Offences Connected To S.172-188 IPC Can't Be Split Up To Bypass S.195 CrPC Bar : Supreme Court Lays Down Principles

The Supreme Court on Wednesday (Aug. 20) clarified that while Section 195 Cr.P.C. bars a magistrate from taking cognizance of offences under Sections 172–188 IPC unless the concerned public servant files a complaint, the bar also extends to other offences that are so closely connected with those provisions that they cannot be split up.

After discussing precedents, the Court observed :

"Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant who was voluntarily obstructed in the discharge of his public functions. The complaint must be in writing. The provisions of Section 195 Cr.P.C. are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction.”

The Court further clarified that Section 195 CrPC places a bar on cognizance, not on investigation. While the police may investigate cognizable offences, a magistrate cannot take cognizance of an offence under Section 186 IPC on a police report. Cognizance can only be taken on a written complaint by the concerned public servant or their superior.

The bench comprising Justices J.B. Pardiwala and R. Mahadevan heard the case where a court process server alleged that he was mistreated at a Delhi police station while attempting to serve summons and warrants. He claimed that the Station House Officer (SHO), Devendra Kumar, abused him, forced him to stand with raised hands as punishment, and detained him for hours, preventing him from discharging his duty.

The process server reported the incident to the District Judge, who referred it to an Administrative Civil Judge. The Civil Judge then filed a written complaint under Section 195(1)(a) CrPC before the Chief Metropolitan Magistrate (CMM). Instead of taking cognizance directly, the CMM directed the police to register an FIR under Section 156(3) CrPC for offences under Sections 186 (obstructing a public servant from fulfilling his legal duties) and 341 (wrongful restraint) IPC.

Pursuant to the dismissal of his plea against FIR registration before the Sessions Court and High Court, the Petitioner-SHO moved to the Supreme Court.

Criticizing the CMM's direction for FIR registration under Section 156(3) CrPC when he could have directly taken a cognizance of the offence under Section 195, the judgment authored by Justice Pardiwal,a although refused to quash the FIR, left it open for the Petitioner to raise the bar of Section 195 before the trial court at the appropriate stage.

The Court also explained that where an offence under Section 186 IPC is closely linked with another offence (such as wrongful restraint under Section 341 IPC), the offences cannot be “split up” to bypass the bar under Section 195.

Only when the other offence is truly distinct and unconnected can it be separately prosecuted, the court said.

“It is true that Section 195 of the Cr.P.C. does not bar the trial of an accused for a distinct offence disclosed by the same set of facts and is not so stated therein. Section 195 also does not provide further that if in the course of the commission of that offence, other distinct offences are committed, the court concerned is debarred from taking cognizance in respect of those offences as well. However, having said so, if the perusal of the first information report makes it clear that the offence under Section 186 of the I.P.C. is closely interconnected with another distinct offence(s), which in this case is Section 341 of the I.P.C. and it cannot be split up, then in such circumstances, the bar of Section 195 of the Cr.P.C. will apply to such other distinct offence also.”, the court observed.

“once the investigation is completed, then the embargo under Section 195 would come into play and the Court would not be competent to take cognizance. However, the concerned Court could then file the complaint for the offence mentioned in Section 195(1)(b)(ii) on the basis of the F.I.R. and the material collected during investigation and by following the procedure laid down in Section 340 Cr.P.C.”, the court added.

In this regard, the Court laid down the following principles to be followed while dealing with a category of offences that fall within the protective sphere of Section 195 CrPC.

(i) Section 195(1)(a)(i) of the Cr.P.C. bars the court from taking cognizance of any offence punishable under Sections 172 to 188 respectively of the I.P.C., unless there is a written complaint by the public servant concerned or his administrative superior, for voluntarily obstructing the public servant from discharge of his public functions. Without a complaint from the said persons, the court would lack competence to take cognizance in certain types of offences enumerated therein.

(ii) If in truth and substance, an offence falls in the category of Section 195(1)(a)(i), it is not open to the court to undertake the exercise of splitting them up and proceeding further against the accused for the other distinct offences disclosed in the same set of facts. However, it also cannot be laid down as a straitjacket formula that the Court, under all circumstances, cannot undertake the exercise of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record.

(iii) Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the Cr.P.C., which requires a complaint by a public servant for certain offences against public justice. This means that if the core of the offence falls under the purview of Section 195(1)(a)(i), it cannot be prosecuted by simply filing a general complaint for a different, but related, offence. The focus should be on whether the facts, in substance, constitute an offence requiring a public servant's complaint.

(iv) In the aforesaid context, the courts must apply twin tests. First, the courts must ascertain having regard to the nature of the allegations made in the complaint/FIR and other materials on record whether the other distinct offences not covered by Section 195(1)(a)(i) have been invoked only with a view to evade the mandatory bar of Section 195 of the I.P.C. and secondly, whether the facts primarily and essentially disclose an offence for which a complaint of the court or a public servant is required.

(v) Where an accused is alleged to have committed some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein. However, the courts should ascertain whether such offences form an integral part and are so intrinsically connected so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of Section 195 of the Cr.P.C. This would all depend on the facts of each case.

(vi) Sections 195(1)(b)(i)(ii) & (iii) and 340 of the Cr.P.C. respectively do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation, provided the procedure laid down in Section 340 of the Cr.P.C. is followed.

Also from the judgment - 'Obstruction' In S.186 IPC Not Limited To Physical Force; Means Any Impediment To Public Servant's Discharge Of Duty : Supreme Court

Cause Title: DEVENDRA KUMAR VERSUS THE STATE (NCT OF DELHI) & ANR.

Citation : 2025 LiveLaw (SC) 821

Click here to read/download the judgment