Complaint by public servant to court must for taking cognisance in non-cognisable offences: Supreme Court

New Delhi: The Supreme Court has held that filing of a written complaint by a public servant in court is a must for taking cognisance of non-cognisable offences, in order to ensure only genuine complaints are entertained in view of frequent interactions of people with public servants in a democracy.

A bench of Justices B V Nagarathna and N Kotiswar Singh said when such non-cognisable offences pertain to officials who are obstructed from discharging their official duties, there is an additional safeguard before the magistrate which permits the investigating authority to investigate. It must be preceded by a complaint filed by a public servant before the court or magistrate.

The court said when it is related to non-cognisable offence, there are certain safeguards put in place so that the invasive, intrusive, and coercive power of the police is not immediately brought into operation.

"This is to ensure that only genuine complaints relating to non-serious offences or non-cognisable offences are entertained by the Magistrate. This is so for the reason that in a democracy, interactions of the citizen with the public servants is more frequent in wherein there may be instances where the members of the public cause obstruction to public servants preventing them from discharging public duties properly," the bench said in its judgment on January 2, 2025.

The court here allowed an appeal filed by B N John against the Allahabad High Court's order of September 22, 2023, after holding taking cognisance by the Varanasi court, of the offences under Sections 353 and 186 of the IPC was not done by following the due process contemplated under the provisions of law.

The High Court refused to quash the criminal proceedings initiated against the appellant and others for offences of obstructing public servants from discharge of duties and assault or use of criminal force to deter public servants from discharge of duties. The FIR was lodged in June, 2015 against the appellants and other when they allegedly obstructed the officials during the raid at a hostel run by an NGO in Varanasi for violating provisions of the Juvenile Justice (Care and Protection of Children) Act.

Senior advocate Sidharth Luthra appearing for the appellant, contended a complaint alleging commission of an offence under Section 186 of the IPC would be maintainable only if it is preceded by a complaint filed by a public servant before the court or magistrate.

The counsel said the authorities here had maliciously invoked the penal provision of Section 353 of the IPC in the FIR merely to make out a cognisable offence against the appellant to enable the magistrate to take cognisance, even though there was no case of any assault or use of criminal force by the appellant to deter any public servant from discharging his duty.

Examining the legal provisions, the bench said, "A written complaint by a public servant before the court takes cognisance is sine qua non, absence of which would vitiate such cognisance being taken for any offence punishable under Section 186 under the IPC."

In his submission, the state counsel referred to a letter by District Probation Officer to the City Magistrate.

Referring to Section 2(d) CrPC, the bench said complaint within the meaning and scope of the Criminal Procedure Code would mean such a complaint filed before a judicial magistrate and not an executive magistrate.

The bench, however, said "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 cognisance of an offence or try such case."

The court held the order taking cognisance of the offence under Section 186 of the IPC by the Chief Judicial Magistrate, Varanasi, was illegal, as before taking such cognisance it was to be preceded by a complaint in writing by a public servant as required under Section 195(1) of the CrPC.

So far as the offence of use of criminal force and assault under Section 353 IPC was concerned, the bench noted no such allegation was made in FIR, which was based on the complaint filed by the District Probation Officer.

The court pointed out mere allegation of “creating disturbance” cannot mean use of “criminal force” or “assault” within the scope of Section 353 of the IPC.

Though the FIR is not supposed to be an encyclopedia containing all the detailed facts, yet it must disclose the nature of the offence or, it would be susceptible to being quashed, the bench said.

Even though the police recorded statements of officials including City Magistrate alleging assault, the bench said those clearly appeared to be an afterthought.

In the case, the High Court also opined that a previous order which rejected quashing of similar charges against co-accused was upheld by the apex court.

The bench said in limine dismissal of a special leave petition at the threshold without giving any detailed reasons does not constitute any declaration of law or a binding precedent under Article 141 of the Constitution.