2025 (4) TMI 1590 - HC - Indian Laws

Written complaint by public servant mandatory for Section 174-A IPC offences under Section 195(1)(a)(i) Cr.P.C.

Amandeep Gill & Anr Versus The State Govt Of Nct Of Delhi

Amandeep Gill & Anr Versus The State Govt Of Nct Of Delhi - 2024:DHC:7218 The core legal questions considered in this judgment revolve around whether cognizance of an offence under Section 174-A of the Indian Penal Code (IPC) can be taken by the Court without a complaint in writing by the concerned public servant, as mandated by Section 195(1)(a)(i) of the Code of Criminal Procedure (Cr.P.C.). The issues include:1. Whether Section 174-A IPC is subject to the bar on cognizance under Section 195(1)(a)(i) Cr.P.C., which requires a written complaint by a public servant before a Court can take cognizance of offences punishable under Sections 172 to 188 IPC.2. The interpretation of the legislative intent behind the insertion of Section 174-A IPC in 2006 and its relationship with Section 195 Cr.P.C., including whether the omission of Section 174-A from amendments to Section 195 Cr.P.C. was deliberate or inadvertent.3. The applicability of precedents, including the binding Supreme Court decision in C. Muniappan & Ors v State of Tamil Nadu (2010), and various High Court decisions, especially the conflicting views in Maneesh Goomer (Delhi High Court) and other High Courts such as Allahabad, Punjab and Haryana, Madras, and Himachal Pradesh.4. Ancillary procedural issues related to service of summons and warrants under Sections 68 and 87 Cr.P.C. and their impact on the validity of proceedings under Section 174-A IPC.Issue-wise Detailed Analysis1. Applicability of Section 195(1)(a)(i) Cr.P.C. to Section 174-A IPC offencesThe relevant legal framework includes Section 174-A IPC, which penalizes non-appearance in response to a proclamation under Section 82 Cr.P.C., and Section 195 Cr.P.C., which bars courts from taking cognizance of offences punishable under Sections 172 to 188 IPC except on a written complaint by the concerned public servant.The Court examined the decision in Maneesh Goomer (Delhi High Court), which held that Section 174-A IPC was not covered by the bar of Section 195 Cr.P.C., reasoning that Section 195 was not amended to include Section 174-A when it was introduced in 2006, and that Section 174-A was a cognizable offence allowing police to register FIRs and file charge sheets without a written complaint.However, the petitioners challenged this interpretation, relying heavily on the Supreme Court's decision in C. Muniappan, which dealt with Section 188 IPC (also covered under Sections 172 to 188 IPC and Section 195 Cr.P.C.) and held that cognizance cannot be taken without a written complaint by the public servant. The Court observed that Section 188 IPC is cognizable, yet the bar under Section 195 Cr.P.C. applies, indicating that cognizability does not override the statutory bar.The Court found the reasoning in Maneesh Goomer to be per incuriam, as it did not consider the binding Supreme Court precedent in C. Muniappan. The Court emphasized that Section 174-A IPC falls within the ambit of Sections 172 to 188 IPC as per Section 195(1)(a)(i) Cr.P.C., and the absence of a written complaint bars cognizance.This interpretation is supported by several High Court decisions:The Allahabad High Court in Sumit v State of UP held that no FIR can be registered and no cognizance taken under Section 174-A IPC without a written complaint, emphasizing the protection of personal liberty under Article 21 and the legislative intent to prevent harassment through police action under Section 174-A.The Punjab and Haryana High Court in Pradeep Kumar v State of Punjab highlighted the deliberate omission of Section 174-A from the exclusion list in Section 195 Cr.P.C. amendments, interpreting this as intentional legislative inclusion within Section 195's ambit.The Madras High Court and Punjab and Haryana High Court in other cases reiterated that cognizance under Section 174-A IPC requires a written complaint by the public servant, and police cannot register FIRs or proceed without it.The Himachal Pradesh High Court similarly held that Section 174-A IPC offences fall under Section 195(1)(a)(i) Cr.P.C. and courts are precluded from taking cognizance without a complaint.Thus, the Court concluded that the bar under Section 195 Cr.P.C. applies to Section 174-A IPC offences, and the impugned order relying solely on Maneesh Goomer was unsustainable.2. Legislative Intent and Statutory InterpretationThe Court analyzed the legislative history, noting that Section 195 Cr.P.C. has been in force since 1973, covering offences under Sections 172-188 IPC. Section 174-A IPC was inserted by an amendment in 2005, effective from June 2006. Despite this, Section 195(1)(a)(i) Cr.P.C. was not amended to exclude Section 174-A IPC.The Court held that it cannot be presumed that the legislature inadvertently omitted Section 174-A from the exclusion in Section 195. The principle of strict and literal interpretation applies, and courts should not fill legislative gaps by judicial interpretation.This view is reinforced by the recent legislative developments in the Bharatiya Nyaya Sanhita (BNS) 2023 and Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, where the equivalent of Section 174-A IPC (Section 209 BNS) is expressly excluded from the bar provision (Section 215 BNSS). This deliberate exclusion in the new statutes suggests that prior to these enactments, Section 174-A IPC was intended to remain within the purview of the bar under Section 195 Cr.P.C.The Court noted that any argument about legislative intent based on these new statutes would be speculative and encroaches upon the legislature's domain, which courts must avoid.3. Procedural Compliance Regarding Service of Summons and WarrantsThe petitioners also contended that summons and warrants were not validly served as required under Sections 68 and 87 Cr.P.C. The Court observed that the officer serving the summons was not present in Court, and no affidavit of service was filed. Furthermore, the petitioners were residing separately from their father, who was the address used for service.While these procedural deficiencies were raised, the Court found it unnecessary to delve deeply into these issues since the primary legal question concerning the bar under Section 195 Cr.P.C. was dispositive of the case.4. Treatment of Competing Arguments and PrecedentsThe Court carefully considered the conflicting decisions, particularly the Single Judge ruling in Maneesh Goomer and the subsequent differing views from other High Courts and the Supreme Court's binding precedent in C. Muniappan.The Court rejected the reasoning in Maneesh Goomer as not considering binding Supreme Court precedent and as being contrary to the legislative scheme, personal liberty protections, and the statutory language of Section 195 Cr.P.C.It also noted the unanimity among other High Courts in holding that Section 174-A IPC is subject to the bar of Section 195 Cr.P.C., requiring a written complaint before cognizance can be taken.ConclusionsThe Court concluded that the bar under Section 195(1)(a)(i) Cr.P.C. applies to offences under Section 174-A IPC, mandating that courts cannot take cognizance without a written complaint by the concerned public servant. The impugned order relying on the contrary view was set aside.Significant Holdings'Section 195 Cr.P.C. has not been correspondingly amended so as to include Section 174-A IPC which was brought into the Penal Code with effect from 23rd June, 2006. The Legislature was conscious of this fact and that is why though all other offences under chapter X of the Criminal Procedure Code are noncognizable, offence punishable under Section 174-A IPC is cognizable. Thus the Police officer on a complaint under Section 174-A IPC is competent to register FIR and after investigation thereon file a charge-sheet before the Court of Magistrate who can take cognizance thereon. Thus, I find no merit in the contention raised by the Learned Counsel for the Petitioner.' (Maneesh Goomer, rejected)'Undoubtedly, the law does not permit taking cognizance of any offence under Section 188 IPC, unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed. In such an eventuality and taking into account the settled legal principles in this regard, we are of the view that it was not permissible for the trial court to frame a charge under Section 188 IPC.' (C. Muniappan, binding precedent)'The above position clearly reveals that while inserting Section 174-A I.P.C., legislature was well aware that in Section 195(1)(a)(i) Cr. P.C., apart from Section 188 I.P.C., one more cognizable offence i.e. 174-A I.P.C. is being inserted for providing the bar of cognizance on the part of court for offences mentioned in Section 195(1)(a)(i) Cr. P.C., except on the complaint.' (Allahabad High Court, Sumit v State of UP)'The law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195, Criminal Procedure Code, are mandatory. Non-compliance of it would vitiate the prosecution and all other consequential orders. The Court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab-initio being without jurisdiction.' (Punjab and Haryana High Court, citing Supreme Court authority)'It is trite law that where the law bars any court from taking cognizance of the offence except on a complaint filed in particular manner, such court is precluded from taking cognizance in any other manner.' (Himachal Pradesh High Court)'The impugned order having solely relied on Maneesh Goomer (supra) for its conclusion, the said order cannot be sustained.' (The Court)The core principle established is that Section 174-A IPC offences fall within the ambit of Section 195(1)(a)(i) Cr.P.C., requiring a written complaint by the concerned public servant before a Court can take cognizance. This ensures protection of personal liberty and prevents arbitrary police action without due process. The Court emphasized adherence to the statutory bar and binding Supreme Court precedent over conflicting interpretations.Final determination: The petition challenging the framing of charges under Section 174-A IPC without a written complaint under Section 195 Cr.P.C. is allowed. The impugned order dismissing the revision petition is set aside, reaffirming the mandatory requirement of a written complaint for cognizance of Section 174-A IPC offences.