# Devendra Kumar v. The State (NCT of Delhi) & Anr

- **Citation:** 2025 INSC 1009
- **Court:** Supreme Court of India
- **Decided:** 2025-08-20
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/devendra-kumar-v-the-state-nct-of-delhi-anr-38592
- **Pages:** 42

## Headnote

High Court affirmed the order passed by the CMM directing
registration of the FIR against the petitioner for offences punishable
u/ss.186 and 341, Penal Code, 1860. Whether the CMM erred
in involving the police in a complaint lodged by a Civil Judge for
the offence punishable u/ss.186 and 341 of the I.P.C; whether
the CMM erred in asking the police to investigate the complaint
u/s.156(3) of the Cr.P.C instead of taking cognizance upon
the complaint and issuing process to the petitioner; scope of
s.195, CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - s.195 - Scope - Penal Code,
1860 - ss.186, 341 - Petitioner-SHO allegedly misbehaved
with/detained the Respondent no.2-Process Server when he
visited the police station and insisted for receipt of summons -
Respondent no.2 brought alleged misconduct on part of the
petitioner to the notice of the District & Sessions Judge in the
form of voluntary obstruction said to have been caused in the
discharge of his public functions, who in turn assigned the
complaint to the Administrative Civil Judge who then lodged
a private complaint in the court of the CMM - However, the
CMM instead of taking cognizance upon the said complaint
and issuing process to the petitioner, directed registration of
FIR u/ss.186, 341, IPC - Order challenged by the petitioner
before Sessions Judge, rejected - High Court affirmed the
order passed by the CMM - Challenge to:
Held: 1.1 The word 'obstruction' in s.186 of the I.P.C is not confined
to physical obstruction only - Threats of violence made in such
a way as to prevent the public servant from carrying out his duty
might easily amount to an obstruction of the public servant - The
* Author
1096
[2025] 8 S.C.R.
Supreme Court Reports
expression 'obstruction' used in s.186 of the I.P.C. is not confined
to physical obstruction - It need not necessarily be an act of use
of criminal force - The act need not be a violent one - It is enough
if the act complained of results in preventing a public servant in
discharge of his lawful duties - Any act of causing impediment by
unlawfully preventing public servant in discharge of his functions
would be enough to attract s.186 of the I.P.C. [Paras 24, 29]
1.2 Petitioner's acts prima facie, amount to obstructing the public
servant in the discharge of their public function - Therefore, the
complaint itself, does not suffer from any legal infirmity - However,
the CMM should have straightaway taken cognizance upon the
complaint and issued process to the petitioner - Asking the police
to investigate the complaint u/s.156(3) of the Cr.P.C. was a very
serious error committed by the CMM - There was no need to
involve the police in a complaint lodged by a Civil Judge for the
offence punishable u/ss.186 and 341 of the I.P.C. [Paras 30, 12]
1.3 s.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 - s.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 u/s.186 of the I.P.C. is closely interconnected with another
distinct offence(s), which in this case is s.341 of the I.P.C. and it
cannot be split up, then in such circumstances, the bar of s.195 of
the Cr.P.C. will apply to such other distinct offence also. [Para 36]
1.4 s.195(1)(a)(i), Cr.P.C. bars the court from taking cognizance of
any offence punishable u/ss.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.

## Text

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[2025] 8 S.C.R. 1095 : 2025 INSC 1009
Devendra Kumar
v.
The State (NCT of Delhi) & Anr.
(Special Leave Petition (Criminal) No. 12373 of 2025)
20 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]
Issue for Consideration
High Court affirmed the order passed by the CMM directing
registration of the FIR against the petitioner for offences punishable
u/ss.186 and 341, Penal Code, 1860. Whether the CMM erred
in involving the police in a complaint lodged by a Civil Judge for
the offence punishable u/ss.186 and 341 of the I.P.C; whether
the CMM erred in asking the police to investigate the complaint
u/s.156(3) of the Cr.P.C instead of taking cognizance upon
the complaint and issuing process to the petitioner; scope of
s.195, CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - s.195 - Scope - Penal Code,
1860 - ss.186, 341 - Petitioner-SHO allegedly misbehaved
with/detained the Respondent no.2-Process Server when he
visited the police station and insisted for receipt of summons -
Respondent no.2 brought alleged misconduct on part of the
petitioner to the notice of the District & Sessions Judge in the
form of voluntary obstruction said to have been caused in the
discharge of his public functions, who in turn assigned the
complaint to the Administrative Civil Judge who then lodged
a private complaint in the court of the CMM - However, the
CMM instead of taking cognizance upon the said complaint
and issuing process to the petitioner, directed registration of
FIR u/ss.186, 341, IPC - Order challenged by the petitioner
before Sessions Judge, rejected - High Court affirmed the
order passed by the CMM - Challenge to:
Held: 1.1 The word 'obstruction' in s.186 of the I.P.C is not confined
to physical obstruction only - Threats of violence made in such
a way as to prevent the public servant from carrying out his duty
might easily amount to an obstruction of the public servant - The
* Author
1096
[2025] 8 S.C.R.
Supreme Court Reports
expression 'obstruction' used in s.186 of the I.P.C. is not confined
to physical obstruction - It need not necessarily be an act of use
of criminal force - The act need not be a violent one - It is enough
if the act complained of results in preventing a public servant in
discharge of his lawful duties - Any act of causing impediment by
unlawfully preventing public servant in discharge of his functions
would be enough to attract s.186 of the I.P.C. [Paras 24, 29]
1.2 Petitioner's acts prima facie, amount to obstructing the public
servant in the discharge of their public function - Therefore, the
complaint itself, does not suffer from any legal infirmity - However,
the CMM should have straightaway taken cognizance upon the
complaint and issued process to the petitioner - Asking the police
to investigate the complaint u/s.156(3) of the Cr.P.C. was a very
serious error committed by the CMM - There was no need to
involve the police in a complaint lodged by a Civil Judge for the
offence punishable u/ss.186 and 341 of the I.P.C. [Paras 30, 12]
1.3 s.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 - s.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 u/s.186 of the I.P.C. is closely interconnected with another
distinct offence(s), which in this case is s.341 of the I.P.C. and it
cannot be split up, then in such circumstances, the bar of s.195 of
the Cr.P.C. will apply to such other distinct offence also. [Para 36]
1.4 s.195(1)(a)(i), Cr.P.C. bars the court from taking cognizance of
any offence punishable u/ss.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. [Para 59]
1.5 If in truth and substance, an offence falls in the category of
s.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
[2025] 8 S.C.R.
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Devendra Kumar v.
The State (NCT of Delhi) & Anr.
of splitting up - It would depend upon the facts of each case, the
nature of allegations and the materials on record. [Para 59]
1.6 Severance of distinct offences is not permissible when it would
effectively circumvent the protection afforded by s.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 s.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. [Para 59]
1.7 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 s.195(1)(a)(i)
have been invoked only with a view to evade the mandatory bar
of s.195 of the Cr.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. [Para 59]
1.8 Where an accused is alleged to have committed some offences
which are separate and distinct from those contained in s.195,
s.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 s.195 of the
Cr.P.C - This would all depend on the facts of each case. [Para 59]
1.9 ss.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 s.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 s.340 of the Cr.P.C. is followed. [Para 59]
1.10 It is left open to the petitioner to raise the contention as
regards the bar of s.195 of the Cr.P.C. before the trial court if at
all, at the end of the investigation, chargesheet is filed for the
offences enumerated in the FIR. [Para 60]
1098
[2025] 8 S.C.R.
Supreme Court Reports
Code of Criminal Procedure, 1973 - s. 195(1)(a)(i) - Bar under -
Object and intent behind, stated. [Para 43]
Word and Phrases - 'obstruction' - Penal Code, 1860 - s.186
vis-à-vis Customs Act, 1962 - s.133 - "whoever voluntarily
obstructs any public servant in the discharge of his
public functions" used in s.186; expression "if any person
intentionally obstructs any officer of customs" used in s.133
of the Customs Act, 1962:
Held: The expression 'intentionally' used in s.133 of the Customs
Act and the expression 'voluntarily' used in s.186 of I.P.C. connote
the same meaning - The expression 'obstruction' used in s.186
of the I.P.C. is not confined to physical obstruction - It need not
necessarily be an act of use of criminal force - The act need not
be a violent one - It is enough if the act complained of results in
preventing a public servant in discharge of his lawful duties - Any
act of causing impediment by unlawfully preventing public servant
in discharge of his functions would be enough to attract s.186 of
the I.P.C. [Para 29]
Case Law Cited
Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. [2005] 2
SCR 708 : AIR 2005 SC 2119 - followed.
Umashankar Yadav and Another v. State of U.P., 2025 SCC OnLine
SC 1066; Santosh Kumar Jain v. The State [1951] 1 SCR 303 :
(1951) 1 SCC 190; Collector of Customs and Central Excise v.
Paradip Port Trust [1990] 3 SCR 705 : (1990) 4 SCC 250; State of
U.P. v. Suresh Chandra Srivastava & Ors. [1984] 3 SCR 738 : AIR
1984 SC 1108; State of Karnataka v. Hemareddy & Anr. [1981] 2
SCR 695 : AIR 1981 SC 1417; Basir-ul-huq and Others v. State of
West Bengal [1953] 1 SCR 836 : (1953) 1 SCC 637; Durgacharan
Naik and Others v. State of Orissa [1966] 3 SCR 636 : AIR 1966
SC 1775; Govind Mehta v. The State of Bihar [1971] Supp. 1
SCR 777 : AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The
State of Gujarat [1971] Supp. 1 SCR 834 : AIR 1971 SC 1935;
Surjit Singh & Ors v. Balbir Singh [1996] 3 SCR 70 : (1996) 3
SCC 533; State of Punjab v. Raj Singh & Anr. [1998] 1 SCR 223
: (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy &
Ors. (2005) 7 SCC 352; M.S. Ahlawat v. State of Haryana & Anr.
[1999] Supp. 4 SCR 160 : AIR 2000 SC 168; Sachida Nand Singh
& Anr. v. State of Bihar & Anr. [1998] 1 SCR 492 : (1998) 2 SCC
[2025] 8 S.C.R.
1099
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
493; Daulat Ram v. State of Punjab [1962] Supp. 1 SCR 812 :
AIR 1962 SC 1206; State of Punjab v. Raj Singh [1998] 1 SCR
223 : AIR 1998 SC 768; M. Narayandas v. State of Karnataka
[2003] Supp. 3 SCR 973 : AIR 2004 SC 555; Saloni Arora v.
State of NCT of Delhi [2017] 1 SCR 397 : Criminal Appeal No.
64 of 2017 - referred to.
Nishi Kanta Pal v. Emperor, AIR 1917 Calcutta 180; State v. Babulal
Gaurishanker Misar, AIR 1957 Bombay 10; Sykes v. Director of
Public Prosecutions, 1962 A.C. 528; Phudki v. State, AIR 1955
All. 104; Janki Prasad Tibrewal v. The State of Bihar, 1975 Crl.
L.J. 575 (Patna); Diljam Sahu v. Emperor, AIR 1937 Patna 633;
Emperor v. Sideman Abba AIR 1935 Bom. 24 - referred to.
Jaswant Singh v. King Emperor, AIR 1925 Lahore 139 - referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973; Customs
Act, 1962.
List of Keywords
Section 195 of Code of Criminal Procedure, 1973; Obstruction;
Obstruction in the discharge of public functions; Obstructing the
public servant in the discharge of their public function; Obstruction
of the public servant; Voluntarily obstructing the public servant from
discharge of his public functions; Voluntary obstruction caused in
the discharge of public functions; Section 186, Penal Code, 1860;
Private complaint; Written complaint by the public servant; Distinct
offences; Severance of distinct offences; Physical obstruction; Use
of criminal force; Unlawfully preventing public servant in discharge of
his functions; Process Server; Duty to serve warrants; Misbehaved;
Detained; Made to stand raising hands; Misconduct; Public servant;
Public function; Order of police investigation; Complaint; Threats of
violence; Written complaint; Preventing a public servant in discharge
of his lawful duties; Contempt of lawful authority.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Special Leave Petition
(Criminal) No. 12373 of 2025
From the Judgment and Order dated 12.09.2024 of the High Court
of Delhi at New Delhi in WPCRL No. 2047 of 2013
1100
[2025] 8 S.C.R.
Supreme Court Reports
Appearances for Parties
Advs. for the Petitioner:
Nikilesh Ramachandran, SC Sagar, Shubham Seth, Ms. Ananya
V Mehra, Ms. Soumya Saisa Das.
Judgment / Order of the Supreme Court
Judgment
J.B. Pardiwala, J.
For the convenience of exposition, this judgment is divided in the
following parts: -
INDEX*
A.
BRIEF FACTUAL MATRIX .............................................................
2
B.
IMPUGNED ORDER .......................................................................
8
C.
SUBMISSIONS ON BEHALF OF THE PETITIONER ................... 10
D.
ANALYSIS ......................................................................................
11
i.
Section 186 of the I.P.C. .......................................................... 15
ii.
Section 195 of the Cr.P.C. ........................................................ 23
E.
CONCLUSION ................................................................................ 47
1.
This petition arises from the judgment and order passed by the High
Court of Delhi dated 12th September 2024 in Writ Petition (Criminal)
No. 2047 of 2013 and connected Criminal Miscellaneous Application
No. 18861 of 2013 by which the writ petition along with the connected
application came to be rejected, thereby affirming the order dated
28.11.2018 passed by the Chief Metropolitan Magistrate directing
registration of the FIR against the petitioner-herein for the offence
punishable under Sections 186 and 341 respectively of the Indian
Penal Code, 1860 (for short, "I.P.C").
* Ed. Note: Pagination as per the original Judgment.
[2025] 8 S.C.R.
1101
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
A.
BRIEF FACTUAL MATRIX
2.
It appears from the materials on record that the respondent no. 2
herein at the relevant point of time was serving as a Process Server,
Nazarat Branch, Shahdara. He was assigned the duty to serve
warrants and, in this connection, he had to visit the Nand Giri police
station on 03.10.2013. It is the case of the respondent no. 2 that few
police officials, more particularly, the petitioner-herein misbehaved
with him when he insisted for a receipt of the summons. According to
him, he was detained in the police station till 4:30 PM. It is only after
the arrival of the Head Constable that the warrants were accepted.
3.
The respondent no. 2 brought the alleged misconduct on part of the
petitioner to the notice of the District and Sessions Judge of Shahdara
in the form of voluntary obstruction said to have been caused in the
discharge of his public functions. The District and Sessions Judge
assigned the complaint to the Administrative Civil Judge who in turn
lodged a private complaint in the court of the Chief Metropolitan
Magistrate, Karkardooma Courts, Delhi.
4.
The Chief Metropolitan Magistrate vide order dated 28.11.2013
directed the registration of FIR under Sections 186 and 341
respectively of the I.P.C. The order passed by CMM, Shahdara,
Delhi dated 28.11.2013 reads thus:
"The present complaint case was filed u/s. 195 Cr.P.C. by
Ld. ACJ, Shahdara.
Allegations of Shri Ravi Dutt Sharma (Process Server)
are that one warrant issued by the court of Shri Sharad
Gupta, Ld. MM and one summon issued by the court of
Shri Arvind Kumar, Ld. AD) were assigned to him to be
served to SHO PS Nand Nagri. On 3.10.2013 he reached
PS Nand Nagri at about 12.30 P.M. One Ct Sanjay Kumar
Sharma was present in the room of 5-8. The said constable
received the processes but signed as HC Brahmjeet.
Process Server Ravi Dutt asked him not to do so. Upon
this Ct. Sanjay cut the signatures made by him in the name
of HC Brahmjeet and took the processes to the Reader
of SHO who also refused to receive the processes. The
process server went to duty officer who also refused to
take the processes.
1102
[2025] 8 S.C.R.
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The process server went to SHO Insp. Devender Kumar
and told him all the facts. The said SHO kept the processes
and abused the process server badly. SHO asked process
server to stand there raising his hands and wait till the
Havaldar/Head Constable comes. For about half an
hour process server stood there, raising his hands as a
punishment. He was also made to sit on the floor for about
3-4 hours as punishment. The process server begged SHO
to allow him to go as he had to serve other processes
also and told him that, he would come after serving other
processes. The SHO, however, did not allow the process
server to go. At about 4.30 p.m. one head constable come
who took the processes and gave receipt.
From these allegations offence U/s. 106, 341 and 342 IPC
are clearly made out. The conduct of the SHD PS Nand
Nagri cannot be tolerated. This case carrot be taken lightly.
Hence, U/s. 156(3) Cr.P.C., it is ordered that FIR be
registered against SHO P.S. Nangi for the above said
offence. The FIR be registered at PS Nand Negri itself as
the offence took place within the premises of PS Nand Nagri
itself. Investigation be conducted by Officer of the rank of
ACP and under direct supervision of Addl. CP concerned.
Copy of this order be sent to CCP and Addl. CP concerned
for immediate compliance. Put up for status report on
14.12.2023."
(Emphasis supplied)
5.
The aforesaid order came to be challenged by the petitioner-herein
in the court of the Sessions Judge, Karkardooma Courts, Delhi by
filing Criminal Revision Application No. 174 of 2013. The revision
application came to be rejected vide order dated 03.12.2013. The
order reads thus:
"10. A perusal of the record reveals that the Process
Server Mr. Ravi Dutt Sharma posted at Nazarat Branch,
Karkardooma Court, Delhi has submitted his complaint
dated 10/10/13, to Ld. District & Sessions Judge, Shahdara,
Delhi. Ld. District & Sessions Judge, Shahdara had
[2025] 8 S.C.R.
1103
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
made an endorsement dated 14/10/13 assigning the said
complaint to Ld. Administrative Civil Judge, Shahdara to
deal with the matter. Shri Neeraj Qaur, Ld. Administrative
Civil Judge, Shahdara District. Karkardooma Court,
Delhi, thereafter made a complaint dated 15/10/13 U/s
195 Cr.P.C to the Ld. Chief Metropolitan Magistrate,
Shahdara District, Karkardooma Courts, Delhi enclosing,
the original complaint made by the Process Server. In the
said complaint he had observed that allegations made in
the complaint prima facie constitute offences U/s 186 IPC
and U/s 341 IPC.
11. Ld. CMM on receipt of the complaint had issued notice
to the DCP for 29/10/13 vide order dated 17/10/13. On
29/10/13, ACP Seemapuri had appeared and sought
adjournment for filing the report and the matter was
adjourned for 13/11/13. On that day, further time was
sought by ACP and matter was adjourned to 28/11/13.
On 28/11/13, report was filed on behalf of Addl. DCP vide
letter No. 179/13 dated 27/11/l3 submitting that inquiry
into the matter was got conducted by ACP Seemapuri
wherein fault on the part of the Inspector Devender Kumar,
SHO, PS Nand Nagri was established. In the impugned
order, Ld. Trial Court has reproduced the contents of the
complaint wherein allegations were made against the
SHO concerned and the staff and after considering the
complaint, Ld. Trial court had observed: that from the
allegations made in the complaint offences U/s 186, 341
and 342 IPC are clearly made out. Therefore, Ld. Trial
court has substantially compiled with the guidelines issued
by Hon'ble High Court in authority: reported as Subhash
Manchanda v State & Anr., 2013 II AD (Delhi) 277 and
Subhkaran Luharuka and Shree Ram Mills Ltd. v State
(Govt of NCT of Delhi) and Utility Premises Pvt Ltd. It Is
pertinent to mention here that in the present case, the
complainant is a Process Server posted at Karkardooma
Court who had gone to PS Nand Nagri to serve the
summons issued from the court of Shri Arvind Kumar, Ld.
ADJ and warrants-issued from the court-of Shri Sharad
Gupta, Ld. MM but he faced the difficulty in execution of
1104
[2025] 8 S.C.R.
Supreme Court Reports
the process at police station. He has narrated the entire
episode in his complaint which reflects that in VB Room,
one person disclosed his identity as Ct. Sanjay Kumar, who
received the processes and signed as HC Brhamjeet and
on protest by the complainant, he struck off the signatures
made by him and took the complainant to Reader of SHC
and then to Duty Officer who both refused to receive
the processes. He was thereafter, produced before the
revisionist to whom facts were disclosed, whereupon he
started misbehaving by remarking whatever has" been
done by Ct. Sanjay, Reader and Duty Officer was correctly
done and that he would, teach complainant how to do
service; that complainant is below a Constable and he
being fourth class employee was nobody to teach them
work and made him to stand up for half an hour with
hands up and was made to sit on floor for 3-4 hours as
punishment. He also asked his staff to bring DD register
and remarked that complainant should be confined (band
karo) and then he would see as to what the Judge of
complainant would do and that he (complainant) should
make the revisionist talk on phone with the Judge then he
would see as to what a Judge can do as Judge is also an
officer so is revisionist. Despite request of complainant to
let him go and come back after executing the court work,
complainant was not allowed. Complainant has placed
on record the photocopies of the process bearing the
cuttings allegedly done by the Constable who had put
the signatures of other Head Constable and subsequently
the signatures were struck off. The original or copy of the
process was not delivered to the Process Server but he
was provided only photocopy, thereof. He was allegedly
illtreated, wrongly confined, punished by making him
stand hands-up and was also allegedly asked to sit on
the floor for about 3-4 hours, He has made the complaint
against the SHO concerned, the revisionist herein. Under
the circumstances, he could not have been expected to
have first approached the revisionist against whom he
had the grievance and therefore the contention that he
could not have made the complaint directly to the court
has no merit.
[2025] 8 S.C.R.
1105
Devendra Kumar v.
The State (NCT of Delhi) & Anr.
12. The contention raised by Ld. Counsel for the revisionist
that the complaint U/s 195 Cr.P.C by Ld. ACJ to the court
of Ld. CMM could only be filed subsequent to holding an
inquiry U/s 340 Cr.P.C is not tenable because the question
of holding an inquiry U/s 340 Cr.P.C would arise only when
the offence referred to falls in clause (b) of Sub-section (1) of
Section 195 Cr.P.C which appears to have been committed
in or in relation to a proceeding In that court or as the case
may be in respect of a document produced or given in
evidence in a proceeding in that Court. The complainant
Process Server Ravi Dutt Sharma is a public servant
and being employee in the court he was administratively
subordinate to Ld. Administrative Civil Judge, who had
made the complaint U/s 195 Cr.P.C and therefore in the
complaint he had formed a view after considering the
contents of the complaint that from the allegations made
therein prima facie offence U/s 186 IRC and U/s 341 IPC
are constituted and therefore there was no illegality in the
complaint. The question of obtaining sanction against the
offender being a police officer, is to be appreciated at the
time of taking cognizance of offence or filing of chargesheet
and contention in this regard is pre-mature at this juncture.
13. The impugned order has been passed by Ld. CMM,
Shahdara and PS Nand Nagri falls in the territorial
jurisdiction of District Shahdara, Delhi and therefore Ld.
Trial Court was competent and had territorial jurisdiction
to pass the impugned order.
14. The contention that Ld. Trial court has completely failed
to appreciate the distinction between Chapters XV and
XXVI has no merit. In authority reported as Baru Ram v
State of Haryana 1990 Cr.L.J NOC 153, it was held that if
cognizance of offence has not been taken by the Magistrate
U/s 190(1)(a) Cr.P.C on receipt of complaint, he can direct
investigation U/s 156(3) Cr.P.C after registration of the
case. In authority reported as Minu Kumari & Anr v State
of Bihar and Ors (2006) 4 Supreme Court Cases 359,
It was held that the Magistrate is not bound to follow the
procedure laid down in sections 200 and 202 of the Code
for taking cognizance of a case U/s 190(1)(i)(a) Cr.P.C.
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15. It cannot be said that -the complaint made by Ld.
Administrative Civil Judge to Ld. CMM U/s 195 Cr.P.C
accompanied with the complaint of Process Server is abuse
of court process or of provisions of law. The contention that
allegations made by the Process Server are improbable
and absurd cannot be outrightly rejected or disbelieved
rather the photocopies of the warrant and summons placed
by him on record prima facie support his allegations.
The letter No. 179/13 dated 27/11/13 submitted by Mr.
Rajender Singh Sagar, Additional DCP, N/E District, Delhi
also supports the complainant as it has been reported that
in the inquiry conducted by ACP Seemapuri fault on the
part of Inspector Devender Kumar SHO, PS Nand Nagri
was established.
16. There is no doubt that a Magistrate cannot direct
investigation to be conducted by an officer of a particular
rank, However, in the present case the complainant had
made the allegations against the SHO, PS Nand Nagri,
(the revisionist herein) and therefore an order directing
investigation to be conducted by an Officer of the rank of
ACP cannot be said to be illegal because investigation by
a superior officer alone can serve the purpose of inquiry
or investigation.
17. In my considered view there appears no illegality,
irregularity or impropriety in the Impugned order. The
revision is therefore dismissed. Copy of order alongwith
trial court record be sent to the Ld. Trial Court. Revision
file be consigned to Record Room."
(Emphasis supplied)
B.
IMPUGNED ORDER
6.
The aforesaid order passed by the Additional Sessions Judge came
to be challenged before the High Court. The High Court declined to
interfere and rejected the writ petition. The impugned order passed
by the High Court reads thus:
"31. Prima facie; it is established that there was indeed
an obstruction/delay caused by the Police Officials of
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Devendra Kumar v.
The State (NCT of Delhi) & Anr.
P.S. Nand Nagri in execution of the court duties of the
Complainant in the service of the summon/warrants.
32. The first plea of the Petitioner that the Ld. CMM
could not be specifically directed registration of FIR u/s
186/341/342 IPC, 1860 is not tenable for the simple reason
that the observations are that these offences are prima
facie made put, but it does not curtail the investigations to
be confined only to these offences. The I.O. is obligated, to
conduct investigations fair and the submit the final report
on the offences if any, are established on the basis of the
investigations.
33. The second ground taken is that direct registration of
FIR in non-cognizable offences u/s 186 IPC, 1860 in the
absence of any complaint by the Court, is in contravention
of S.195 Cr.P.C. This argument is totally fallacious for
the simple reason that firstly, the complainant/Process
Server who is a public servant and as an employee of
the court, is administratively subordinate to the Learned
Administrative Civil Judge, who filed the complaint under
Section 195 of the Cr.P.C. to the Ld. CMM who in turn
forwarded it by endorsing the prima facie commission of
the offences and directing the investigations. Secondly,
the alleged misconduct of the Petitioner, by no stretch
of imagination, can be termed as acts in discharge of
his official duties. Thirdly, the Complaint under S.195
Cr.P.C. is required for taking cognizance on the charge
sheet; the issue of obtaining sanction is premature at
this stage. Thus, the Ld.ASJ has rightly observed that
there is no illegality in the complaint and the need for
sanction against the accused, a police officer, should
be addressed when taking cognizance or filing the
chargesheet.
34. The Third challenge is to the directions by the Ld.
CMM for the investigations to be conducted by officers of
Rank of ACP. Considering that the complainant has made
allegations against the SHO of PS Nand Nagri, it has
been rightly ordered that the investigation be carried out
by an officer of the rank of ACP. Such directions cannot
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be held illegal, as only an investigation conducted by a
higher-ranking officer can effectively serve the purpose of
a proper inquiry or investigation.
35. Fourth ground to challenge the Impugned Order was
that a Preliminary Enquiry should have been conducted
before directing registration of an FIR against a government
servant. However, the holding of an inquiry u/s. 340 Cr.P.C.
does not arise in the present case as the Ld. CMM had
filed a complaint u/s. 195(1)(a)(i) Cr.P.C. along with the
complaint of the respondent no. 2 for the offence under
s. 186 IPC. The Ld. ASJ has rightly observed that the
question of Preliminary enquiry under s. 340 Cr.P.C. would
have arisen only when the offence referred falls within
s. 195(1)(b) Cr.P.C. and does not pertain to the offence
under s.186 IPC.
36. The Fifth contention raised by the Petitioner that the
Ld. ASJ has failed to discuss the Enquiry Report dated
25.11.2013 of ACP, is completely misplaced as the Ld.
ASJ has not only discussed and referred to the Inquiry
report dated 25.11.2013 but has concluded that the same
clearly establishes the fault of the Petitioner: The reliance
of the Petitioner on this Report self-destructive as the
same clearly highlights the misconduct of the Petitioner
who used harsh words against the process server on
being provoked.
37. In light of the foregoing discussion, it is held that
there is no infirmity in the Order dated 28.11.2018 of the
Ld. CMM, directing registration of the FIR against the
concerned police officials which is upheld by the Ld. ASJ
vide the Order dated 03.12.2013 and the same warrant
no inference by this Court.
38. The Petition, along with pending application(s) if any,
are hereby dismissed."
(Emphasis supplied)
7.
In such circumstances referred to above, the petitioner is here before
this Court with the present petition.
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Devendra Kumar v.
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C.
SUBMISSIONS ON BEHALF OF THE PETITIONER
8.
Mr. Nikilesh Ramachandran, the learned counsel appearing for the
petitioner vehemently submitted that even if the entire case put up
in the FIR is believed to be true or accepted to be true, none of the
ingredients to constitute the offence punishable under Section 186 of
the I.P.C. could be said to be disclosed. In other words, the counsel
contends that the whole of the complaint even if taken to be true does
not reveal the commission of any offence by the petitioner-herein.
He would submit that the contents of the complaint even if read
together as true would not attract Section 186 of the I.P.C. far from
Section 341 of the I.P.C. According to the learned counsel for the
petitioner, mere obstruction is not enough unless it is accompanied
by use of some criminal force.
9.
The learned counsel vehemently submitted that no order could have
been passed in exercise of powers under Section 156(3) of the
Cr.P.C. for the registration of an offence under Section 186 of the
I.P.C. as the same is encompassed within Section 195(1)(a) of the
Cr.P.C. and cognizance of the offence punishable under Section 186
of the I.P.C. can only be taken upon a complaint as defined under
Section 2(d) of the Cr.P.C.
10. In such circumstances referred to above, it was prayed that there
being merit in this petition, the same may be allowed and the First
Information Report be quashed.
D.
ANALYSIS
11. We could have disposed of the present petition by just observing
that the petitioner may avail appropriate legal remedy before an
appropriate forum in accordance with law if at all at the end of the
investigation a chargesheet is filed. However, there is one issue
which needs a little clarification at our end.
12. It is not in dispute that the Administrative Civil Judge upon
instructions from the District and Sessions Judge, Shahdara lodged
a private complaint in the court of the Chief Metropolitan Magistrate,
Karkardooma Courts, Delhi. This was in tune with the procedure
prescribed under Section 195(1)(a) of the Cr.P.C. that it is either
the public servant concerned or some other public servant to whom
he is administratively subordinate, who would be allowed to file a
complaint in writing. To the extent of filing a private complaint everything
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proceeded in accordance with law. However, the Chief Metropolitan
Magistrate should have straightaway taken cognizance upon the said
complaint and issued process to the petitioner-herein. Asking the police
to investigate the complaint under Section 156(3) of the Cr.P.C. was
a very serious error that the Chief Metropolitan Magistrate could be
said to have committed. What was the need to involve the police in
a complaint lodged by a Civil Judge for the offence punishable under
Sections 186 and 341 respectively of the I.P.C.?
13. If an accused person, in situations such as the present, obstructs a
public servant in the discharge of his public function, the accused
person commits two offences. One offence committed by him is the
alleged obstruction which comes within Section 186 I.P.C. and the
other offence committed by him is the offence of having been guilty
of undermining the authority of the court. In our view, therefore, if
an accused is alleged to have committed an offence within Section
186, he would seem to have committed also an offence of contempt
of court.
14. In the facts of the present case, the right thing to do for the Chief
Metropolitan Magistrate should have been to take cognizance and
issue process under Section 204 of the Cr.P.C. In the present case,
there is no other serious offence or any offence figuring under
Section 195(1)(b)(ii) of the Cr.P.C. that perhaps would have required
the assistance of the police. In the case in hand, the dignity of the
court was at stake. There is lot of sanctity attached to a complaint
lodged by none other than a civil judge. In a complaint lodged by a
public servant, even verification of the contents of the complaint on
oath is not required. In such circumstances, we do not approve of
the order of police investigation under Section 156(3) of the Cr.P.C.
15. It would be argued that as the FIR was registered for non-cognizable
offences; Section(s) 186 and 341 of the I.P.C., respectively, and
even if Section 341 of the I.P.C. is to be treated as a distinct offence
being not covered under Section 195 of the Cr.P.C., the police report
if at all filed in future, insofar as the offence under Section 186 of
the I.P.C. is concerned, may be treated as a "complaint" in view of
the explanation to Section 2(d) of the Cr.P.C. Section 2(d) Cr.P.C.
reads as follows:
"(d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
[2025] 8 S.C.R.
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Devendra Kumar v.
The State (NCT of Delhi) & Anr.
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.-A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;"
(Emphasis supplied)
16. As per the explanation appended to the definition clause, a police
report disclosing a non-cognizable offence (Sections 186 and 341
I.P.C. respectively in the present case) shall be deemed to be a
complaint and the police offer shall be deemed to be the complainant.
Even then, the legal embargo under Section 195 Cr.P.C., so far as
Section 186 of the I.P.C. is concerned is not dispelled as the legal
fiction deems the police officer and not the aggrieved public servant
as the complainant. [See: Umashankar Yadav and Another v. State
of U.P., 2025 SCC OnLine SC 1066]
17. The entire trial would have been over within a period of three months
from the date of filing of the complaint in writing, had the CMM taken
cognizance on the very first day and issued process under Section
204 of the Cr.P.C. Having not done so at the right time and in the
right manner, it has been now twelve years that this litigation is still
pending.
18. Look at the mess created by one and all over a period of twelve
years. We are talking about upholding and maintaining the dignity
of court. This entire prosecution for the alleged offence is to uphold
the dignity of court. However, it has been twelve years but no one
has been able to uphold the dignity of the court by proceeding in
the right direction.
i.
Section 186 of the I.P.C.
19. Before proceeding further to discuss as to whether mere obstruction
itself would be enough or the act of obstruction is to be accompanied
by use of some criminal force, it may be necessary to notice one
particular allegation made against the petitioner herein in the
complaint. In the complaint the allegations are:
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"one warrant issued by the court of Shri Sharad Gupta, Ld.
MM and one summons issued by the court of Shri Arvind
Kumar, Ld. AD) were assigned to him to be served to SHO
PS Nand Nagri. On 3.10.2013 he reached PS Nand Nagri
at about 12.30 P.M. One Ct Sanjay Kumar Sharma was
present in the room of 5-8. The said constable received the
processes but signed as HC Brahmjeet. Process Server
Ravi Dutt asked him not to do so. Upon this Ct. Sanjay cut
the signatures made by him in the name of HC Brahmjeet
and took the processes to the Reader of SHO who also
refused to receive the processes. The process server went
to duty officer who also refused to take the processes.
The process server went to SHO Insp. Devender Kumar
and told him all the facts. The said SHO kept the processes
and abused the process server badly. SHO asked process
server to stand there raising his hands and wait till the
Havaldar/Head Constable comes. For about half an
hour process server stood there, raising his hands as a
punishment. He was also made to sit on the floor for about
3-4 hours as punishment. The process server begged SHO
to allow him to go as he had to serve other processes
also and told him that, he would come after serving other
processes. The SHO, however, did not allow the process
server to go. At about 4.30 p.m. one head constable come
who took the processes and gave receipt."
20. In Nishi Kanta Pal v. Emperor reported in AIR 1917 Calcutta 180,
the accused who were not parties to a suit in which a public right
of way was claimed, did not allow a Munsif, in whose Court the
suit was pending, to pass in a boat through a ditch which was their
private property, when the Munsif wanted to pass through it for the
purpose of making a local inspection in connection with the suit. The
Calcutta High Court held that the accused did not commit any offence
under Section 186 of the I.P.C. The Court took the view that there
was no right of way as such and to pass through it for the purpose
of making a local inspection and therefore, the accused are right in
obstructing the Munsif from passing through their lands.
21. In Jaswant Singh v. King Emperor reported in AIR 1925 Lahore
139, the Lahore High Court held that the use of the word voluntarily
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Devendra Kumar v.
The State (NCT of Delhi) & Anr.
in Section 186 of I.P.C. indicates that the Legislature contemplated
the commission of some overt act of obstruction, and did not intend
to render penal mere passive conduct. The Allahabad High Court in
Phudki v. State reported in AIR 1955 All. 104, held that the word
obstruction in Section 186 connotes some overt act in the nature of
violence or show of violence. It cannot be said that a man obstructed
another if that man runs away from arrest or if he does not actually
submit to the arrest. The Patna High Court in Janki Prasad Tibrewal
v. The State of Bihar reported in 1975 Crl. L.J.