Their Lordships of Hon'ble Supreme Court in the case of C.
Muniappan and others v. State of Tamilnadu, reported in (2010) 9 SCC
567 have held that the legislative intent behind Section 195 (1) (a) (i)
Cr.P.C. read with section 188 is that an individual should not face criminal
prosecution instituted upon insufficient grounds by persons actuated by
malice, ill will or frivolity of disposition and to save the time of the criminal
courts being wasted by endless prosecutions. There must be a complaint
by the public servant whose lawful order has not been complied with. The
complaint must be in writing. The provisions of Section 195 Cr.PC are
mandatory. The Court cannot 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. Their lordships
have held as under:
“33. Thus, in view of the above, the law can be summarized
to the effect that there must be a complaint by the public
servant whose lawful order has not been complied with. The
complaint must be in writing. The provisions of Section 195
Cr.PC are mandatory. Non-compliance of it would vitiate the
prosecution and all other consequential orders. The Court
cannot 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.”
37. The complaint filed under the signatures of SHO, PS
Dharamshala cannot be termed as complaint under Section 195 (1) (a)
Cr.P.C. The complaint could only be filed by the officer concerned.
38. Now, the Court will advert to whether there was sufficient
material to proceed against the accused for committing offence under
Section 186 IPC. In the complaint based on DDR Nos. 12(A) & 15(A), it is
stated that Insp. Jagdish Chand and other staff members were present in
Police Station (SV & ACB), Dharamshala and the accused initially entered
the Police Station and thereafter went to the Office of Superintendent of
Police (SV & ACB). They disrupted the government administration for half
an hour. It is not stated that what duties were being discharged by those
police officers/officials present in the Police Station and which one of them
was obstructed voluntarily from discharging official functions. In order to
attract the provisions of Section 186 IPC, it has to be seen whether the
public servant in the discharge of his public functions has been voluntarily
obstructed or not. It is reiterated that what mentioned in the complaint is
that the government administration was disrupted for half an hour. Merely
the disruption of government administration without mentioning that the
public servants were obstructed voluntarily from discharge of their public
functions would not attract Section 186 IPC.
39. The learned Single Judge of the Patna High Court in the case
of Janki Prasad Tibrewal and others v. The State of Bihar, reported in
1975 Crl. LJ 575 has held that the expression 'obstruct' used in Section
186 of the Indian Penal Code envisages actual resistance and obstacle in
the way of public servant and it implies use of criminal force. It has been
held as under:
“[7] Considering these decisions it is clear that the real test is
whether the facts alleged against an accused disclosed two
distinct offences or whether the facts disclosed primarily an
offence for which a complaint by a public servant is required,
The main allegation which has been made in this case against
the petitioners is that they voluntarily obstructed the Dalpati
and the Mukhia who are public servants in the discharge of
their duties as such. The expression 'obstruct' used in Section
186 of the Indian Penal Code envisages actual resistance and
obstacle in the way of public servant and it implies use of
criminal force. So if these petitioners are alleged to have
assaulted the Dalpati and the Mukhia in the course of
voluntarily obstructing the public servant from discharging
their duties, the offences under Sections 323, 324 and 353 of
the Indian Penal Code are so connected with the primary
offence of Section 186 of the Indian Penal Code that it is
difficult to say that those offences constituted separate
offences other than an offence under Section 186 of the Indian
Penal Code. The very fact of obstruction in the instant case
implies assault and hurt to the public servant concerned and
so the primary offence alleged to have been committed by these
petitioners is one under Section 186 of the Indian Penal Code
and if cognizance is taken of the offences on the basis of police
report only under Sections 323, 324 and 353 of the Indian
Penal Code, it will amount to circumventing the provisions of
Section 195 of the Code which is not permissible in law.”
40. What emerges from the discussion is that Section 195 (1)(a) of
Cr.P.C. has not been complied with. Section 195 Cr.P.C. is mandatory.
The power to file the complaint could not be delegated to SHO, Police
Station, Dharamshala. The complaint should have been initiated at the
instance of the public servant concerned or his superior officer. Thus, in
view of the matter, the learned Chief Judicial Magistrate, Dharamshala had
no jurisdiction in the case as there was no complaint in writing before him
by the public servant concerned or his superior. The material placed on
record was not sufficient to initially permit the investigation of the case and
thereafter to summon the accused and put them to notice of accusation.
