Reaffirming the Requirement of a Written Complaint for Cognizance Under Section 188 IPC

1. Introduction

In the case of Bijay Kumar @ Bijay Kumar Bimal v. State of Bihar and Anr (Criminal Miscellaneous No. 26029 of 2016), decided on January 7, 2025, by the Hon’ble Patna High Court, the Court examined whether cognizance could be taken by a Magistrate for an offence punishable under Section 188 of the Indian Penal Code (IPC) on the basis of a police report. This matter arose from alleged violations of the model code of conduct during an election campaign, where it was asserted that a public meeting was extended beyond the permissible time and a helicopter was landed contrary to directives by the authorities.

The key issues revolved around (i) the validity of proceedings initiated through a First Information Report (FIR) and subsequent charge sheet for an offence under Section 188 IPC, (ii) the mandatory requirement of Section 195(1)(a) of the Code of Criminal Procedure (CrPC) that a written complaint by a competent public servant is necessary for taking cognizance of offences falling under Sections 172 to 188 IPC, and (iii) whether the impugned order taking cognizance could withstand judicial scrutiny in light of these procedural requirements.

The petitioner (Bijay Kumar) urged that since no written complaint was filed by the competent authority (the relevant public servant), and only an FIR had been registered, the subsequent action of the Magistrate in taking cognizance was illegal. The State argued in favor of the impugned order, citing that Section 188 IPC is a cognizable offence and that a cognizable offence may ordinarily be investigated and charge-sheeted by the police.

2. Summary of the Judgment

The Hon’ble High Court quashed the order taking cognizance under Section 188 IPC, reiterating that the bar prescribed under Section 195(1)(a) CrPC strictly applies. The Court ruled that a Magistrate cannot take cognizance of offences under Section 188 IPC on the basis of a police report alone. According to the Court, the clear language of Section 195(1)(a) CrPC mandates that cognizance of such offences can only be taken on the basis of a written complaint by the public servant whose order was allegedly violated or by that public servant’s administrative superior. In the absence of this prescribed procedure, the entire process stood vitiated. Consequently, the impugned cognizance order was set aside with reference to the petitioner.

3. Analysis

3.1 Precedents Cited

The Court deferred extensively to well-established rulings of the Supreme Court as well as other High Courts. Some key precedents included:

State of U.P. v. Mata Bhikh [1994 (4) SCC 95]: Emphasized the mandatory nature of Section 195 CrPC and the requirement that a written complaint by the concerned public servant is a sine qua non for initiating prosecution under Section 188 IPC.
C. Muniappan v. State of T.N. [(2010) 9 SCC 567]: Summarized that Section 195(1)(a) CrPC is mandatory and non-compliance invalidates the trial ab initio.
Union of India v. Ashok Kumar Sharma [(2021) 12 SCC 674]: Distinguished the principle laid down in Lalita Kumari v. State of U.P. from situations where special statutory provisions, akin to Section 195, override the usual process of registering FIRs for cognizable offences.
State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]: The Court invoked the guidelines enumerated in paragraph 102, particularly sub-paragraphs (1) and (6), to justify quashing proceedings where no prima facie case is made out and where there is an explicit legal bar to cognizance.

These pivotal judgments underscore that although Section 188 IPC is a cognizable offence, the usual procedure involving an FIR and a police report cannot supersede the mandatory requirements of Section 195(1)(a) CrPC.

3.2 Legal Reasoning

The crux of the Court’s reasoning lies in the statutory bar imposed by Section 195(1)(a) CrPC. While Section 188 IPC is indeed listed as a cognizable offence, Section 195(1)(a) CrPC explicitly mandates that for offences falling under Sections 172 to 188 IPC, only a written complaint by the corresponding public servant or a legitimate superior of that public servant can set the criminal process in motion. This requirement takes precedence over the general rule (usually found in Section 190 CrPC) that allows Magistrates to take cognizance of an offence on the basis of a police report.

The Court also pointed out that the written report lodged with the police, forming an FIR, does not qualify as a “complaint” as defined under Section 2(d) CrPC. “Complaint” and “police report” are mutually exclusive under the Code. Thus, the Magistrate cannot bypass this distinction and must rely solely on a duly authorized written complaint from the concerned public servant when dealing with offences under Section 188 IPC.

3.3 Impact

This Judgment reinforces the strict compliance required by Section 195(1)(a) CrPC. It effectively prevents the police from directly prosecuting individuals for disobedience of lawful orders of public servants under Section 188 IPC without the required complaint in writing. Future cases involving the violation of prohibitory orders, model code of conduct conditions, or similar directives must follow this carefully laid down procedural path.

By delineating clear steps, courts and law enforcement agencies are reminded that constitutional safeguards and statutory protections ensure that prosecutions under Section 188 IPC are not misapplied or based on ill-founded private instigation. This judgment will likely be cited as a binding precedent whenever those accused of Section 188 IPC violations challenge the mode of institution of proceedings.

4. Complex Concepts Simplified

Several procedural and legal concepts arise in the judgment:

Cognizable Offence: An offence for which a police officer can arrest without a warrant and initiate an investigation without orders from a court. Although Section 188 IPC is cognizable, Section 195(1)(a) CrPC imposes a specific procedural requirement overriding normal cognizance rules.
Complaint vs. Police Report: Under Section 2(d) CrPC, a “complaint” has a distinct meaning—it cannot be a police report. When the law specifically demands a “complaint,” an FIR or charge sheet on the same facts file does not fulfill that demand.
Model Code of Conduct: Although not a statutory provision by itself, the Model Code of Conduct is a set of guidelines and instructions for political parties and candidates during elections. Violating such guidelines can lead to criminal prosecution if backed by valid and lawful orders of the public authority. However, Section 188 IPC requires a written complaint from the competent public servant.
Bar under Section 195(1)(a) CrPC: This provision effectively restricts courts from taking cognizance on certain offences (including Section 188 IPC) unless the public servant concerned (or an administrative superior) initiates the proceedings. Without such a complaint, any subsequent legal action can be quashed as a nullity in law.

5. Conclusion

The Patna High Court’s ruling in Bijay Kumar @ Bijay Kumar Bimal v. State of Bihar and Anr underscores the mandatory requirement of a written complaint by the concerned public servant, as prescribed by Section 195(1)(a) CrPC, for taking cognizance of offences under Section 188 IPC. Even though Section 188 IPC is a cognizable offence, the general rule of registering an FIR does not apply because the Code imposes an explicit procedural safeguard against vexatious or ill-founded prosecutions. This decision clarifies and reaffirms that no Magistrate can take cognizance of disobedience to a public servant’s order without the public servant’s direct invocation through a written complaint. As such, it carries significant implications for prosecutorial practice, ensuring that the protective shield of Section 195 CrPC remains firmly in place.