Advocate for the petitioner firstly submit that the FIR in question is a counter-blast which came to be lodged by the Police Constable to save his skin as he has made ruckus and used unparliamentary language. He would further submit that there is no obstruction at the hand of the petitioner preventing the respondent no.2 to discharge his duty.

3.1 Mr.Jasani would further press into service Section 195(1)(a) of the Code of Criminal Procedure and submits that until complaint filed by the public servant concerned, no Court shall be permitted to take cognizance for any offence punishable under Section 176 and 186 of the IPC. He would further submit that the complaint which is defined in Section 2(d) of the Code of Criminal Procedure is not filed in the present case. He would further submit that Court has no authority to take cognizance upon FIR in view of specific bar operating under Section 195(1) (a) of the Code. Thus, considering the submissions made, he prayed to quash the FIR.

4. Learned APP submits that having gone through Section 195 of the Code, appropriate order may be passed.

5. At the outset, this Court would like to refer to Section 195(1)(a) of the Code which reads thus;

“(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;”

5.1 The complaint is defined in Section 2(d) of the Code which reads thus:

“2 (d) " complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action 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;”

6. Thus, the complaint means any allegation made in oral or writing to the Magistrate with a view to his taking action under the Code for alleged offence. The complaint would not include the police report. In other words, complaint cannot be equated with FIR/police report. Complaint is filed with Magistrate while FIR is to be registered by Police.

7. Section 195(1)(a) of the code specifically bars taking cognizance of the offence under Section 186 of the IPC; except complaint is filed. In other words, the Court is not