# B.N. John v. State of U.P. & Anr

- **Citation:** 2025 INSC 4
- **Court:** Supreme Court of India
- **Decided:** 2025-01-02
- **Case number:** Criminal Appeal No. 50 of 2025
- **Bench:** B.V. Nagarathna, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/b-n-john-v-state-of-u-p-anr-38741
- **Pages:** 28

## Headnote

Appellant herein has sought quashing of criminal proceedings
arising under sections 353 and 186 of IPC.
Headnotes†
Penal Code, 1860 - s.353 and s.186 - According to the
appellant, he is the owner of a hostel used for underprivileged
children - Appellant alleges that the officials illegally conducted
the raid on 03.06.2015 and sought to transfer the children
accommodated in the said hostel to some other location -
Appellant also contended that a false allegation was made
against him that he, along with his party, had attacked and
assaulted the officials while they were conducting the raid -
Pursuant to which, an FIR was lodged against the appellant
and his wife u/s.353 IPC - Subsequently, on completion of
the investigation, charge-sheet was filed alleging commission
of offences u/ss.353 and 186 of the IPC - The appellant has
sought quashing of the said criminal proceedings:
Held: A bare perusal of s.195 (1) of the CrPC clearly indicates
that there is a bar on the court to take cognizance of any offence
punishable u/ss.172 to 188 (both inclusive) of the IPC except on a
complaint in writing made by the concerned public servant to the
court - The State has made a feeble attempt to show that there was
indeed a complaint filed by the District Probation Officer to the City
Magistrate, Varanasi, on 03.06.2015, alleging that the appellants
and his party were creating obstructions to the officials - A careful
examination of the aforesaid letter, however, would reveal that
the said letter in the form of complaint is addressed to the City
Magistrate and not to any Judicial Magistrate - A complaint within
* Author
[2025] 1 S.C.R.
13
B.N. John v. State of U.P. & Anr.
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 complaint which is required to be filed
u/s.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 instant
case, since the complaint was filed before the City Magistrate and
not before a Judicial Magistrate, the requirement of s.195 (1) of the
CrPC was not fulfilled - Under such circumstances, the appellant
has been able to make out a case that taking cognizance of the
offence u/s. 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 u/s.195(1)
of the CrPC - As far as taking cognizance of the offence u/s.353
of the IPC is concerned, in the FIR there is no allegation of use
of criminal force or assault by the appellant so as to invoke the
provision of s.353 of the IPC - The ingredients of offence u/s. 353
of the IPC are clearly absent in the FIR - Since no ingredient for the
offence u/s.353 of the IPC is found in the FIR, taking cognizance
by the CJM of an offence that is not made out in the FIR does not
appear to be correct - Nothing was mentioned in the complaint/
FIR of any specific acts apart from alleging that the appellant
and his party were creating disturbance - If "disturbance" has to
be construed as "assault" or "criminal force" without there being
specific acts attributed to make such "disturbance" as "assault"
or "criminal face" within the scope of s.353 of the IPC, it would
amount to abuse of the process of law - Also, the contents of the
statements recorded later u/s. 161 of the CrPC clearly appears
to be an afterthought and the allegation of assault/attack was
introduced later on, which is inconsistent with the contents of the
original FIR - Thus, the appellant has been able to make out the
case for quashing the criminal proceedings pending against him.
[Paras 15, 16, 17, 19, 20, 21, 25, 26, 33, 34, 42]
Code of Criminal Procedure, 1973 - s.155 - Specific bar on
police to investigate non-cognizable offence:
Held: Section 155 (2) of the CrPC provides that when information

## Text

_Characters 0–39,816 of 61,366. This is a partial read: ask again with offset=39816 for what follows._

[2025] 1 S.C.R. 12 : 2025 INSC 4
B.N. John
v.
State of U.P. & Anr.
(Criminal Appeal No. 50 of 2025)
02 January 2025
[B.V. Nagarathna and Nongmeikapam Kotiswar Singh,* JJ.]
Issue for Consideration
Appellant herein has sought quashing of criminal proceedings
arising under sections 353 and 186 of IPC.
Headnotes†
Penal Code, 1860 - s.353 and s.186 - According to the
appellant, he is the owner of a hostel used for underprivileged
children - Appellant alleges that the officials illegally conducted
the raid on 03.06.2015 and sought to transfer the children
accommodated in the said hostel to some other location -
Appellant also contended that a false allegation was made
against him that he, along with his party, had attacked and
assaulted the officials while they were conducting the raid -
Pursuant to which, an FIR was lodged against the appellant
and his wife u/s.353 IPC - Subsequently, on completion of
the investigation, charge-sheet was filed alleging commission
of offences u/ss.353 and 186 of the IPC - The appellant has
sought quashing of the said criminal proceedings:
Held: A bare perusal of s.195 (1) of the CrPC clearly indicates
that there is a bar on the court to take cognizance of any offence
punishable u/ss.172 to 188 (both inclusive) of the IPC except on a
complaint in writing made by the concerned public servant to the
court - The State has made a feeble attempt to show that there was
indeed a complaint filed by the District Probation Officer to the City
Magistrate, Varanasi, on 03.06.2015, alleging that the appellants
and his party were creating obstructions to the officials - A careful
examination of the aforesaid letter, however, would reveal that
the said letter in the form of complaint is addressed to the City
Magistrate and not to any Judicial Magistrate - A complaint within
* Author
[2025] 1 S.C.R.
13
B.N. John v. State of U.P. & Anr.
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 complaint which is required to be filed
u/s.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 instant
case, since the complaint was filed before the City Magistrate and
not before a Judicial Magistrate, the requirement of s.195 (1) of the
CrPC was not fulfilled - Under such circumstances, the appellant
has been able to make out a case that taking cognizance of the
offence u/s. 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 u/s.195(1)
of the CrPC - As far as taking cognizance of the offence u/s.353
of the IPC is concerned, in the FIR there is no allegation of use
of criminal force or assault by the appellant so as to invoke the
provision of s.353 of the IPC - The ingredients of offence u/s. 353
of the IPC are clearly absent in the FIR - Since no ingredient for the
offence u/s.353 of the IPC is found in the FIR, taking cognizance
by the CJM of an offence that is not made out in the FIR does not
appear to be correct - Nothing was mentioned in the complaint/
FIR of any specific acts apart from alleging that the appellant
and his party were creating disturbance - If "disturbance" has to
be construed as "assault" or "criminal force" without there being
specific acts attributed to make such "disturbance" as "assault"
or "criminal face" within the scope of s.353 of the IPC, it would
amount to abuse of the process of law - Also, the contents of the
statements recorded later u/s. 161 of the CrPC clearly appears
to be an afterthought and the allegation of assault/attack was
introduced later on, which is inconsistent with the contents of the
original FIR - Thus, the appellant has been able to make out the
case for quashing the criminal proceedings pending against him.
[Paras 15, 16, 17, 19, 20, 21, 25, 26, 33, 34, 42]
Code of Criminal Procedure, 1973 - s.155 - Specific bar on
police to investigate non-cognizable offence:
Held: Section 155 (2) of the CrPC provides that when information
is given to an officer in charge of a police station of the commission
within the limits of such station of a non-cognizable offence, he
shall enter or cause to be entered the substance of the information
in a book to be kept by such officer in such form as the State
14
[2025] 1 S.C.R.
Digital Supreme Court Reports
Government may prescribe in this behalf, and refer the informant
to the Magistrate - Section 155(2) of the CrPC further provides that
no police officer shall investigate a non-cognizable case without the
order of a Magistrate having power to try such a case or commit
the case for trial - Thus, there is a specific bar on the police to
investigate any such non-cognizable offence, without the order of
a Magistrate. [Para 11]
Code of Criminal Procedure, 1973 - s.155 - s.155 refers to a
Judicial Magistrate or Executive Magistrate:
Held: Since the Magistrate referred to u/s.155 under Chapter XII
of the CrPC refers to 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, u/s.195 (1)
of the CrPC r/w.s.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 u/s.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.[Para 19]
Code of Criminal Procedure, 1973 - FIR must disclose nature
of offence:
Held: A criminal process is initiated only with the lodging of
an FIR - Though FIR is not supposed to be an encyclopedia
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. [Para 25]
Case Law Cited
State of Haryana v. Ch. Bhajan Lal and Ors. [1992] Supp. 3 SCR
735 : 1992 Supp. 1 SCC 335; Gulam Abbas v. State of U.P. [1982]
1 SCR 1077 : (1982) 1 SCC 71; CBI v. Tapan Kumar Singh [2003]
3 SCR 485 : (2003) 6 SCC 175 - relied on.
State of Punjab v. Davinder Pal Singh Bhullar [2011] 15 SCR 540 :
(2011) 14 SCC 770; R P Kapoor v. State of Punjab [1960] 3 SCR
388 : AIR 1960 SC 866; State of Bihar v. PP Sharma [1991] 2
SCR 1 : 1992 SCC (Cr) 192; Zandu Pharmaceutical Works Ltd. v.
[2025] 1 S.C.R.
15
B.N. John v. State of U.P. & Anr.
Mohd. Saraful Haq and another [2004] Supp. 5 SCR 790 : 2005
SCC(Cr) 283 - referred to.
List of Acts
Juvenile Justice (Care and Protection of Children) Act, 2015; Right
to Information Act, 2005; Penal Code, 1860; Code of Criminal
Procedure, 1973; Constitution of India.
List of Keywords
Section 353 of IPC; Section 186 of IPC; Section 155 of CrPC;
Section 195 of CrPC; Cognizable offence; Non-cognizable offence;
Public servant; Assault; Criminal Force; Disturbance; Public
servant; Obstructing public servant; Judicial Magistrate; Executive
Magistrate; Nature of offence; Specific acts.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
50 of 2025
From the Judgment and Order dated 22.09.2023 of the High Court
of Judicature at Allahabad in A482 No. 35311 of 2023
Appearances for Parties
Sidharth Luthra, Sr. Adv., Anmol Kheta, Mrs. Tanya Srivastava,
Ms. Anshala Verma, Monu Kumar, Suraj Mishra, Ayush Anand,
K.S. Jaggi, Advs. for the Petitioner.
Ajay Kumar Mishra, AG/Sr. Adv., Garvesh Kabra, Ajay Singh,
Avanish Deshpande, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Nongmeikapam Kotiswar Singh, J.
Leave granted.
2.
The present appeal has been preferred being aggrieved by the
judgment dated 22.09.2023 passed by the High Court of Judicature at
Allahabad under Section 482 of the Code of Criminal Procedure, 1973
16
[2025] 1 S.C.R.
Digital Supreme Court Reports
('CrPC' for short) in Application No. 35311 of 2023 by which the
appellant's plea for quashing of the chargesheet No.162 of 2015
dated 20.06.2015, order dated 11.08.2015 taking cognizance
and issuing summons, and the entire proceedings in Case No.
9790 of 2015 arising out of Case Crime No. 290 of 2015 under
Sections 353 and 186 of the Indian Penal Code, 1860 ('IPC' for short),
P.S. Cantt. District Varanasi, U.P., was rejected.
FACTUAL BACKGROUND
3.
It is the plea of the appellant that he is the owner of the premises
and was in charge of managing & maintaining the hostel, which
was being operated by a Non-Governmental Organization, named
Sampoorna Development India. This hostel at the relevant time
was used for underprivileged children by providing facilities for their
accommodation, education and other needs.
3.1 According to the appellant, because of certain personal disputes
with one K.V. Abraham, the latter instituted six false cases
against him, four of them resulted in his acquittal, while in the
other two discharge applications are pending. According to the
appellant, it was at the instance of the said Abraham that the
officials conducted a raid in the said 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' for short) as applicable then, were
not followed in running and managing the said hostel.
3.2 It is the allegation of the appellant that the officials illegally
conducted the raid on 03.06.2015 and sought to transfer
the children accommodated in the said hostel to some other
location purportedly on the ground that the hostel was being
run without proper authorization from the competent authority
under the JJ Act.
3.3. It was further contended that a false allegation was made
against the appellant that he, along with his party, had attacked
and assaulted the officials while they were conducting the raid
in connection with which an FIR came to be lodged against
the appellant and his wife, which was registered as FIR No.
290 of 2015 dated 03.06.2015 at the PS Cantt. District, Varanasi
under Section 353 of the IPC.
[2025] 1 S.C.R.
17
B.N. John v. State of U.P. & Anr.
3.4. On the basis of the said FIR, the appellant was arrested on
08.06.2015. However, he was granted bail on the same day.
Subsequently, on completion of the investigation, charge-sheet
was filed before the Court of Chief Judicial Magistrate, Varanasi
in connection with the said FIR on 20.06.2015 alleging
commission of offences under Sections 353 and 186 of the IPC.
3.5. Pursuant to the filing of the chargesheet, the Chief Judicial
Magistrate, Varanasi took cognizance and issued summons to
the appellant vide order dated 11.08.2015, against which the
appellant submitted an application for recalling the said order,
which is pending before the Court of CJM, Varanasi.
3.6. According to the appellant, a complaint alleging commission of
an offence under Section 186 of the IPC would be maintainable
only ifit is preceded by a complaint filed by a public servant
as mentioned under Section 195 (1)(a) of the CrPC before the
court/Magistrate, but there was no such prior complaint filed
by any public servant before the Magistrate.
Further, though the FIR was filed under Section 353 of the IPC,
there were no ingredients to make out a case under the said
section. It is also the case of the appellant that the authorities
had maliciously invoked the penal provision of Section 353 of the
IPC in the FIR merely to make out a cognizable offence against
the appellant to enable the Magistrate to take cognizance, 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. Hence, taking cognizance of the said FIR by the CJM,
Varanasi under Section 353 of the IPC was unwarranted and
illegal.
3.7 Accordingly, the appellant approached the Allahabad High Court
invoking jurisdiction under Section 482 of the CrPC seeking
quashing of the aforesaid proceedings, that is, Crime Case
No. 290 of 2015 pending before the CJM, Varanasi and orders
taking cognizance and issuing summons in that regard.
3.8 The Allahabad High Court on perusal of the FIR No.290/15 and
the statement of witnesses recorded under Section 161 of the
CrPC held that a prima facie case has been made out against
the appellant for being summoned and for prosecution under
18
[2025] 1 S.C.R.
Digital Supreme Court Reports
the aforesaid Sections 353 and 186 of the IPC and declined
his plea for quashing the aforesaid criminal case which was
pending before the CJM, Varanasi.
3.9 While dismissing the petition filed by the appellant, the Allahabad
High Court referred to an earlier decision of the High Court
in rejecting the application filed by the co-accused seeking
quashing of the aforesaid proceedings under Section 482 of
the CrPC which was affirmed by this Court on 13.04.2017 by
dismissing the SLP in limine.
In the present impugned order, the High Court observed that
the allegations against the present appellant and co-accused
are same as well as the evidence collected against them and
since the plea of quashing the charge sheet and cognizance
taken against the said co-accused had already been rejected on
merits by the High Court, which was not disturbed by this Court,
no interference was warranted for quashing the proceedings
under Section 482 of the CrPC, filed by the present appellant and
dismissed the petition. Accordingly, the appellant is before us.
SUBMISSION OF THE APPELLANT
4.
It is the specific plea of the appellant that cognizance in respect of
an offence under Section 186 of the IPC can be taken by the court
only after a complaint is made in writing by the public servant to
the court as provided under Section 195 (1) of the Cr.P.C. It has
been submitted that in the present case no such written complaint
was filed by any public official as also ascertained by him from the
concerned authority through an application filed to the competent
authority under the Right to Information Act, 2005, whereby he was
informed that no written complaint was filed before the court by any
public servant in connection with Case No. 9790 of 2015 (State Vs
B.N. John and Anr.).
4.1 Further, for invoking the provision of Section 353 of the IPC
there must be a clear allegation of assault or criminal force by
the accused for preventing the public servant from discharging
his duty. However, a careful reading of the FIR would indicate
that no such allegation was made against the appellant of
using criminal force or assault and accordingly, even if the
allegations made in the FIR are taken at their face value, it
[2025] 1 S.C.R.
19
B.N. John v. State of U.P. & Anr.
does not disclose the commission of any cognizable offence
as contemplated under Section 353 of the IPC.
4.2 Accordingly, it has been submitted that taking cognizance by the
CJM, Varanasi, of the aforesaid case under the stated facts and
circumstances is quite illegal and perverse in law, as such, the
same ought to have been quashed by the Allahabad High Court.
It was contended that the Allahabad High Court, however, had
misdirected itself by observing that a prima facie case is made
out on the basis of the contents of the FIR and the statement
of the witnesses recorded under Section 161 CrPC.
4.3 It has also been contended that the Allahabad High Court in
the present case ought not to have taken into consideration the
order passed in respect of the other co-accused, as the legal
issues as highlighted in this appeal, were not considered by the
Allahabad High Court while rejecting the plea of the co-accused
for quashing the complaint. As such, the said decision cannot
be used against the present appellant.
PLEA OF THE RESPONDENT
5.
Per contra, it has been submitted on behalf of the State that the
decision rendered by the Allahabad High Court is in consonance
with the law and no grievance can be made as the High Court had
applied the relevant law to the facts of the present case.
Further, it has also been submitted that this Court must be very slow
in interfering with a reasoned order passed by the High Court, and
the impugned order cannot be said to be perverse, illegal, or without
any jurisdiction. It was contended that merely because a different
view could have been taken by the High Court, it does not render
the decision of the High Court illegal, warranting interference from
this Court, and the High Court passed the order after going through
the records.
ANALYSIS
6.
We have heard learned counsel for the parties and perused the
record.
7.
As far as quashing of criminal cases is concerned, it is now more
or less well settled as regards to the principles to be applied by the
20
[2025] 1 S.C.R.
Digital Supreme Court Reports
court. In this regard, one may refer to the decision of this Court in
State of Haryana Vs. Ch. Bhajan Lal and Ors., 1992 Supp. (1)
SCC 335 wherein this Court has summarized some of the principles
under which FIR/complaints/criminal cases could be quashed in the
following words:
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at
their face value and accepted in their entirety do
not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR
do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
[2025] 1 S.C.R.
21
B.N. John v. State of U.P. & Anr.
without an order of a Magistrate as contemplated
under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach
a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/
or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."
(emphasis added)
8.
Of the aforesaid criteria, clauses no. (1), (4) and (6) would be of
relevance to us in this case.
In clause (1) it has been mentioned that where the allegations made
in the first information report or the complaint, even if they are taken
at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused, then
the FIR or the complaint can be quashed.
As per clause (4), where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-cognizable offence, no
investigation is permitted by police officer without an order dated by
the Magistrate as contemplated under Section 155 (2) of the CrPC,
and in such a situation, the FIR can be quashed.
Similarly, as provided under clause (6), if there is an express legal bar
engrafted in any of the provisions of the CrPC or the concerned Act
under which the criminal proceedings is instituted, such proceeding
can be quashed.
22
[2025] 1 S.C.R.
Digital Supreme Court Reports
9.
Our criminal justice system, rooted in the rule of law, contemplates
different approaches for dealing with serious and non-serious offences.
When complaints pertaining to serious offences are filed, which are
generally categorized as cognizable offences under the CrPC, the
police, on receiving such information of the commission of a cognizable
offence can immediately start the investigation as contemplated
under Section 156 of the CrPC. On the other hand, when it relates to
non-serious offences which are generally categorized as noncognizable offences, the law is more circumspect in letting the full
force of the criminal justice system operate. When it is related to
non-cognizable 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, as enabled under Section 156 of
the CrPC. In such a situation any complaint alleging commission of
non-serious offence(s) or non-cognizable offence(s) made before the
police, has to be vetted by a legally trained person in the presence of
a Judicial Magistrate before the police can initiate the investigation.
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
non- cognizable 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. This is to ensure that only genuine
complaints relating to non-serious offences or non-cognizable 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.
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.
10. Keeping the aforesaid principles and aspects in mind, we shall proceed
to examine the issues and contentions of the parties before us.
11. Chapter XII of the CrPC deals with information given to the police
and their powers to investigate.
[2025] 1 S.C.R.
23
B.N. John v. State of U.P. & Anr.
Section 155 (2) of the CrPC provides that when information is given
to an officer in charge of a police station of the commission within
the limits of such station of a non-cognizable offence, he shall enter
or cause to be entered the substance of the information in a book to
be kept by such officer in such form as the State Government may
prescribe in this behalf, and refer the informant to the Magistrate.
Section 155(2) of the CrPC further provides that no police officer shall
investigate a non-cognizable case without the order of a Magistrate
having power to try such a case or commit the case for trial.
Relevant portions of Section 155 of the CrPC reads as under:
"155. Information as to non-cognizable cases and
investigation of such cases.-
(1) When information is given to an officer in charge of
a police station of the commission within the limits of
such station of a non-cognizable offence, he shall enter
or cause to be entered the substance of the information
in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf, and refer
the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable
case without the order of a Magistrate having power to
try such case or commit the case for trial.
...........................................................................................
............................................................................................"
Thus, there is a specific bar on the police to investigate any such
non-cognizable offence, without the order of a Magistrate.
12. However, no such bar has been placed when it relates to a cognizable
offence as provided under Sections 154 and 156 of the CrPC, under
which, any officer in charge of a police station may, without the order
of a Magistrate, investigate any cognizable case that a court having
jurisdiction over the local area within the limits of such station would
have power to inquire into or try under the provisions of Chapter XII,
as reproduced herein below:
"154. Information in cognizable cases.-(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
24
[2025] 1 S.C.R.
Digital Supreme Court Reports
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it,
and the substance thereof shall be entered in a book to be
kept by such officer in such form as the State Government
may prescribe in this behalf:
Provided that if ................................................................."
"156. Police officer's power to investigate cognizable
case.-(1) Any officer in charge of a police station
may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the
local area within the limits of such station would have power
to inquire into or try under the provisions of Chapter XIII.
(2) ........................................................................................
............................................................................................"
13. While Section 155 of the CrPC deals with all non-cognizable offences,
where the police cannot investigate without a prior order of the
Magistrate, Section 195 of the CrPC provides additional conditions
under which the Magistrates can take cognizance in respect of certain
kinds of non-cognizable offences as mentioned in the said section,
which includes Section 186 of the IPC with which we are directly
concerned, only after a written complaint is filed by the concerned
public servant to the court/Magistrate.
Relevant portions of Section 195 of the CrPC read as follows:
"195. Prosecution for contempt of lawful authority of
public servants, for offences against public justice and
for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections
172 to 188 (both inclusive) of the Indian Penal
Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit,
such offence, or
(iii) of any criminal conspiracy to commit such
offence,
[2025] 1 S.C.R.
25
B.N. John v. State of U.P. & Anr.
except on the complaint in writing of the public servant
concerned or of some other public servant to whom
he is administratively subordinate;
.................................................................................
................................................................................."
14. Since, the appellant has been charged for committing offences
under Sections 186 and 353 of the IPC, it may be appropriate to
reproduce the same.
Section 186 of the IPC reads as follows:
"186. Obstructing public servant in discharge of public
functions.-Whoever voluntarily obstructs any public
servant in the discharge of his public functions, shall be
punished with imprisonment of either description for a term
which may extend to three months, or with fine which may
extend to five hundred rupees, or with both.
Section 353 of the IPC reads as follows:
"353. Assault or criminal force to deter public servant
from discharge of his duty.-Whoever assaults or uses
criminal force to any person being a public servant in
the execution of his duty as such public servant, or with
intent to prevent or deter that person from discharging
his duty as such public servant, or in consequence of
anything done or attempted to be done by such person
to the lawful discharge of his duty as such public servant,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine,
or with both."
15. A bare perusal of Section 195 (1) of the CrPC clearly indicates
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. Therefore, if it is found as contended by the appellant
that in respect of the offence under Section 186 of theIPC 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.
26
[2025] 1 S.C.R.
Digital Supreme Court Reports
In this regard, the appellant has specifically pleaded to which there
is no rebuttal from the State that no such complaint was made in
writing by a public servant as required under Section 195(1) of the
CrPC relating to the commission of offence by the appellant under
Section 186 of the IPC.
16. The State has, however, made a feeble attempt to show that there
was indeed a complaint filed by the District Probation Officer to the
City Magistrate, Varanasi, on 03.06.2015, alleging that the appellants
and his party were creating obstructions to the officials in the process
of sending the minor children residing in the institution run illegally
by Sampoorn Development India to other approved institutions and
requested the City Magistrate to take cognizance of the same and
take legal action.
The aforesaid complaint reads as follows:
"To,
City magistrate
Varanasi
Sir,
By your order dated June 3, 2015, letter no. 1346,
Mr B.N. John, Ms Susan John and their people are creating
obstruction in the process of sending the minor children
residing in the non-legal institution run by the Sampoorna
Development Trust to other Institutions legally. Please take
cognizance of this and take further legal action.
Sincerely
Prabhat Ranjan
03/06/2013
District Probation Officer.
Station Head Cantt/CO Cantt.
S/O is creating obstruction in important work necessary
action."
17. A careful examination of the aforesaid letter, however, would reveal
the following crucial aspect.
[2025] 1 S.C.R.
27
B.N. John v. State of U.P. & Anr.
The said letter in the form of complaint is addressed to the City
Magistrate and not to any Judicial Magistrate. As to what is a
complaint is defined under Section 2 (d) of the CrPC which reads
as follows:
"2. Definitions.-In this Code, unless the context otherwise
requires,
(a) .................................
(b) .................................
(c) ......................... ........
(d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
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.
18. As regards the difference between a Judicial Magistrate and an
Executive Magistrate, it has been clarified by this Court in Gulam
Abbas v. State of U.P. (1982) 1 SCC 71 as follows:
"24. Turning to the 1973 Code itself the scheme of
separating Judicial Magistrates from Executive Magistrates
with allocation of judicial functions to the former and the
executive or administrative functions to the latter, as we
shall presently indicate, has been implemented in the
Code to a great extent. Section 6 provides that there
shall be in every State four classes of criminal courts,
namely, (i) Courts of Session, (ii) Judicial Magistrates of
the First class and, in any metropolitan area, Metropolitan
Magistrates;(iii) Judicial Magistrates of the Second
Class; and (iv) Executive Magistrates; Sections 8 to 19
provide inter alia for declaration of metropolitan area,
establishment of Courts of Session, Courts of Judicial
Magistrates, Courts of Metropolitan Magistrates and
appointments of Sessions Judges, Additional Sessions
Judges, Assistant Sessions Judges, Chief Judicial
28
[2025] 1 S.C.R.
Digital Supreme Court Reports
Magistrates, Judicial Magistrates, Chief Metropolitan
Magistrates and Metropolitan Magistrates together with
inter se subordination, but all appointments being required
to be made by the High Court, while Sections 20, 21, 22
and 23 deal with appointments of District Magistrates,
Additional District Magistrates, Executive Magistrates, SubDivisional Magistrates and Special Executive Magistrates
and their respective jurisdictions in every district and
metropolitan area together with inter se subordination,
but appointments being made by the State Government.
Chapter III comprising Sections 26 to 35 clearly shows that
Executive Magistrates are totally excluded from conferment
of powers to punish, which are conferred on Judicial
Magistrates; this shows that if any one were to commit a
breach of any order passed by an Executive Magistrate
in exercise of his administrative or executive function he
will have to be challenged or prosecuted before a Judicial
Magistrate to receive punishment on conviction. Further,
if certain sections of the present Code are compared with
the equivalent sections in the old Code it will appear clear
that a separation between judicial functions and executive
or administrative functions has been achieved by assigning
substantially the former to the Judicial Magistrates and the
latter to the Executive Magistrates. For example, the power
under Section 106 to release a person on conviction of
certain types of offences by obtaining from him security
by way of execution of bond for keeping peace and good
behaviour for a period not exceeding three years - a
judicial function is now exclusively entrusted to a Judicial
Magistrate whereas under Section 106 of the old Code
such power could be exercised by a Presidency Magistrate,
a District Magistrate or Sub-Divisional Magistrate; but the
power to direct the execution of a similar bond by way
of security for keeping peace in other cases where such
a person is likely to commit breach of peace or disturb
the public tranquillity - an executive function of police
to maintain law and order and public peace which was
conferred on a Presidency Magistrate, District Magistrate,
etc. under the old Section 107 is now assigned exclusively
to the Executive Magistrate under the present Section
[2025] 1 S.C.R.
29
B.N. John v. State of U.P. & Anr.
107; Chapter X of the new Code deals with the topic of
maintenance of public order and tranquillity and in that
Chapter Sections 129 to 132 deal with unlawful assemblies
and dispersal thereof, Sections 133 to 143 deal with public
nuisance and abatement or removal thereof, Section 144
deals with urgent cases of nuisance and apprehended
danger to public tranquillity and Sections 145 to 148 deal
with disputes as to immovable properties likely to cause
breach of peace - all being in the nature of executive
("police") functions, powers in that behalf have been
vested exclusively in Executive Magistrates whereas under
equivalent provisions under the old Code such powers
were conferred indiscriminately on any Magistrate, whether
Judicial or Executive. In particular it may be stated that
whereas under the old Section 144 the power to take
action in urgent cases of nuisance or apprehended danger
to public tranquillity had been conferred on "a District
Magistrate, a Chief Presidency Magistrate, a Sub-Divisional
Magistrate or any other Magistrate, specially empowered by
the State Government", under the present Section 144 the
power has been conferred on "a District Magistrate, a SubDivisional Magistrate or any other Executive Magistrate
specially empowered by the State Government in that
behalf". Having regard to such implementation of the
concept of separation of judicial functions from executive
or administrative functions and allocation of the former to
the Judicial Magistrates and the latter to the Executive
Magistrates under the Code of 1973, it will be difficult to
accept the contention of the counsel for Respondents 5
and 6 that the order passed by a District Magistrate, SubDivisional Magistrate or any other Executive Magistrate
under the present Section 144 is a judicial or quasijudicial order, the function thereunder being essentially
an executive (police) function. ..............................."
19. Since the Magistrate referred to under Section 155 under Chapter
XII of the CrPC refers to 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, 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
30
[2025] 1 S.C.R.
Digital Supreme Court Reports
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.
20. In the present case, since the complaint was filed before the City
Magistrate and not before a Judicial Magistrate, the requirement of
Section 195 (1) of the CrPC was not fulfilled.
21. 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.
22. This leads us to the next consideration as to whether taking
cognizance of the offence under Section 353 of the IPC by the CJM,
Varanasi, was in order or not.
23. For a prohibited act to come within the scope of the offence under
Section 353 of the IPC, such an act must qualify either as an assault
or criminal force meant to deter public servant from discharge of his
duty. Obviously, such an act cannot be a mere act of obstruction which
is an offence under Section 186 of the IPC. The offence contemplated
under Section 353 of the IPC is of a more serious nature involving
criminal force, or assault which attracts more stringent punishment
that may extend to two years.