Prosecution under Section 186 IPC requires a written complaint from the concerned public servant as per Section 195 Cr.P.C.

ORAL JUDGMENT

1. By way of this application filed under Section 482 of the Code of Criminal Procedure , the applicant, original accused, has prayed to quash and set aside the complaint being C.R. No. II – 3064 of 2014 registered with Anandnagar Police Station, Ahmedabad under Section 186 of IPC and all consequential proceedings initiated in pursuance thereof.

2. The facts in brief are as under:

On 09.04.2014, at around 1815 hrs., the petitioner herein was going to some place on his motor-cycle. Near a crossing, he stopped his motor- cycle at the traffic signal. At that time, he noticed that a Home Guard personnel, who was on duty at the cross-roads, had stopped a motor- cyclist with a pillion. They were into some arguments for allegedly breaking the traffic signal. The petitioner herein intervened and inquired with the Home Guard as to why he had used abusive language at the motor-cyclist. It is the say of the petitioner that as the Home Guard personnel had used abusive language at him, he had called the Police Control Room. The police party reached the spot and inquired into the events and ultimately, filed the impugned complaint against the petitioner.

3. Heard learned advocates on both the sides. In this case, the offence under Section 186 of Indian Penal Code has been invoked. It is a well settled law that the invocation of Section 186 of IPC is subject to the provisions of Section 195 Cr.P.C. For our purpose, clause (a) of sub-

section (1) of Section 195 is relevant. It reads thus:

“195. Prosecution for contempt of lawful authority of public servants, 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 (45 of 1860), or (ii) of any abetment of, 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;…..”

3.1 A plain reading of the above provision shows that it bars the Court from taking cognizance of any offence punishable under Sections 172 to 188 or abetment or attempt to commit the same; unless there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of public servant. The legislative intent behind such a provision is that an individual should not face criminal prosecution instituted upon insufficient grounds by a person actuated by malice. 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 unless and until a complaint has been made by some particular authority or person.

4. In the case of Daulat Ram v. State of Punjab , AIR 1962 SC 1206 , the Apex Court considered the nature of the provision of Section 195 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 public servant concerned, the Tahsildar, had not filed any complaint. The Court held as under:

“4. ….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.

5. The appeal is, therefore,