Offences under Section 172–188 IPC can’t be split to bypass Section 195 CrPC: Supreme Court lays down guidelines

The Supreme Court on Wednesday ruled that courts cannot take cognizance of offences under Sections 172–188 of the Indian Penal Code (dealing with contempt of the lawful authority of public servants), unless a written complaint is made by the concerned public servant or by the officer to whom that public servant is administratively subordinate [Devendra Kumar versus The State (NCT of Delhi) & Anr.].

A Bench of Justice JB Pardiwala and Justice R Mahadevan held that where an offence squarely falls under Section 195(1)(a)(i) of the Code of Criminal Procedure (CrPC) (which mandates a written complaint by a public servant), the court cannot sidestep this bar by splitting charges and proceeding on related offences from the same facts.

At the same time, severance may be permissible depending on the facts, allegations, and evidence, but not if it undermines the safeguard built into Section 195(1)(a)(i) CrPC, Court added.

"If in truth and substance, an offence falls in the category of Section 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 of splitting up. It would depend upon the facts of each case, the nature of allegations and the materials on record. Severance of distinct offences is not permissible when it would effectively circumvent the protection afforded by Section 195(1)(a)(i) of the CrPC, which requires a complaint by a public servant for certain offences against public justice," the Court observed.

The Court proceeded to lay down six principles to be followed when dealing with offences that fall within the protective scope of Section 195 CrPC:

• Courts cannot take up offences under Sections 172–188 IPC unless a written complaint is made by the concerned public servant or their superior.

• If an offence falls under Section 195(1)(a)(i) CrPC, courts cannot bypass it by breaking the facts into other distinct offences.

• Splitting offences is not absolutely barred; it depends on the facts, allegations, and available evidence in each case.

• When deciding if offences can be split, courts must apply a twin test by examining whether extra offences are added only to bypass Section 195 and whether the core facts genuinely disclose an offence that requires a public servant’s complaint.

• When an accused commits offences separate from those under Section 195, the section applies only to the listed offences. However, if the other offences are closely linked and form part of the same transaction, they too would fall within Section 195 depending on the facts of each case.

• Sections 195(1)(b)(i)–(iii) and 340 CrPC do not limit the police from investigating. After the investigation, Section 195 bars the court from taking cognizance, but the court can file a complaint based on the FIR and investigation materials if Section 340 procedure is followed.

The Court was hearing a plea by Station House Officer (SHO) Devendra Kumar (petitioner) after a process server alleged mistreatment at Nand Nagri Police Station while serving court summons and warrants in 2013.

Process server Ravi Dutt Sharma stated that constables refused to accept the documents and on approaching the SHO, he was abused, forced to stand with raised hands, made to sit on the floor for hours and restrained until a Head Constable finally accepted the papers.

Sharma reported the incident to the District & Sessions Judge, Shahdara, who in turn directed the Administrative Civil Judge to file a private complaint under Section 195 of the Code of Criminal Procedure (CrPC).

Acting on this complaint, the Chief Metropolitan Magistrate ordered registration of a first information report (FIR) against the SHO under Sections 186 (obstructing public servant), 341 (wrongful restraint), and 342 (wrongful confinement) of the Indian Penal Code (IPC).

The petitioner challenged it before the Sessions Court in 2013 and the Delhi High Court in 2024. However, both the appeals were dismissed and both Courts held that that the allegations were prima facie supported by an inquiry report.

Aggrieved, he approached the Supreme Court questioning the legality of the proceedings and the applicability of Section 186 IPC.

The Court observed that while the Administrative Civil Judge correctly filed a complaint under Section 195 CrPC, the Chief Metropolitan Magistrate committed an error by directing police investigation under Section 156(3) CrPC.

The Court added since Section 195 specifically restricts cognizance to be taken on the complaint of the public servant, the proper course would have been for the Magistrate to directly take cognizance and issue process under Section 204 CrPC rather than involving the police.

The Court noted that this procedural lapse had unnecessarily delayed the matter for twelve years, undermining the very dignity of the judicial process which the prosecution sought to uphold.

"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," the Court lamented.

On the substantive issue of whether “obstruction” under Section 186 of the Indian Penal Code requires physical force, the Supreme Court clarified that the term is not limited to physical acts. It is sufficient if the conduct of the accused makes it difficult or impossible for a public servant to discharge lawful duties.

The Court observed that threats, abuse or wrongful prevention are enough to constitute obstruction.

Accordingly, the Court disposed of the petition, leaving it open to the petitioner to raise the contention regarding the bar under Section 195 of CrPC before the trial court, if and when a chargesheet is filed for the offences mentioned in the FIR.

The Court further directed that Registry shall circulate a copy of the judgment to all the High Courts.

Advocates Nikilesh Ramachandran, SC Sagar, Shubham Seth, Ananya V Mehra and Soumya Saisa Das appeared for the petitioner.

[Read Judgment]