The Jammu and Kashmir High Court have continued that Section 195 CrPC (Prosecution for contempt of lawful authority) only bars taking of cognizance by the Magistrate and not the investigation by the Police. The Judge clarified that the bar is only on Magistrate taking cognizance of the offences mentioned in Section 195 CrPC, i.e. offences punishable under Sections 172 to 188 of IPC, except on a complaint in writing made by the public servant.
He interpreted that because the word ‘complaint’ as defined under Section 2(d) CrPC would not involve a police report, hence, the Police can maintain an FIR and examine the offences. The High Court pointed to the Supreme Court’s judgment in the State of Punjab vs. Raj Singh and Another (1998), where it was regarded that the statutory power of the Police to investigate under the Code is not in any way constrained or limited by Section 195 CrPC.
However, upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence, the Court would not be sufficient or competent to take cognizance thereof provided the prohibition of Section 195(1)(b) CrPC.
Refusing to quash the FIR, the High Court mentioned that the public servant whose order is violated or his superior officer might register a complaint based on FIR and material collected during the police investigation.
