Introduction:

The Supreme Court of India in the case Devendra Kumar v. State (NCT of Delhi) & Anr. [2025 LiveLaw (SC) 821] dealt with the interpretation and application of Section 195 of the Code of Criminal Procedure, 1973 (CrPC) in relation to offences under Sections 172–188 of the Indian Penal Code, 1860 (IPC). The matter arose when a court process server alleged that while discharging his duty of serving summons and warrants at a Delhi police station, he was abused, humiliated, and restrained by the Station House Officer (SHO), Devendra Kumar. This led to the initiation of criminal proceedings against the SHO. However, the crucial legal issue was whether such prosecution could be sustained in light of the mandatory requirements under Section 195 CrPC, which bars courts from taking cognizance of certain offences without a written complaint from the concerned public servant or their superior. The bench comprising Justice J.B. Pardiwala and Justice R. Mahadevan clarified the legal position, laying down guiding principles on the scope and applicability of Section 195 CrPC, especially in cases where the alleged offences are interconnected with those covered by the provision.

Arguments on Behalf of the Petitioner (Devendra Kumar – SHO):

The counsel representing the Petitioner argued that the FIR and subsequent proceedings were unsustainable as they were barred under Section 195 CrPC. The essential contentions included:

Bar on Cognizance Without Complaint – It was submitted that under Section 195(1)(a)(i) CrPC, no court can take cognizance of offences under Sections 172 to 188 IPC unless a written complaint is filed by the public servant concerned or by his superior officer. Since no such written complaint was filed, the entire prosecution was vitiated.

Wrongful Invocation of Section 156(3) CrPC – The Petitioner contended that the Chief Metropolitan Magistrate (CMM) had wrongly directed the police to register an FIR under Section 156(3) CrPC for offences under Sections 186 (obstructing a public servant in discharge of duty) and 341 (wrongful restraint) IPC. The CMM, instead of referring the matter to police investigation, could have taken cognizance only upon a proper written complaint as required under Section 195 CrPC.

Interconnected Offences Cannot Bypass Section 195 – The Petitioner argued that since the primary allegation was of obstruction under Section 186 IPC, and the offence of wrongful restraint under Section 341 IPC was intrinsically connected, the offences could not be artificially split up to circumvent Section 195.

Jurisdictional Defect – It was urged that cognizance taken by the Magistrate without adhering to Section 195 CrPC was without jurisdiction, rendering the trial and conviction void ab initio.

Arguments on Behalf of the Respondents (State & Process Server):

On the other hand, the counsel for the Respondents advanced arguments to sustain the proceedings:

Maintainability of FIR – It was argued that Section 195 CrPC imposes a bar only on the court taking cognizance of the offences, and not on the registration or investigation of an FIR by the police. Since obstructing a public servant (Section 186 IPC) is a cognizable offence, the police was well within its powers to register and investigate the case.

Complaint Filed by Judicial Officer – The Respondents contended that the process server had reported the incident to the District Judge, who referred it to an Administrative Civil Judge. The Civil Judge subsequently filed a written complaint before the Chief Metropolitan Magistrate. This, according to the Respondents, fulfilled the requirements of Section 195 CrPC.

Independent Offence of Wrongful Restraint – It was argued that wrongful restraint under Section 341 IPC was a distinct offence independent of Section 186 IPC. Even if Section 195 barred cognizance of obstruction, it did not prevent prosecution for wrongful restraint, which does not fall within the ambit of Sections 172–188 IPC.

Justice Demands Accountability – The Respondents further stressed that the SHO’s conduct of abusing, punishing, and detaining a process server who was merely discharging his legal duty was a grave misconduct and an abuse of power. Technical objections regarding procedure should not defeat substantive justice.

Supreme Court’s Judgment and Reasoning:

After considering rival contentions and reviewing precedents, the Supreme Court clarified the legal position regarding Section 195 CrPC.

Section 195 CrPC is Mandatory – The Court reiterated that Section 195 CrPC is mandatory and not procedural. If a Magistrate assumes cognizance of an offence under Sections 172–188 IPC without a written complaint from the concerned public servant or superior, the prosecution and all consequential proceedings stand vitiated for want of jurisdiction.

Bar on Cognizance, Not on Investigation – The Court emphasized that Section 195 CrPC bars the Magistrate from taking cognizance, but does not prevent the police from registering an FIR and conducting an investigation. Thus, the investigation into the allegations was valid, but cognizance by the court had to strictly comply with Section 195.

Interconnected Offences Cannot Be Split Up – The Court held that if the offence under Section 186 IPC (obstructing a public servant) is closely connected with another offence such as wrongful restraint (Section 341 IPC), then both cannot be artificially separated to bypass Section 195. The bar under Section 195 would apply to such interconnected offences as well. However, if an offence is truly distinct and independent, it may be prosecuted separately.

‘Obstruction’ Includes Non-Physical Acts – Importantly, the Court clarified that “obstruction” under Section 186 IPC is not limited to physical force. Any act creating an impediment to a public servant’s discharge of duty—such as verbal abuse, humiliation, or wrongful detention—would amount to obstruction.

Criticism of CMM’s Direction – The Court observed that the CMM erred in directing registration of FIR under Section 156(3) CrPC instead of directly taking cognizance based on the written complaint by the Administrative Civil Judge. However, instead of quashing the FIR, the Court left it open for the Petitioner to raise the bar of Section 195 before the trial court at the appropriate stage.

Principles Laid Down – The Court summarized guiding principles regarding Section 195 CrPC, such as:

Cognizance of offences under Sections 172–188 IPC requires a written complaint from the concerned public servant or superior.

Severance of offences is not permissible if it would circumvent Section 195.

Courts must apply twin tests to determine if distinct offences are invoked only to evade the bar of Section 195.

Police may investigate, but cognizance by courts requires compliance with Section 195 and Section 340 CrPC.

Outcome – While refusing to quash the FIR, the Supreme Court directed that the trial court must examine the bar under Section 195 at the stage of taking cognizance. The Petitioner was left free to raise this objection before the trial court.