Complaint Within Meaning Of CrPC Is One Filed Before Judicial Magistrate & Not Executive Magistrate : Supreme Court

The Supreme Court stated that a complaint within the meaning and scope of the Criminal Procedure Code is a complaint filed before a Judicial Magistrate and not an Executive Magistrate.The Court held that a complaint filed before an Executive Magistrate cannot be regarded as a complaint filed in terms of Section 195 of the CrPC.To support this, Section 2(d), which defines complaint was referred to. The Court also placed its reliance on Gulam Abbas v. State of U.P., (1982) 1 SCC 71 which discussed the difference between a judicial and an executive magistrate, “Thus, a 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 of Justices B. V. Nagarathna and Nongmeikapam Kotiswar Singh stated. The present case revolved around the FIR filed against the appellant under Section 186 (Obstructing public servant in discharge of public functions) and Section 353 (Assault or criminal force to deter public servant from discharge of his duty). Though the appellant had approached the High Court for the quashing, the plea was rejected on the basis of FIR as well as witnesses' statement given under Section 161 of the code. Thus, the present appeal. At the outset, the Court explained the different approaches of the criminal justice system in cognizable and non-cognizable cases. Given that cognizable cases are more serious in nature, the police are empowered to immediately start the investigation. However, in non-cognizable cases, an entire procedure is to be followed. “Thus, even if the police receives any such complaint relating to non-cognizable offence, the police cannot start investigation without there being a green signal from the Magistrate. Further, when such noncognizable offence(s) pertaining to officials who are obstructed from discharging their official duties, there is the 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/Magistrate.” Elaborating, the Court said that this safeguard is to ensure that only genuine complaints are entertained by the Magistrate. “With these safeguards, the fine balance between the liberties of the citizens and the imperatives of the State endowed with coercive authority to maintain law and order is preserved.,” the Court said. Keeping this background in place, the Court observed that in the present case no such complaint was filed by the public servant. It is important to note that Section 195 of the code (Prosecution for contempt of lawful authority of public servants) mandates that cognizance for offence under Section 186 IPC can be taken only on a complaint filed by a public servant before the Magistrate. “Therefore, if it is found as contended by the appellant that in respect of the offence under Section 186 of the IPC against him, no such complaint was filed by the concerned public servant as contemplated under Section 195 (1)(a) CrPC, the CJM could not have taken cognizance of the offence under Section 186 of the IPC.” Adverting to the submissions of the State that a complaint was filed by the District Probation Officer to the City Magistrate, the Court categorically that the complaint must be addressed to the judicial magistrate. “Further, 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.,” the Court stated. Stressing that a written complaint by the public servant before the Trial Court is a sine qua non, the Apex Court marked the cognizance taken by the Trial Court under Section 186 of IPC as “illegal”. “Under such circumstances, we are satisfied that the appellant has been able to make out a case that taking cognizance of the offence under Section 186 of the IPC by the Court of CJM, Varanasi, was illegal, as before taking such cognizance it was to be preceded by a complaint in writing by a public servant as required under Section 195(1) of the CrPC. A written complaint by a public servant before the court takes cognizance is sine qua non, absence of which would vitiate such cognizance being taken for any offence punishable under Section 186 of the IPC.” In so far as Section 353 is concerned, the Court explained that for an act to fall under this Section, it must involve either assault or criminal force. However, in the present FIR there is no mention of both of the said requirements. Mere obstruction is not enough as Section 353 is of aggravated nature as compared to Section 186. The Bench referred to the landmark case of State of Haryana Vs. Ch. Bhajan Lal and Ors. wherein the Court had laid down...

Complaint Within Meaning Of CrPC Is One Filed Before Judicial Magistrate & Not Executive Magistrate : Supreme Court

Gyanvi Khanna

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