Supreme Court: In a criminal appeal against a decision of Allahabad High Court, wherein the accused person’s plea for quashing of the chargesheet and order taking cognizance and issuing summons along with the proceedings for an alleged offence under Sections 353 and 186 of the Penal Code, 1860 (‘IPC’), was rejected, the Division Bench of B.V. Nagarathna and N. Kotiswar Singh, JJ. allowed the appeal and set aside the impugned decisions. The Court quashed the case pending before CJM holding that non-mentioning of vital facts in the FIR/first complaint, which would indicate assault or criminal force within the scope of Section 353 of the IPC, would vitiate the cognizance taken by the CJM.
Factual Matrix
The accused person managed and maintained the hostel, which was operated by a Non-Governmental Organization, named Sampoorna Development India. This hostel was used for underprivileged children at the time by providing facilities for their accommodation, education, and other needs. The accused person alleged that six false cases were instituted against him, four of them resulted in his acquittal, while the other two discharge applications were pending. A raid was conducted in the 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’) as applicable then. The officials sought to transfer the children accommodated in the hostel to some other location purportedly on the grounds that the hostel was being run without proper authorization from the competent authority under the JJ Act.
An FIR was lodged against the accused person and his wife for an offence under Section 353 of the IPC and on the basis of the same, the accused person was arrested on 08-06-2015. However, he was granted bail on the same day. Subsequently, on completion of the investigation, a chargesheet was filed before the Chief Judicial Magistrate, Varanasi alleging the commission of offences under Sections 353 and 186 of the IPC. Cognizance was taken and a summons was issued.
The High Court jurisdiction under Section 482 of the CrPC was invoked seeking quashing of the aforesaid proceedings, and orders taking cognizance and issuing summons. The High Court rejected the same holding that a prima facie case was made out against the accused person.
Analysis and Decision
The Court noted that the accused was charged for offences under Sections 186 and 353 of the IPC. Perusing Section 195(1) of the CrPC, the Court said that there is a bar on the Court to take cognizance of any offence punishable under Section 172 to 188 (both inclusive) of the IPC except on a complaint in writing made by the concerned public servant to the Court. The Court noted that, in respect of the offence under Section 186 of the IPC, the accused submitted that there was no such complaint filed by the public servant concerned as contemplated under Section 195 (1)(a) of the CrPC, hence, the CJM could not have taken cognizance of the offence under Section 186 of the IPC. The Court also noted that the State did not refute the same stand.
However, the Court noted that a complaint was filed by the District Probation Officer to the City Magistrate, Varanasi, on 03-06-2015, alleging that the accused and his party were creating obstructions to the officials in the process of sending the minor children residing in the institution run illegally to other approved institutions and requested the City Magistrate to take cognizance of the same and take legal action. Perusing the said complaint, the Court pointed out that letter/ complaint was addressed to the City Magistrate and not to any Judicial Magistrate. Referring to Section 2(d) of the CrPC, the Court said that a complaint within the meaning and scope of the CrPC would mean such a complaint filed before a Judicial Magistrate and not an Executive Magistrate. The Court added that the Magistrate referred to under Section 155 of the CrPC is — “a Magistrate who has the power to try such case or commit the case for trial and thus exercises judicial function, he has to be a Judicial Magistrate”. Further, the Court stated that under Section 195(1) of the CrPC read with Section 2(d) of the CrPC, the complaint has to be filed before the Court taking cognizance, and the complaint which is required to be filed under Section 195(1) of the CrPC, can only be before a Judicial Magistrate and not an Executive Magistrate who does not have the power to take cognizance of an offence or try such cases.
In the matter at hand, the complaint was filed before the City Magistrate and not before a Judicial Magistrate, hence, the requirement of Section 195(1) of the CrPC was not fulfilled. Therefore, the Court held that a case was made out that taking cognizance of the offence under Section 186 of the IPC by the CJM, Varanasi, was illegal, as before taking such cognizance it was sine qua non preceded by a written complaint by a public servant as required under Section 195(1) of the CrPC.
Regarding the issue of whether cognizance taken of the offence under Section 353 of the IPC by the CJM, Varanasi, was in order or not, the Court explained that for an act to come within the scope of Section 353 of the IPC, it 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 the IPC. The Court stated that Section 353 of the IPC is the aggravated form of offence where criminal force or assault is involved. Unlike in the case of Section 186 of the IPC where voluntarily obstructing any public servant in the discharge of his official function is sufficient to invoke the said section, in the case of Section 353 of the IPC, not only obstruction but actual use of criminal force or assault on the public servant is necessary.
Perusing the FIR, the Court said that there was no allegation of the use of criminal force or assault by the accused to invoke the provision of Section 353 of the IPC. The Court reiterated that a criminal process is initiated only with the lodging of an FIR. Though FIR is not supposed to be an encyclopaedia containing all the detailed facts of the incident and it is merely a document that triggers and sets into motion the criminal legal process, yet it must disclose the nature of the offence alleged to have been committed as otherwise, it would be susceptible to being quashed. The Court added that except for the offence of obstruction, which is punishable under Section 186 of the IPC, no allegations for use of criminal force was made out. Therefore, the Court held that the ingredients of an offence under Section 353 of the IPC were clearly absent in the FIR. Hence, cognizance by the CJM of an offence that is not made out in the FIR was incorrect.
Further, the Court added that the alleged assault, or use of criminal force by the accused could not be said to have been discovered at a later point of time, as these offensive acts, if really had happened, would have happened before the filing of the FIR/complaint and thus should have been mentioned in the FIR. Thus, the absence of mentioning these alleged acts which would constitute ingredients of the offence under Section 353 of the IPC, rendered the FIR legally untenable as far as the offence under Section 353 of the IPC is concerned.
The Court noted that it was alleged that disturbance was created, to which the Court said that there is a sea of difference between ‘creating disturbance’, ‘assault’ and ‘criminal force’ terms mentioned under Section 353 of the IPC and defined under Sections 350 and 351 of the IPC respectively. The Court stated that- “if ‘disturbance’ is construed as ‘assault’ or ‘criminal force’ without there being specific acts attributed to make such ‘disturbance’ as ‘assault’ or ‘criminal force’ within the scope of Section 353 of the IPC, it would amount to abuse of the process of law.”
CASE DETAILS
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CORAM :
B.V. Nagarathna, J.
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