186 IPC | Magistrate Cannot Take Cognizance Without Complaint by Concerned Public Servant – Cognizance Based on Police Report is Illegal”: Calcutta High Court

“Proceeding Initiated Without Proper Complaint or Authority is an Abuse of Judicial Process”, On 17 November 2025, the Calcutta High Court delivered a notable judgment clarifying the mandatory procedural safeguards required under Section 195(1)(a) CrPC before prosecuting a person for obstructing a public servant under Section 186 of the Indian Penal Code, 1860. Justice Dr. Ajoy Kumar Mukherjee, quashing the entire criminal proceeding pending before the Chief Judicial Magistrate, Tamluk, held that the prosecution was vitiated from inception due to absence of a valid complaint from the competent public servant or administrative superior, as required by law.

The revision arose from a case registered against petitioner Rajesh Kshetry on allegations of using abusive language and obstructing a National Volunteer Force (NVF) member on traffic duty. The Court ruled that both the initiation of the enquiry and the Magistrate’s order taking cognizance were legally unsustainable, lacking both procedural compliance and substantive ingredients of the alleged offence.

“No Court Can Take Cognizance of Offence under Section 186 IPC Except on a Complaint by the Public Servant Concerned or Their Administrative Superior”

Justice Mukherjee’s judgment stressed the absolute bar created by Section 195(1)(a) CrPC, stating:

“There is no discretion vested in the Magistrate under Section 195(1)(a); unless a complaint is filed by the public servant allegedly obstructed, or by someone administratively superior to them, the court cannot assume cognizance.”

In the present case, the alleged obstruction was against Rabi Sankar Das, an NVF personnel on duty. However, the complaint was not filed by him, nor by any of his superiors. Instead, a police report was filed by a Sub-Inspector, Mihir Kumar Sahu, based on a general diary entry.

The Court held that such a report does not fulfil the statutory mandate, observing:

“Since the prosecution report was filed by a Sub-Inspector who was neither the aggrieved public servant nor his administrative superior, and no complaint was filed by the actual victim, the Magistrate's act of taking cognizance is clearly contrary to law.”

“Police Report Is Not a Complaint Unless It Follows Investigation Under Section 155(2) CrPC – Magistrate’s Reliance on Enquiry Report Misplaced”

Justice Mukherjee drew a vital distinction between ‘complaint’ and ‘police report’ as defined under Section 2(d) and 2(r) of the CrPC. Although the explanation to Section 2(d) allows a police report to be treated as a complaint in cases of non-cognizable offences, this is only when it results from an investigation conducted with prior Magistrate’s permission under Section 155(2) CrPC.

The Court found that no such permission was sought or granted in this case. The report filed was not the product of investigation, but merely of a preliminary enquiry.

“The report in question merely records what the officer ‘came to learn’, without disclosing any evidence or details of investigation. Thus, it cannot be deemed a complaint in the legal sense.”

Accordingly, the Court held that the Magistrate committed a jurisdictional error by treating the enquiry report as a complaint, and in bypassing the mandatory procedural safeguards.

“NVF Personnel Are Not Administratively Subordinate to Sub-Inspector of Police – Sub-Inspector Had No Locus to File Complaint”

A critical issue addressed by the Court was the hierarchical relationship between NVF personnel and police officers. The Court held that under the West Bengal National Volunteer Force Act, 1949, NVF personnel are administratively subordinate only to officers within the NVF hierarchy – such as Commandants and Company Commanders – not to police officers.

Citing R.G. Jacob v. Republic of India, AIR 1963 SC 550, the Court clarified:

“The term ‘administratively subordinate’ in Section 195 CrPC has a specific connotation – it is not synonymous with mere functional hierarchy.”

Since Sub-Inspector Sahu was not an administrative superior to the NVF member allegedly obstructed, his filing of the complaint was without authority, rendering the proceedings invalid from inception.

“Allegation of Obstruction is Vague and Fails to Disclose Essential Ingredients of Section 186 IPC”

The judgment also scrutinized the substantive allegations. The police report only stated that the petitioner used “filthy language and misbehaved”, and vaguely claimed that he “obstructed” the NVF officer.

The Court emphasised:

“Mere abusive language or misbehaviour does not constitute obstruction under Section 186 IPC unless there is a specific overt act interfering with the public servant’s duty.”

Relying on the Supreme Court’s decision in Neelu Chopra v. Bharti, (2010) Cri LJ 448, the Court held that the complaint lacked particulars, and was based on a bare recital of statutory language without factual substantiation, failing to show any act of force, threat, or physical impediment.

“Complaint Appears to Be a Counterblast – Lodged in Vengeance After Petitioner Filed Assault Complaint Against NVF Officer”

The timeline revealed that the petitioner had himself lodged an FIR against the NVF officer on the very day of the alleged incident, complaining of being assaulted. He had further written to the Commandant, WBNVF, and the Superintendent of Police, triggering internal inquiry against the NVF member.

Significantly, the complaint against the petitioner was filed only after these developments, leading the Court to conclude that the case was initiated as a retaliatory measure.

“The complaint appears to be filed merely to spite the petitioner and derail proceedings against the NVF officer. It squarely falls under categories (6) and (7) laid down in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.”

Those categories include:

• Where continuation of proceedings is barred by express legal provision, and
• Where prosecution is manifestly malicious or with ulterior motive.

“Magistrate Mechanically Took Cognizance Without Judicial Application of Mind”

Justice Mukherjee also criticised the Magistrate for failing to record proper reasons while taking cognizance. The order, as per Rule 183 of the Calcutta High Court Criminal (Subordinate Courts) Rules, 1985, must reflect application of judicial mind.

Instead, the Court found:

“The Magistrate merely filled in blanks in a pre-drafted format and signed it – this mechanical exercise cannot be recognised as a lawful cognizance order.”

Cognizance Taken Without Proper Complaint or Procedural Authority Is Null – Entire Proceeding Quashed

Summing up, the Court observed:

“This is a classic case of misuse of legal process – with the Magistrate ignoring statutory preconditions, the police officer lacking authority, and the complaint lacking both facts and legal basis.”

Accordingly, the Court allowed the revision application, and quashed the entire criminal proceeding, holding that the continuation would amount to abuse of process under Section 482 CrPC.

Date of Decision: 17 November 2025