Written complaint by public servant before Judicial Magistrate is mandatory for Section 186 IPC proceedings under Section 195(1)(a) of CrPC. Complaint filed to Executive Magistrate is insufficient, rendering cognizance illegal and all subsequent proceedings vitiated.

Headnote:(A) Code of Criminal Procedure, 1973 - Sections 195(1)(a), 2(d), 155(2), 156(1) - Penal Code, 1860 - Sections 186, 160, 353 - Section 195(1)(a) requires written complaint by public servant before Judicial Magistrate for offences under Sections 172-188 of IPC - Complaint filed to Executive Magistrate (City Magistrate) insufficient as per Section 2(d) of CrPC - Written complaint is sine qua non for cognizance under Section 186 IPC - FIR failed to allege assault/criminal force required under Section 353 IPC - Cognizance taken without legal basis is illegal - Entire proceedings vitiated by 'sublato fundamento cadit opus' principle - High Court failed to apply legal requirements in sustaining proceedings. (Paras 15,16,17,18,19,20,21,23,27,35)

(B) Cognizable vs. non-cognizable offence distinction - Police cannot investigate non-cognizable offence without Magistrate's order - Section 186 IPC is non-cognizable offence requiring prior complaint - Mere 'obstruction' allegations do not suffice for Section 353 IPC which requires assault/criminal force - Absence of specific details in FIR for Section 353 offense invalidates cognizance - Initial procedural irregularity vitiates all subsequent proceedings. (Paras 8,9,10,11,12,13,23,24,26,33)

Facts of the case:
Petitioners were charged under Sections 186 and 160 IPC for allegedly obstructing public servants in discharge of duties. Police registered FIR after District Probation Officer filed complaint alleging 'Mr. B.N. John and their people were creating obstruction' to sending children to approved institutions. Complaint was filed to City Magistrate (Executive Magistrate), not Judicial Magistrate. FIR did not contain specific allegations of assault or criminal force required for Section 353 IPC.

Findings of Court:
The complaint filed with Executive Magistrate did not satisfy Section 2(d) definition of 'complaint' requiring Judicial Magistrate. Written complaint before Judicial Magistrate was mandatory for Section 186 IPC but was not filed. FIR lacked specific allegations of assault/criminal force required for Section 353 IPC. Initial legal infirmity in FIR/vitiated all subsequent proceedings.

Issues: 1. Whether cognizance for Section 186 offences was legally taken without written complaint from public servant before Judicial Magistrate as required under Section 195(1)(a) of CrPC. 2. Whether FIR alleging only 'obstruction' sufficed to establish offence under Section 353 IPC requiring specific allegations of assault/criminal force.

Ratio Decidendi: Section 195(1) mandates written complaint by public servant to Court (Judicial Magistrate) for Section 186 offences. Written complaint to Executive Magistrate is legally insufficient. Section 353 IPC requires specific allegations of assault/criminal force, which were absent. Initial procedural illegality creates a foundationless structure (sublato fundamento cadit opus) making all subsequent proceedings illegal.

Result: Appeals allowed. All proceedings in Case Crime No. 290 of 2015 under Sections 353 and 186 of IPC were quashed along with all consequential orders.

ORAL ORDER

In this Petition, Petitioners seek the following reliefs:

"i. Call for records; Allow this Criminal Petition and quash the entire proceedings in CC.No.50876/2020 on the file of learned XXIX Addl. C.M.M. Mayohall Unit, Bengaluru in C.C.No.50876/2020 including the order dated: 21-01-2020 of taking cognizance, discharge order dated 08-02-2024, FIR, Complaint and Charge sheet in Crime No.413/2019 registered by Respondent Ashoknagar Police for the offences alleged under section 186 and 160 of IPC , in the interest of justice and equity. (produced at DOCUMENT No.1, 2, 3, 4 and 5).

ii. Grant such other or further relief deems fit to grant in the circumstances of the case with cost and expenses in the interest of justice."

2. Heard the learned Sr. Counsel for the Petitioners, learned HCGP for Respondent and perused the material on record.

3. A perusal of the material on record will indicate that on 01.12.2019, suo moto FIR was registered against the Petitioners for the alleged offences p/u/s 186 and 160 of IPC . In pursuance of the same, investigation was conducted and culminated in the impugned charge sheet which is pending in CC No.50876/2020. In this context, it is relevant to state that in the light of provisions contained in Section 195 (1A) of the CR.P.C., it was incumbent upon the Respondent - police to register FIR only pursuant to complaint (private complaint) under Section 2(D) of Cr.P.C., failing which, the impugned FIR would be illegal, arbitrary and without jurisdiction or authority of law as held by the Apex Court in the case of B N JOHN v. STATE OF U.P. AND ANOTHER , reported in2025 SCC OnLine SC 7, it has been observed as follows:

"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 Date: 2025.01.02 16:15:09 IST Reason: 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, whic

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2025 Supreme(Online)(Kar) 19190

Written complaint by public servant before Judicial Magistrate is mandatory for Section 186 IPC proceedings under Section 195(1)(a) of CrPC. Complaint filed to Executive Magistrate is insufficient, rendering cognizance illegal and all subsequent proceedings vitiated.

Cases Referred (4)