PETITIONER:
KAMLAPATI TRIVEDI
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT13/12/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
SINGH, JASWANT
KOSHAL, A.D.
CITATION:
1979 AIR 777 1979 SCR (2) 717
1980 SCC (2) 91
CITATOR INFO :
RF 1981 SC 22 (15,16)
RF 1982 SC1238 (10)
ACT:
Code of Criminal Procedure 1898-S. 195(1)(b)-Scope of-
'In relation to any proceedings in any court' meaning of-
Police submitting final report under s. 173 Cr. P.C. and
Magistrate passing an order thereon-Whether judicial order-
Attracting the bar in s. 195(1)(b).
HEADNOTE:
Section 195(1)(b) of the Code of Criminal Procedure
provides that no court shall take cognizance of any offence
punishable under any of the sections enumerated therein (one
of which is s. 211) if such offence is alleged to have been
committed in or in relation to any proceedings in any court.
The appellant filed a complaint with the police that
the accused criminally trespassed, assaulted and abused him
in filthy language and committed theft of money and valuable
documents of the school of which he was the secretary. After
investigation the police found that there was no evidence
against the accused and therefore, the Magistrate discharged
all the accused.
One of the accused thereupon preferred a complaint
under s. 211 IPC alleging that the appellant had instituted
criminal proceedings with the intent to cause injury to him
and others knowing that there was no just or lawful ground
and thereby caused pecuniary loss and agony to him.
The appellant moved the High Court for quashing the
proceedings before the Magistrate because in the absence of
a complaint in writing of the Magistrate himself, the
Magistrate had no jurisdiction to take cognizance of the
offence under s.211 IPC in view of the provisions of s. 195
(1)(b) of the Cr. P.C. The High Court refused to quash the
proceedings.
On further appeal it was contended that an order passed
by a Magistrate on a report submitted by the police under s.
173 Cr. P. C. being a judicial order the bar of s. 195(1)(b)
would be attracted.
Allowing the appeal,
^
HELD: Per Koshal, J. (with whom Jaswant Singh, J.
agreed) 1. The complaint against the appellant was in
respect of an offence alleged to have been committed in
relation to a proceeding in court. In taking cognizance of
it the Magistrate acted in contravention of the bar
contained in s. 195(1)(b) because there was no complaint in
writing either of the Magistrate or of a superior court.
[756 D]
2. Taking cognizance of any offence by a Magistrate
under s. 190 is not a condition precedent for him to be
regarded as a court. Magistrates are specifically labelled
as courts by s. 6 of the Code of Criminal Procedure and,
therefore, have to be regarded as such. It is true that a
Magistrate also performs functions which are of an executive
nature and do not fall within
718
the sphere of judicial duties and it may plausibly be argued
that in the discharge of those functions he does not act as
a court. But then he cannot but be regarded as a court when
he acts judicially. Sections 496 and 497 which make
provision for bail matters describe a Magistrate while
dealing with those matters as a court and these sections
operate at all stages of a case including that when the
investigation has just started. Neither in these sections
nor in s. 195 is there anything to show that the word
"court" has been used in two different senses and therefore
the legislature must be deemed to have used it in one sense
wherever it occurs in the Code. [743 B, 742 D-H]
3. The well accepted position is that a court created
by a statute, when it performs judicial functions, would be
deemed to act as a court; and Magistrates' courts are
regarded as such unless they are performing executive or
administrative functions. [744 F-G].
Shell Co. of Australia Ltd. v. Federal Commissioner of
Taxation, [1931] AC 275 PC and Halsbury's Laws of England
(3rd Edn.) Vol. 9 p. 342; Virinder Kumar Satyawadi v. The
State of Punjab, [1955] 2 SCR 1013; Smt. Ujjam Bai v. State
of U.P., [1963] 1 SCR 778; referred to.
4. The source of power exercised by the authority, i.e.
whether it is executive or judicial power, would make all
the difference in the determination of the question whether
the authority acts as a court or merely as a quasi judicial
tribunal. [746 F].
5. Section 4(2) of the Code of Criminal Procedure
provides that "all words and expressions used herein and
defined in the IPC and not hereinabove defined shall be
deemed to have the meanings respectively attributed to them
by the Code." In the matter of dispensation of criminal
justice the Indian Penal Code (which contains the
substantive law) and the Criminal Procedure Code (which
deals with procedure) may be regarded as supplementary to
each other. The term "Judge" and "Court of justice" used in
ss. 19 and 20 of the Indian Penal Code give an indication of
the attributes of a court as used in criminal law generally.
Although the term "court of justice" has not been used in
the Cr. P.C. the expression "Judge" is used in s. 197 and,
therefore, when a judge (including a Magistrate) who is
empowered to act judicially and does so act, constitutes not
merely a Court but a Court of Justice. [747 E, D, C, F-G].
6. The caption of Chapter XIV is not decisive of the
question whether a particular provision contained in it is
limited to the supervisory jurisdiction of the Magistrate in
relation to the investigation being conducted by the police
or deals with his judicial functions as a court. Although
Chapter XIV is headed "Information to the police and their
powers to Investigate", it is not confined to matters which
are strictly concerned with the investigation stage but also
deals with situations arising after the investigation has
been finalised. For example, s. 172(2) clearly deals with
the use of police diaries at an inquiry or trial which a
Magistrate holds not in his administrative or executive
capacity but as a court. Similarly sections 169 and 170 are
another instance in point in which an order passed by a
Magistrate is a judicial order determining the rights of the
parties after application of his mind. If that
719
be so the order passed by the Magistrate in the instant case
must be characterised as a judicial act and therefore as one
performed in his capacity as a court. [748 D, 747 G-748 C,
750 G, 751 E]
7. For a tribunal to be acting as a court, it is not
necessary that the parties must have a right of hearing of
adducing evidence at every stage of the proceedings before
it. While passing interlocutory orders, issuing temporary
injunctions etc., the presiding officer of a court does act
as a court. [751 H-752 B].
8. All orders passed by a Magistrate acting judicially
(such as orders of bail and those passed under sub-s. (3) of
s. 173 of the Code discharging the accused or orders taking
cognizance of an offence complained of) are parts of an
integral whole which may end with a definitive judgment
after an inquiry or a trial or earlier, according to the
exigencies of the situation obtaining at a particular stage
and which involves, if the need be, the adducing of evidence
and the decision of the Magistrate on an appreciation
thereof. They cannot be viewed in isolation and given a
character different from the entire judicial process of
which they are intended to form a part. [752 E-F].
Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR
668; M. L. Sethi v. R. P. Kapur & Anr., [1967] 1 SCR 520;
referred to.
Kailasam, J. (dissenting)
The restricted meaning given to "Court" in s. 195(2)
Cr. P.C. read along with the conditions to be specified
before a complaint is preferred by the court, indicate that
the proceedings before a Magistrate in which he agrees with
the report by the police under s. 169 Cr. P.C. and the
proceedings in remand or bail applications during
investigations will not amount to proceedings 'in or in
relation to court.' [737 H].
1. The policy behind the bar against institution of
criminal proceedings by a private party is that when
offences are committed against lawful authority or false
evidence is given or offence is committed against public
justice, it should be the concerned authority that should
prefer a complaint and no one else. [723 H].
2. A court is charged with a duty to decide disputes in
a judicial manner and declare the rights of parties in a
definitive judgment. To decide in a judicial manner involves
that the parties are entitled as a matter of right to be
heard in support of their claim and to adduce evidence in
proof of it. It also imparts an obligation on the part of
the authority to decide the matter on a consideration of the
evidence adduced and in accordance with law [725 B-C].
3. It is settled law that when a Magistrate applies his
mind on complaints, he must be held to have taken cognizance
of the offence mentioned in the complaint but when he
applies his mind not for such purpose but for the purpose of
ordering investigation under s. 156(3) Cr. P.C. or issues a
search warrant for the purpose of investigation, he cannot
be said to have taken cognizance of any offence. [727 E]
4. When the Magistrate receives a report under s. 169
of the Cr. P.C. that there is not sufficient evidence or
reasonable ground for suspicion and agrees
720
with it, he may be doing so in exercise of his judicial
function but the question is whether he is acting as a
court. Most of the requirement of a court are lacking at
this stage. [727 F, 729 C].
5. To be classified as a court, an authority must be
charged with a duty to decide disputes in a judicial manner
and declare the rights of parties in a definitive judgment.
This involves that the parties are entitled as a matter of
right to be heard in support of their claim and to adduce
evidence in proof of it and an obligation on the part of the
authority to decide the matter on a consideration of the
evidence adduced and in accordance with law. [729 D-E].
6. Though the Magistrate in deciding whether or not to
accept the report of a police officer under s. 169 Cr. P.C.
may be exercising his judicial mind and though there may be
some of the trappings of the court, at this stage he cannot
be termed as a court within the provisions of s. 195(2)
Cr.P.C. At this stage the rights of the parties are not
finally decided as the complainant is entitled to file a
complaint directly to the Magistrate. The persons accused
are not before the Magistrate and neither the complainant
nor the accused are entitled to be heard or to adduce
evidence before the Magistrate at this stage. It cannot,
therefore, be said that the Magistrate has a duty to decide
the matter on a consideration of the evidence adduced before
him. [729 B, F-H]
7. The proceeding under s. 167 Cr. P.C. is during
investigation. The Magistrate to whom the accused is
produced can from time to time authorise detention of
accused in such custody as such Magistrate thinks fit for a
term not exceeding 15 days in whole. If he has not the
jurisdiction to try the case or commit it for trial but
considers further detention is necessary, he may order the
accused to be forwarded to a Magistrate having jurisdiction.
In investigation by the police the Magistrate is associated
in a supervisory capacity. The action taken by the
Magistrate cannot be taken to be that of a court for the
Magistrate who has no jurisdiction to try the case has a
limited power. The trial commences only after the offence
has been taken cognizance of. [735 E-F]
8. Section 496 provides as to when bail may be taken in
non-bailable offences. The provisions of s. 496 and s. 497
speak of an accused person in custody charged with a non-
bailable offence being produced before court at any stage of
the proceedings. The section deals with the exercise of the
power of a court at any stage of proceedings when the
accused is brought before a Court while in the custody of
the police officer. Though there may be some trappings of a
court and the section itself mentions the word 'court', the
requirements for being a court for the purpose of s. 195(2)
have not been satisfied. [735 H-736 D]
9(i) There is a conflict between various High Courts as
to whether a complaint is necessary when on a police report
under s. 169 the Magistrate does not take any further
action. The Bombay, Saurashtra and Andhra Pradesh High
Courts in 1946 Bom. 7(11), 1952 Saurashtra 67(68) and 1969
AP 281 (287) have held that a Magistrate passing an order on
a final report of police under s. 173 referring the case as
false should be deemed to be a court passing a judicial
order disposing of the information to the police, and that
in such a case, the complaint of the Magistrate is necessary
for the prosecution of the informant under s. 211 IPC. The
Madras, Calcutta and
721
Allahabad High Court in AIR 1934 Mad. 175, AIR 1948 All. 184
FB and AIR 1916 Cal. 593 have held the other view. (ii) When
no further proceedings are taken by the Magistrate or
receipt of a police report under s. 169 there is no
proceeding in or in relation to any court and therefore, no
complaint by the court is necessary. [733 G-734 B].
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45
of 1972.
Appeal by Special Leave from the Judgment and Order
dated 18-8-71 of the Calcutta High Court in Crl. Revision
No. 1006 of 1970.
Sukumar Ghosh for the Appellant.
M. M. Kshatriya and G. S. Chatterjee for the
Respondent.
Jaswant Singh, J. concurred with the Opinion of Koshal,
J. Kailasam, J. gave a dissenting Opinion.
JASWANT SINGH, J. I have had the advantage of going
through the judgments prepared by my esteemed Brothers
Kailasam and Koshal. While I find myself unable to agree
with the view expressed by my learned Brother Kailasam, I am
inclined to agree with the opinion of and the conclusion
arrived at by my learned brother Koshal.
KAILASAM, J. This appeal is filed by special leave by
Kamlapati Trivedi against the judgment of the Calcutta High
Court in Criminal Revision No. 1006 of 1970 by which it
refused to quash the proceedings which were taken cognizance
of by the Magistrate, on a complaint given by one Satya
Narayan Pathak.
Satya Narayan Pathak is the Secretary of Bhartiya
Primary School in Howrah. The appellant before us, Kamlapati
Trivedi, was a Head Teacher of the Bhartiya Primary School.
On 18th April, 1970 Satya Narayan Pathak served a Notice on
the appellant calling upon him to show cause why he should
not be found guilty of negligence of duty. On receipt of the
Notice, the appellant attempted to remove certain records
from the school but he was prevented. On the same day, that
is, on 18th April, 1970 the appellant complained in writing
to the Officer In-charge of Bally Police Station, Howrah at
21.40 hours that Satya Narayan Pathak and others criminally
trespassed, assaulted and abused him in filthy language and
committed theft of money and valuable documents of the
school. The Police treating the complaint of the appellant
as First Information Report took cognizance of an offence
under Sections 147, 448 and
722
379 I.P.C. and registered it. A warrant of arrest was issued
against Satya Narayan Pathak and others. Satya Narayan
Pathak attended the Court on 21-5-1970 and 21-7-1970 the
dates fixed for submission of the Police report. The Police
Officer who investigated the case on finding no evidence
against Satya Narayan Pathak and others, named as accused,
submitted a final report and the magistrate agreeing with
the report discharged all the accused.
As Satya Narayan Pathak felt that the appellant
instituted criminal proceedings with intent to cause injury
to him and others, for offences under Sections 147, 448 and
379 knowing that there was no just or lawful ground and had
caused pecuniary loss and agony to him, he preferred a
complaint against the appellant for offences under Sections
211 and 182 of the I.P.C. on 20th October, 1970. The learned
Magistrate took cognizance of the case and summoned the
appellant under Section 211 of the Indian Penal Code. fixing
10th December, 1970 for appearance of the appellant. On 16th
November, 1970 the appellant appeared in court and was
released on bail. The appellant moved the High Court of
Calcutta for quashing the proceeding of the Magistrate on
the ground that the cognizance taken by the Magistrate was
bad and without jurisdiction for non-compliance of the
provisions of Section 195(1) (b) of Criminal Procedure Code.
The learned Judge refused to quash the proceedings and
discharge the accused, by judgment dated 18th August, 1971.
Against the order of the Single Judge of the High Court, the
present appeal to this Court has been filed.
The main ground of attack in this appeal is that the
High Court failed to appreciate the meaning of the words “in
relation to any proceedings in any court” in Section 195 (1)
(b) of the Code of Criminal Procedure. It is submitted that
when a final report was submitted by the Police under
Section 173 of Criminal Procedure Code and the Magistrate
passed an order it would be a judicial order and the bar
under Section 195 (1) (b) would be attracted.
The question that arises for consideration is whether
on the facts of the case the bar against taking cognizance
in Section 195(1)(b) is attracted. Section 195(1)(b) so far
as it is relevant for the purpose of this case may be
extracted:
“195(1) No court shall take cognizance
(a) ……. …….
(b) of any offence punishable under any of
the following sections of the same Code,
namely, sections
723
193, 194, 196, 195, 199, 200, 205, 206,
207, 208, 209, 210, 211 and 228, when
such offence is alleged to have been
committed in, or in relation to, any
proceeding in any Court, except on the
complaint in writing of such Court or of
some other Court to which such Court is
subordinate; or
(c) ……………
(2) In clauses (b) and (c) of sub-section (1),
the term “Court” (includes) Civil, Revenue or
Criminal Court, but does not include a
Registrar or Sub-Registrar under the Indian
Registration Act, 1877.
While Section 190 of the Criminal Procedure Code
enumerates the conditions requisite for initiation of
proceedings, Section 195 bars taking cognizance of certain
offences except on complaint by authorities specified in the
Section. Section 195(1) (a) requires that the complaint
should be by a public servant if the offences complained of
are under Sections 172 to 188 of the Indian Penal Code. Sub-
section (1)(b) refers to offences under Sections 193, 194,
195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and
228 and requires the complaint in writing of the Court
before whom the offence is alleged to have been committed in
or in relation to any proceeding in any Court. Sub-section
(c) relates to offences under Sections 463, 471, 475 or 476
when the offence is committed by a party to any proceeding
in any Court in respect of a document produced or given in
evidence in such proceeding a complaint in writing by the
court is required. Sections 172 to 190 of the Indian Penal
Code deal with offences constituting contempt of lawful
authority of public servants. The bar to taking cognizance
of offences under Sections 172 to 188 except on a complaint
by the public servant is laid down in Section 195(1) (a) of
the Code of Criminal Procedure. Chapter XI, of the Indian
Penal Code relates to false evidence and offences against
public justice. The cases of offence such as under Section
463, 471, 475 or 476 alleged to have been committed by a
party in a proceeding in any court in respect of a document
produced or given in evidence in such proceeding, the
complaint in writing of such court is required. The policy
behind the bar for institution of criminal proceedings by a
private party is that when offences are committed against
lawful authority or false evidence is given or offence
committed against public justice, it should be the concerned
authority that should prefer a complaint and no one else.
724
In this appeal we are concerned with the question
whether the offence under Section 211 I.P.C. is “committed
in or in relation to any proceeding in any court”. Before I
deal with the question whether the offence is committed in
or in relation to any proceeding in any court, I have
determined the meaning of the word ‘court’ for the purpose
of this Section. Sub-section (2) to Section 195 states that
in clauses (b) and (c) of sub-section (1), the term “Court
includes a Civil, Revenue or Criminal Court, but does not
include a Registrar or Sub-Registrar under the Indian
Registration Act, 1877. It may be noted that the word
‘includes’ was introduced by an amendment to sub-clause (b)
Act 18 of 1923 instead of the word “means”. In the Criminal
Procedure Code 1974 the word ‘means’ has been introduced in
the place of ‘includes’. To some extent the use of the word
‘includes’ may widen the scope of the definition. In
Halsbury’s Laws of England, third edition, volume 9 at page
342, the meaning of court is given. At page 343 it is
stated: “many bodies are not courts, although they have to
decide questions, and in so doing have to act judicially in
the sense that the proceedings must be conducted with
fairness and impartiality”. Lord Sankley in Shell Co. of
Australia Ltd. vs. Federal Commissioner of Taxation has
enumerated some negative propositions as to when a Tribunal
is not a court. The learned Judge observed “The authorities
are clear to show that there are Tribunals with many of the
trappings of a court which nevertheless are not courts in
the strict sense of exercising judicial power”. In
enumerating the propositions Lord Sankey observed:
“In that connection it may be useful to enumerate
some negative propositions on this subject: (1) A
tribunal is not necessarily a Court in this strict
sense because it gives a final decision. (2) Nor
because it hears witnesses on oath. (3) Nor because two
or more contending parties appear before it between
whom it has to decide. (4) Nor because it gives
decisions which affect the rights of subjects. (5) Nor
because there is an appeal to a Court. (6) Nor because
it is a body to which a matter is referred by another
body”.
In enumerating the negative propositions the learned
Judge relied on the decision in Rex. vs. Electricity
Commissioners.
In Shri Virinder Kumar Satyawadi vs. The State of
Punjab. Venkatarama Ayyar, J. speaking for this Court quoted
with approval the decision in Shell Co. of Australia (supra)
and observed that the dis-
725
tinction between Courts and tribunals exercising quasi-
judicial functions is well established, though whether an
authority constituted by a particular enactment falls within
one category or the other may, on the provisions of that
enactment, be open to argument. After referring to the
various decisions, the learned Judge observed “it may be
stated broadly that what distinguishes a Court from a quasi-
judicial tribunal is that it is charged with a duty to
decide disputes in a judicial manner and declare the rights
of parties in a definitive judgment. To decide in a judicial
manner involves that the parties are entitled as a matter of
right to be heard in support of their claim and to adduce
evidence in proof of it. It also imparts an obligation on
the part of the authority to decide the matter on a
consideration of the evidence adduced and in accordance with
law.
This view was accepted by the Supreme Court in Smt.
Ujjam Bai v. State of Uttar Pradesh where Justice
Hidayatullah observed that though the taxing authorities
follow a pattern of action which is considered judicial,
they are not converted into courts of civil judicature and
they still remain instrumentalities of the State and are
within the definition of the State.
The answer to the question as to what is ‘court’ in the
Criminal Procedure Code is not free from difficulty for in
many places the word Magistrate as well as court is used in
identical situations. Section 6 of the Criminal Procedure
Code states that besides the High Courts and the Courts
constituted under any law other than this Code for the time
being in force there should be five classes of Criminal
Courts in India, namely: (i) Courts of Sessions; (ii)
Presidency Magistrate, (iii) Magistrates of the first class
(iv) Magistrates of the second class, (v) Magistrates of the
third class. Criminal courts according to this section
therefore, consist of courts specified besides the High
Court and courts that are constituted under any other law
other than Criminal Procedure Code. The Code of Criminal
Procedure provides not merely judicial enquiry into or trial
of alleged offences but also for prior investigation
thereof. Section 5 of the Code provides that all offences
under Indian Penal Code shall be investigated, inquired into
and tried and otherwise dealt with in accordance with the
provisions hereinafter contained. For the purposes of
investigation offences are divided into two categories
‘cognizable’ and non-cognizable. When information of the
commission of a cognizable offence is received or such
commission is suspected, the appropriate police officer has
the authority to enter on investigation.
726
In case of non-cognizable offence the officer shall not
investigate without the order of a competent Magistrate.
According to scheme of the Code investigation is preliminary
to a case being put up for trial for a cognizable offence.
Investigation starts on an information relating to
commission of an offence given to an officer in-charge of
Police Station and recorded under Section 154 of the Code.
Investigation consists generally of various steps, namely
proceeding to the spot-ascertainment of facts and
circumstances of the case, discovery and arrest of suspected
offender, collection of evidence relating to the commission
of the offence which may consist of examination of various
persons including the accused, and the reduction of the
statement into writing such as places and seizure of things
and formation of opinion as to whether on material collected
there is a case to place the accused before the Magistrate
for trial and filing of the charge-sheet under Section 173
of the Criminal Procedure Code. After the investigation is
completed and a chargesheet is filed under Section 173 of
the Criminal Procedure Code the question of taking
cognizance arises. Section 190 of the Criminal Procedure
Code lays down conditions necessary for initiation of
proceedings. It provides for that any Presidency Magistrate,
District Magistrate or Sub-Divisional Magistrate or any
other Magistrate specially empowered in this behalf may take
cognizance of any offence.
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a report in writing of such facts made
by any police officer; and
(c) upon information received from any person
other than a police-officer or upon his own
knowledge or suspicion, that such offence has
been committed.
One mode of taking cognizance by the Magistrate is upon
a report in writing of such facts made by any police
officer. This stage is reached when the police officer
submits a report under Section 173. When the Police Officer
upon investigation forms an opinion that there is sufficient
evidence or reasonable ground he shall forward the case to
the Magistrate empowered to take cognizance of the offence
upon a Police report. Under Section 190 of the Criminal
Procedure Code, if the Magistrate to whom the report is sent
by the Police Officer, agrees with the opinion of the police
officer, he proceeds to take cognizance, and issues process
under Section 204. The judicial opinion is unanimous that
when once Magistrate taking cognizance of an offence finds
that there is sufficient ground for proceeding and issues
727
summons or a warrant as the case may be, he takes
cognizance, and the trial begins, and further proceedings
will be undoubtedly before a criminal court.
In Jamuna Singh and others v. Bhadai Sah, Das Gupta, J.
observed “The Code does not contain any definition of the
words ‘institution of a case’. It is clear, however, and
indeed not disputed, that a case can be said to be
instituted in a court only when the court takes cognizance
of the offence alleged therein.” When once this stage is
reached the requirement of Section 211 of the Indian Penal
Code “institutes or causes to be instituted any criminal
proceeding” is satisfied. The second part of Section 211
I.P.C. refers to falsely charging a person with having
committed an offence. A person falsely charging another of a
cognizable offence before a police officer will come within
the mischief of the second part of the Section.
The crucial question that arises in this case is
whether it can be said that when a person falsely charges
another person of a cognizable offence before a Police
Officer and when the Police Officer upon investigation finds
that there is no sufficient evidence or reasonable ground
for suspicion to justify the forwarding of the accused to
the Magistrate under Section 169 and the Magistrate agrees
with him, an offence under Section 211 is committed in or in
relation of any proceeding in any court’. It is settled law
that when a Magistrate applies his mind under Chapter XVI
that is on complaints, he must be held to have taken
cognizance of the offence mentioned in the complaint but
when he applies his mind not for such purpose but for
purpose of ordering investigation under Section 156 (3) or
issues a search warrant for the purpose of investigation, he
cannot be said to have taken cognizance of any offence vide
R. R. Chari v. State of U.P. and in Gopal Das v. State of
Assam. When the Magistrate receives a report under Section
169 of the Criminal Procedure Code that there is not
sufficient evidence or reasonable ground for suspicion and
agrees with it, he may be doing so in exercise of his
judicial function but the question is whether he is acting
as a court.
In Abhinandan Jha & Ors. v. Dinesh Mishra this Court
has pointed out the difference between the report by the
police filed under Section 170 of the Criminal Procedure
Code which is referred to as a charge-sheet and a report
sent under Section 169 which is termed variously in
different States as either ‘referred charge’, ‘final report’
or
728
summary. This court observed that when the police submitted
a report that no case has been made out for sending up
accused for trial it is not open to the Magistrate to direct
the police officer to file a chargesheet. In such
circumstances the Magistrate is not powerless as it is open
to him to take cognizance of an offence on the report
submitted by the Police under Section 190(1)(c) of the
Criminal Procedure Code. Dealing with the position of the
Magistrate when a report is submitted by the police that no
case is made out for sending a case for trial the court
observed that it is open to the magistrate to agree with the
report and close the proceedings. Equally it will be open to
the Magistrate if he takes a different view to give
directions to the police under Section 163(1) to make
further investigations. After receiving a report from the
police on further investigation if the Magistrate forms an
opinion on the fact that it constitutes an offence he may
take cognizance of an offence under Section 190(1) (c)
notwithstanding the opinion of the police expressed in final
report. This court held in conclusion that there is no power
expressly or impliedly conferred on the Magistrate under the
Code to call upon the police to submit a charge-sheet when
they have sent a report under Section 169 of the Code that
there is no case made out for sending the case for trial.
The same view is expressed in the decision in Kamla Prasad
Singh v. Hari Nath Singh and another. In R. N. Chatterji v.
Havildar Kuer Singh, A. N. Ray J. as he then was, followed
the decision in Abhinandan Jha & Ors. v. Dinesh Mishra
(supra) and held that the provisions of the Criminal
Procedure Code do not empower the Magistrate to direct the
police officer to submit a charge-sheet but if he is of the
opinion that the repot submitted by the police requires
further investigation, the Magistrate may order
investigation, under Section 163 of the Criminal Procedure
Code. It was held that directing further enquiry is entirely
different from asking police to submit a charge-sheet. The
only source open for the Magistrate if he is not satisfied
with the police report under Section 169 is to take
cognizance of an offence under Section 190(1) (c) of the
Criminal Procedure Code. It may be noted that in M. L. Sethi
v. R. P. Kapur & Anr., it was held that if the Magistrate
disagrees with the opinion of the police he may proceed to
take cognizance on the facts stated in the police under
Section 190(1) (b).
It is clear that when a Magistrate applies his mind to
the contents of a complaint before him for the purpose of
proceeding under Section
729
200 and the other provisions of the Code following it, he is
taking cognizance of an offence as held by five judges Bench
decision of this Court in Mowu v. The Superintendent,
Special Jail, Nowgong, Assam and Others. The position
regarding the case in which Magistrate accepts a report
under Section 169 Criminal Procedure Code is different. On
an analysis of the various sections, it appears that a
report under Section 169 of the Cr. P. C. and the magistrate
agreeing with it, are proceedings under Chapter XIV which
relates to information to the police and their power to
investigate. The Chapter provides for supervision by the
Magistrates of the investigation by the police. It has been
laid down that Magistrate has no option except to agree with
the report of the Police Officer unless he proceeds to take
cognizance of the offence under Section 190(1) (c). Though
the Magistrate in deciding whether to accept the report or
not may be exercising his judicial mind, it cannot be said
that he is acting as a court. The Magistrate acting at this
stage cannot be said to fulfil the positive requirements
enumerated by Venkatarama Ayyar, J. in Shri Virinder Kumar
Satvawadi v. The State of Punjab (supra). To be classified
as court it must be charged with a duty to decide disputes
in a judicial manner and declare the rights of parties in a
definitive judgment and to decide in a judicial manner. It
involves that the parties are entitled as a matter of right
to be heard in support of their claim and to adduce evidence
in proof of it and an obligation on the part of the
authority to decide the matter on a consideration of the
evidence adduced and in accordance with law. As pointed out
by Lord Sankey in Shell Co. case (supra) though there may be
some of the trappings of the court the magistrate at this
stage cannot be termed as a court within the provisions of
Section 195(2) Cr. P. C. The magistrate may decide the
question finally which may affect parties but that is not
enough. Even when a tribunal bears witnesses on oath and
decides rights of parties and a right of appeal is provided,
it may not, as observed by Lord Sankey, become a court. Most
of requirements of a court are lacking when the Magistrate
agrees with the report of the police officer under Section
169. At this stage the rights of the parties are not finally
decided as the complainant is entitled to file a complaint
directly to the Magistrate. The persons accused are not
before the Magistrate and neither the complainant nor the
accused are entitled to be heard or to adduce evidence
before the Magistrate at this stage. It cannot be said that
the Magistrate has a duty to decide the matter on a
consideration of the evidence adduced before him.
730
Taking into account the scheme of the Criminal
Procedure Code, the function of the Magistrate in agreeing
with a report under Section 169 can only be said to be in
the course of investigation by the police. In Chapter XIV
which relates to information to the police and their powers
to investigate, the Magistrate having jurisdiction over the
area and empowered to take cognizance is given certain
supervisory powers. Thus the Police Officer incharge of
Police Station is required to refer the informant to the
Magistrate when information as to a non-cognizable offence
is received by him. The Police Officer shall not investigate
a non-cognizable case without the orders of the Magistrate
though the Police Officer is entitled to investigate a
cognizable offence without the order of the Magistrate. The
Magistrate under Section 190 is entitled to order an
investigation into a cognizable offence. Section 157 Cr.
P.C. requires the officer incharge of the Police Station to
send a report to the Magistrate empowered to take cognizance
of the offence of which he has received information. Under
Section 159 Crl.P.C. the Magistrate receiving a report under
Section 157 may proceed or depute any magistrate subordinate
to him to proceed to hold a preliminary inquiry into the
case. Section 164 empowers Presidency Magistrate or any
Magistrate of first-class or any Magistrate of second class
specially empowered by the State Government to record a
statement or confession made to him in the course of an
investigation under this Chapter. When a search is conducted
by a Police Officer, he is required to send copies of the
record to the nearest Magistrate empowered to take
cognizance. Section 167 of the Crl.P.C. requires that when
investigation cannot be completed within 24 hours and when
there are grounds of believing that the accusation or
information is well-founded, the Officer incharge of the
Police Station shall transmit to the nearest Magistrate the
copy of the entries in the diary relating to the case and
forward the accused to such Magistrate. The Magistrate to
whom the accused is forwarded is empowered to authorise the
detention of the accused in such custody as he thinks fit
for a term not exceeding 15 days. If the period is to exceed
15 days he is required to forward the accused to the
Magistrate having jurisdiction. When an investigation is
completed and when the Police Officer is of the opinion that
there is sufficient evidence, he shall forward the accused
to the Magistrate along with his report. The final report of
the Police Officer is to be submitted under Section 173. It
may be noticed that Section 169 does not require the Police
Officer to send a report as he is required under Section 170
when he is of the opinion that there is no sufficient
evidence or reasonable ground of suspicion to justify the
forwarding of the accused to the Magistrate. The only
precaution he has to take is to take steps to ensure the
appearance of
731
the accused in the event of the Magistrate empowered to take
cognizance wants his presence. A perusal of the various
Sections under Chapter XIV shows that the Magistrate is
associated with the investigation by the Police in a
supervisory capacity. It has been laid down that when the
Magistrate applies his mind for ordering an investigation
under Section 156(3) of the Cr.P.C. or for issue of a search
warrant for the purpose of investigation, he cannot be said
to have taken cognizance of the offence. The Magistrate
during this stage functions as a Magistrate during
investigation. As the trial has yet to commence it cannot be
said that he is acting as a court.
Before leaving this aspect of the case I would refer to
some of the decisions which were cited before us on this
point. Strong reliance was placed by the learned counsel for
the appellant on a decision in J. D. Boywalla v. Sorab
Rustomji Engineer. Boywalla, the appellant in the case,
lodged a complaint with the police against the respondent
Sorab Rustomji Engineer for cheating in respect of three
rupees. The police after investigation submitted a report
stating that no offence has been disclosed against him with
a request that he may be discharged and his bail bond
cancelled. On receipt of the report the Magistrate
discharged the accused and cancelled the bail bond. Sorab
Rustomji Engineer, against whom the complaint was filed,
filed a case under Section 211 of the I.P.C. alleging that
the appellant Boywalla instituted criminal proceedings
against him knowing that there is no just or lawful ground
for such proceedings. The appellant contended that it is the
Magistrate that can lodge a complaint under Section 195 (b)
of the Cr.P.C. and that no court shall take cognizance of
the offence punishable under Section 211 of the I.P.C. when
such offence is alleged to have been committed in or in
relation to any proceeding to a court except on a complaint
in writing of such court. John Beaumont Chief Justice held
that in doing what he had done the Magistrate had taken
cognizance of the case and therefore under Section 195(b)
Cr.P.C. it was the Magistrate alone who could lodge a
complaint. Two reasons were given by the Chief Justice. The
second ground with which we are concerned at the moment
deals as to the capacity in which Magistrate acted when he
accepted the police report under Section 169 and discharged
the accused. The Chief Justice expressed that after
considering the report if the Magistrate thinks that there
is no sufficient ground of proceeding he may discharge the
accused and though the Code does not expressly provide there
can be no doubt that when the Magistrate can act upon the
report of the
732
police officer and discharge an accused person without
further inquiry only by acting in his judicial capacity
which should be open to review by the High Court. The
learned Chief Justice proceeded on the basis that before a
magistrate passed orders on the report of the police under
Section 169 he should take cognizance of the offence. The
Chief Justice thus took the view that (1) the Magistrate
before discharging the accused in pursuance of a police
report under Section 169 takes cognizance and (2) acts in
his judicial capacity. While there could be no doubt that
the magistrate is acting judicially, I am unable to hold
that before a magistrate discharges an accused agreeing with
the report of the police under Section 169 Cr. P.C., he
takes cognizance. This Court has held that the stage of
laking cognizance arises only when he acts under Section
190(1) (b). Further this Court has taken the view that if
the magistrate does not agree with a police report under
Section 169 Cr.P.C., he can only proceed under Section
190(1)(c). The facts of the case were the accused was
arrested and later after the order of discharge the bail
bond was cancelled. The circumstances of the arrest of the
accused his being released on bail during investigation and
his discharge after the police report were the reasons for
the learned Chief Justice coming to the conclusion that the
Magistrate was acting in a judicial capacity. The learned
Judge observed “indeed it is a novelty to me to hear it
suggested that there is any authority which can make an
administrative order discharging the arrested person from
judicial capacity”. But as he has pointed out acting in a
judicial capacity alone is not enough. The Supreme Court in
M. L. Sethi’s case (supra) expressed its dissent from the
view taken in Ghulam Rasul v. Emperor where the learned
Judge held that a complaint by criminal court is necessary
when a false report is made in an investigation by the
police. The facts of the case are that Ghulam Rasul made a
report to the police that a certain person stole his watch
from his car. On investigation the police came to the
conclusion that the report was false and that the watch had
been removed by the petitioner himself. The case was
reported to the Magistrate for cancellation. A complaint was
given against Ghulam Rasul for offence under Sections 193
and 211 I.P.C. and the Magistrate took cognizance and
recorded the evidence of the prosecution witnesses and
framed charge against him. Accepting the contention on
behalf of Ghulam Rasul the High Court held that in view of
section 195(1) (b), Criminal Procedure Code, the
Magistrate’s taking cognizance of the offence was illegal.
The Court observed: “I am clear that the words in this sub-
section ‘in relation to any proceeding in any court’ apply
to this case of a false report or a false
733
statement made in an investigation by the police with the
intention that there shall in consequence of this, be a
trial in the Criminal Court”. The facts of the case show
that a report under Section 169, Criminal Procedure Code was
submitted by the police for cancellation and the Magistrate
dropped further proceedings. The Supreme Court referring to
the view of the High Court observed: “He appears to have
held the view that the Magistrate having passed an order of
cancellation, it was necessary that the complaint should be
filed by the Magistrate, because section 195(1)(b) had
become inapplicable. If the learned Judge intended to say
that without any proceeding being taken by the Magistrate in
the case which was investigated by the police it was still
essential that a complaint should be filed by the Magistrate
simply because a subsequent proceeding following the police
investigation was contemplated we consider that his decision
cannot be accepted as correct”. This decision makes it clear
that even though the Magistrate passed an order of
cancellation on the report by the police under section 169
if the Magistrate has not taken any proceeding, a complaint
by the Magistrate is not necessary. The decision of the
Supreme Court covers the facts of the present case so far as
the discharge of the accused on a police report under
section 169, Criminal Procedure Code, is concerned.
Referring to the Bombay decision, the Supreme Court observed
that “the decision of the Bombay High Court in J. D.
Roywalla v. Sorab Rustomji Engineer (supra) is also
inapplicable because in that case also orders were passed by
a Magistrate on the final report made by the police after
investigation of the facts in the report, in respect of
which complaint under section 211 I.P.C. was filed”. In
Sethi’s case (supra) at the stage when the complaint was
filed by the respondent under Section 211 I.P.C., the police
were enquiring into the appellant’s report. When there is no
proceeding pending before any court at the time when the
applicability of section 195(1) (b) is to be determined, a
complaint by the court is not necessary. The decision in
Bombay case is therefore not applicable to the facts in
Sethi’s case as in the Bombay case orders were passed by the
magistrate on the final report of the police.
There is a conflict between various High Courts as to
whether a complaint is necessary when on a police report
under Section 169 the Magistrate does not take any further
action. The Bombay, Saurashtra and Andhra Pradesh High
Courts in 1946 Bombay 7(11), 1952 Saurashtra 67(68) and 1969
A.P. 281 (287) have held that a Magistrate passing an order
on a final report of police under Section 173 referring the
case as false should be deemed to be a Court passing a
judicial order disposing of the information to the police,
and
734
that in such a case, the complaint of the Magistrate is
necessary for the prosecution of the informant under Section
211 of the I.P.C. The Madras, Calcutta and Allahabad High
Courts in A.I.R. 1934 Madras 175, A.I.R. 1948 Allahabad 184
Full Bench and A.I.R. 1916 Calcutta 593 following 1921 Patna
302 and 1917 Calcutta 593 have held the other view. For the
reasons already stated I hold that when no further
proceedings are taken by the Magistrate on receipt of a
police report under Section 169 there is no proceeding in or
in relation to any court and, therefore, no complaint by the
court is necessary.
The next question which arises in this case is that
whether a complaint by the court is necessary because of the
arrest and release on bail of the accused Satya Narayan
Pathak in consequence of the complaint given by the
appellant. The police after taking cognizance of the
complaint by Kamlapati Trivedi, the appellant in this case,
took cognizance under Sections 147, 448 and 379 I.P.C.,
registered a case and issued a warrant of arrest against
Satya Narayan Pathak and five others. They all surrendered
in court on 6-5-1970 and were released on bail on a bond of
Rs. 200/- each. They attended court on 21-5-1970 and 21-7-
1970 when the police report was expected to be filed. The
High Court found that there was a police investigation and
during investigation Satya Narayan Pathak surrendered before
the Magistrate who released him on bail and police submitted
a final report and the Magistrate discharged him from his
bail bond. On this evidence the High Court came to the
conclusion that the proceedings before the court become a
criminal proceeding only when the court takes cognizance and
not before. On these facts the question arises whether the
proceedings when the accused were released on bail and later
after the receipt of the report from the police they were
discharged, would be in or in relation to a court. It was
submitted that when in pursuance of a complaint the accused
was arrested and remand and bail proceedings were
subsequently taken before a Magistrate in connection with
the report to the police, they were proceedings in court and
a complaint by the court was necessary. In support of the
proposition a decision in Badri v. State was relied upon. In
that case the Allahabad High Court held that an offence
under section 211, Indian Penal Code, alleged to have been
committed by the appellant by making a false report against
the complainant and others to the police, was an offence in
relation to the remand proceedings and the bail proceedings
because those proceedings were a direct consequence of the
making of the report and the subsequent arrest and,
therefore, the case is governed by section 195(1)(b) of Code
of
735
Criminal Procedure. The Supreme Court in Sethi’s case
(supra) at page 538 did not consider it necessary to express
any opinion whether remand and bail proceedings before the
Magistrate can be held to be proceedings in a court nor did
they consider the question whether the charge of making a
false report could be rightly held to be in relation to
these proceedings. The position, therefore, is the question
whether remand and bail proceedings before the Magistrate in
pursuance of information given to the police of a cognizable
offence are proceedings in or in relation to a court is left
open.
To determine whether the remand or bail proceedings are
proceedings in a court it is useful to refer again to
Chapter XIV of the Criminal Procedure Code. On a complaint
by an informant relating to a commission of a cognizable
offence the investigation starts. The information may not be
against any person. When an investigation cannot be
completed in 24 hours after the arrest of the accused and
when the officer is of the view that there are grounds for
believing that the accusation or information is well-founded
the officer is required to transmit to the nearest
Magistrate a copy of the entries in the diary and to forward
the accused to the Magistrate. When the accused is produced
the Magistrate is required to act under Section 167(2) of
the Criminal Procedure Code. The Magistrate to whom the
accused is produced can from time to time authorise
detention of accused in such custody as such Magistrate
thinks fit for a term not exceeding 15 days in whole. If he
has not the jurisdiction to try the case or commit it for
trial but considers further detention is necessary, he may
order the accused to be forwarded to a Magistrate having
jurisdiction. We have seen that in investigation by the
police the Magistrate is associated in a supervisory
capacity. The action taken by the Magistrate cannot be taken
to be that of a court for the Magistrate who has no
jurisdiction to try the case has a limited power. Even the
Magistrate who has jurisdiction to try the accused when
acting under the Section is not acting as a court for the
words used are the Magistrate having jurisdiction. The trial
commences only after the offence has been taken cognizance
of. The proceedings under Section 167, is during
investigation. But it has to be noted that when the bail and
remand proceedings are before the Magistrate, he has to act
judicially. If the accused applies for bail the Magistrate
has to act judicially and take into account the facts of the
case before he decides to release the accused on bail or
refuse bail. Chapter XXXIII Cr. P. C. deals with bail.
Section 496 provides as to when bail may be taken of non-
bailable offences. The provisions of Sections 496 and 497
speak of an accused person in custody charged with a non-
bailable offence
736
being produced before court at any stage of the proceedings.
The Section deals with the exercise of the power of a court
at any stage of proceedings when the accused is brought
before a court while in the custody of the police officer.
According to the wording of Section, the bail proceedings
would be before a court even though the accused is produced
while in custody of a police officer. Even though the word
‘court’ is used in Sections 496 and 497, we have to consider
whether proceedings can be said to be taken before a court
as defined in Section 195(2) of Cr. P. C. In deciding the
question we have to bear in mind the restricted meaning
given to the word in the observations of Lord Sankey in
Shell Company’s case reported in Shell Co. of Australia Ltd.
v. Federal Commissioner of Taxation (supra) and the tests
laid down by Venkatarama Ayyar, J. in Shri Virinder Kumar
Satyawadi v. The State of Punjab and Hidayatullah, J. in
Smt. Ujjam Bai v. State of Uttar Pradesh (supra). Though
there may be some trappings of a court and the section
itself mentions the word ‘court’, I feel that the
requirements for being a court for the purpose of Section
195(2) have not been satisfied. The intention of the
legislature in prescribing a bar when an offence under
Chapter XI of I.P.C. is committed, that is, when false
evidence is given or offence against public justice is
committed is that the court should decide whether a
complaint should be given for an offence committed before it
and if satisfied should prefer the complaint itself. Before
a court gives a complaint, it will have to satisfy itself
that a prima facie case is made out and that it is in the
interest of justice that a complaint should be lodged. The
purpose, therefore, is that a private party should not be
permitted to make a complaint regarding offences committed
in or in relation to court proceedings. In an investigation
by the police the complainant is only in the background. He
might not have mentioned the name of any person as being
involved in the crime. Taking all the circumstances into
account, I am, in the absence of the complainant, unable to
hold that remand and bail proceedings before cognizance of
the offence is taken could be held to be proceedings before
a court bearing in mind the restricted meaning given to the
word ‘court’.
The second question is whether the charge of making of
the false report could be rightly held to be in relation to
proceedings in court. When an information is given of a
commission of a cognizable offence, the police register a
case and start investigation. For facilitating the
investigation provision for remand is provided for. If the
investigation is not completed within 24 hours the police
may ask for further remand and the court may grant according
to provisions of section 167 of
737
Criminal Procedure Code. At this stage though the remand and
bail proceedings arise as a consequence of complaint given,
it cannot be said that it is the direct result of a false
report to a court for no one might have been mentioned in
the complaint as a suspect. Further, it will be seen that
the complainant is not entitled to appear in court and
oppose grant of bail. The court dealing with the remand or
bail proceedings cannot be said to fulfil the conditions
laid down by Venkatarama Ayyar as the parties are not
entitled as a matter of right to be heard in support of
their claim and adduce evidence in proof of it.
The Magistrate dealing with remand proceedings or a
bail petition does not hear the complainant. He acts on the
material that is placed before him by the police during
investigation. The complainant has no opportunity of
substantiating or presenting his case before the Magistrate
at this stage. If the action of the Magistrate in agreeing
with the report under section 169 Cr. P.C. and the
proceedings taken during investigation by way of remand or
bail are understood to be proceedings in or in relation to
court a complaint may be preferred by the Magistrate without
giving an opportunity to the complainant to satisfy the
Magistrate about the truth of his case. In this connection,
it is useful to refer to section 476 of the Cr. P. C. The
section provides that when any Civil, Revenue or Criminal
Court is, whether on application made to it in this behalf
or otherwise, of opinion that it is expedient in the
interests of justice that an inquiry should be made into any
offence referred to in section 195, sub-section (1), clause
(b) or clause (c), which appears to have been committed in
or in relation to a proceeding in that Court, such Court
may, after such preliminary inquiry, if any, as it thinks
necessary, record a finding to that effect and make a
complaint thereof in writing signed by the presiding officer
of the Court, and shall forward the same to a Magistrate of
the first class having jurisdiction. Before making a
complaint a preliminary inquiry is contemplated. Normally,
it would mean that the person against whom a complaint is
preferred has an opportunity to show why a complaint should
not be preferred against him. These stages are not reached
in a case when the Magistrate has still to take cognizance
of an offence. The restricted meaning given to the Code in
section 195(2) Cr. P.C. read along with the conditions to be
specified before a complaint is preferred by the court,
inclines me to hold that the proceedings before a Magistrate
in which he agrees with the report by the police under
section 169, Criminal Procedure Code, and the proceedings in
remand or bail applications during investigation will not
amount to proceedings in or in relation to court.
738
In the result I agree with the High Court that there
was no proceeding in or in relation to a court, and,
therefore, section 195(1)(b) of Criminal Procedure Code is
not attracted. The appeal is dismissed.
KOSHAL, J. I have had the advantage of going through
the judgment prepared by my learned brother, Kailasam, J.
Having given it my best consideration, I regret that I have
to differ with him.
2. The facts giving rise to this appeal lie in a narrow
compass and may be stated in brief. The appellant before us
is one Kamlapati Trivedi (hereinafter called Trivedi) on
whose complaint a case was registered under sections 147,
448 and 379 of the Indian Penal Code at the Bally Police
Station on the 18th April, 1970 against six persons
including one Satyanarayan Pathak (called Pathak
hereinafter). Warrants were issued for the arrest of the
accused, all of whom surrendered on the 6th of May, 1970 in
the Court of the Sub-Divisional Judicial Magistrate, Howrah
(referred to later herein as SDJM) who who was the
magistrate having jurisdiction and who passed an order
releasing them on bail.
The police held an investigation culminating in a
report dated the 25th of July, 1970 which was submitted to
the SDJM under section 173 of the Code of Criminal
Procedure, 1898 (the Code, for short). The contents of the
report made out the complaint to be false and included a
prayer that the accused “may be released from the charge”.
On the 31st of July, 1970 the SDJM, agreeing with the
report, passed an order discharging the accused.
On the 20th of October, 1970 Pathak filed a complaint
before the SDJM accusing Trivedi of the commission of
offences under sections 211 and 182 of the Indian Penal Code
by reason of the latter having lodged with the police the
false complaint dated the 18th of April, 1970. Trivedi
appeared in the Court of the SDJM on the 16th of November,
1970 in response to a summons issued by the latter only in
respect of an offence under section 211 of the Indian Penal
Code and was allowed a fortnight to furnish security while
the case itself was adjourned to the 10th of December, 1970.
It was then that Trivedi presented a petition dated the
23rd December, 1970 to the High Court at Calcutta praying
that the proceedings pending against him before the SDJM be
quashed inasmuch as the latter was debarred from taking
cognizance of the offence under section 211 of the Indian
Penal Code in the absence of a complaint in writing of the
SDJM himself in view of the provisions of clause (b) of sub-
section (1) of section 195 of the Code. Sub-sections (1) and
(2) of that section may be reproduced here for ready
reference:
739
195. (1) No Court shall take cognizance-
(a) of any offence punishable under sections 172
to 188 of the Indian Penal Code, except on the
complaint in writing of the public servant concerned,
or of some other public servant to whom he is
subordinate;
(b) of any offence punishable under any of the
following sections of the same Code, namely, sections
193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
210, 211 and 228, when such offence is alleged to have
been committed in, or in relation to, any proceeding in
any Court, except on the complaint in writing of such
Court or of some other Court to which such Court is
sub-ordinate; or
(c) of any offence described in section 463 or
punishable under section 471, section 475 or section
476 of the same Code, when such offence is alleged to
have been committed by a party to any proceeding in any
Court in respect of a document produced or given in
evidence in such proceeding, except on the complaint in
writing of such Court, or of some other Court to which
such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (1), the
term “Court” includes a Civil, Revenue, or Criminal
Court, but does not include a Registrar or sub-
Registrar under the Indian Registration Act, 1977.”
It was argued before the High Court that part of the
proceedings which started with the registration of the case
by the police on the 18th of April, 1970 at the instance of
Trivedi and culminated in the order dated the 31st of July,
1970 discharging Pathak and his five co-accused constituted
proceedings before a Court, that the offence under section
211 of the Indian Penal Code attributed to Trivedi was
committed in or, in any case, in relation to such part and
therefore the case against Trivedi fell within the ambit of
clause (b) above extracted. The argument did not find favour
with the High Court and the learned Single Judge before whom
it was made rejected it with the following observations:
“The police submitted a final report and so the
Magistrate discharged him from his bail bond but there was
no criminal proceeding before the Court against
Satyanarayan. The proceeding before the Court becomes a
criminal proceeding only when a Court takes cognizance and
not before. Whatever the view of the other High Courts
740
may be, the consistent view of this High Court is that so
long as cognizance is not taken it cannot be said that there
was a proceeding pending in the Court in respect of that
offence and since no proceeding was pending before the Court
section 195 (1)(b) of the Code is not attracted.”
It is against the order of the High Court (which is
dated the 18th of August, 1971) that Trivedi has instituted
this appeal by special leave.
3. Before us the argument which was put forward on
behalf of Trivedi for the consideration of the High Court
has been repeated and it has been urged strenuously by his
learned counsel that in so far as the SDJM passed an order
on the 6th of May, 1970 releasing him on bail and then
another on the 31st of July, 1970 discharging him, the SDJM
acted judicially and therefore as a Court, that it cannot
but be held that these orders were passed in proceedings in
relation to which the offence under section 211 of the
Indian Penal Code was alleged to have been committed and
that consequently the SDJM had no jurisdiction to take
cognizance of that offence.
4. The points requiring determination therefore are:
(a) Whether the SDJM acted as a Court when he
passed the orders dated the 6th of May, 1970 and the
31st of July, 1970 or any of them?
(b) If the answer to question (a) is in the
affirmative, whether the offence under section 211 of
the Indian Penal Code attributed to Trivedi could be
regarded as having been committed in relation to the
proceedings culminating in either or both of the said
orders?
5. In finding an answer to question (a) I attach quite
some importance to the provision of sections 6, 496 and 497
of the Code. These sections are extracted below:
“6. Besides the High Court and the Courts
constituted under any law other than this Code for the
time being in force, there shall be five classes of
Criminal Courts in India, namely:-
I. Courts of Session:
II. Presidency Magistrates:
III. Magistrates of the first class:
IV. Magistrates of the second class:
V. Magistrates of the third class.”
741
“496. When any person other than a person accused
of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police-
station, or appears or is brought before a Court, and
is prepared at any time while in the custody of such
officer or at any stage of the proceedings before such
Court to give bail, such person shall be released on
bail: Provided that such officer or Court, if he or it
thinks fit, may, instead of taking bail from such
person, discharge him on his executing a bond without
sureties for his appearance as hereinafter provided :
“Provided, further, that nothing in this section
shall be deemed to affect the provisions of section
107, sub-section (4), or section 117, sub-section (3).”
“497. (1) When any person accused of or suspected
of the commission of any non-bailable offence is
arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought
before a Court, he may be released on bail, but he
shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life:
“Provided that the Court may direct that any
person under the age of sixteen years or any woman or
any sick or infirm person accused of such an offence be
released on bail.
(2) If it appears to such officer or Court at any
stage of the investigation, inquiry or trial, as the
case may be, that there are not reasonable grounds for
believing that the accused has committed non-bailable
offence, but that there are sufficient grounds for
further inquiry into his guilt, the accused shall,
pending such inquiry, be released on bail, or, at the
discretion of such officer or Court, on the execution
by him of a bond without sureties for his appearance as
hereinafter provided.
“(3) An officer or a Court releasing any person on
bail under sub-section (1) or sub-section (2) shall
record in writing his or its reason for so doing.
“(3A) If, in any case triable by a Magistrate, the
trial of a person accused of any non-bailable offence
is not concluded within a period of sixty days from the
first date fixed
742
for taking evidence in the case, such person shall, if
he is in custody during the whole of the said period,
be released on bail to the satisfaction of the
Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
“(4) If, at any time, after the conclusion of the trial
of a person accused of a non-bailable offence and
before judgment is delivered the Court is of opinion
that there are reasonable grounds for believing that
the accused is not guilty of any such offence, it shall
release the accused, if he is in custody, on the
execution by him of a bond without sureties for his
appearance to hear judgment delivered.
“(5) A High Court or Court of Sessions and, in the case
of a person released by itself any other Court may
cause any person who has been released under this
section to be arrested and may commit him to custody.”
Magistrates are specifically labelled as Courts by the
statutory provisions of section 6 and therefore have to be
regarded as such. It is no doubt true that the Code assigns
to a Magistrate various functions which do not fall within
the sphere of judicial duties and are, on the other hand,
functions of an executive nature such as the exercise of
supervisory jurisdiction in relation to investigation
carried out by the police or work done on the administrative
side; and it may plausibly be argued that in the discharge
of such functions a Magistrate does not act as a Court. But
then in my opinion a Magistrate cannot but be regarded as a
Court when he acts judicially. This follows from the
provisions of section 6 itself. The Code does not contain
any provision to the effect that no functions performed by a
Magistrate in relation to criminal proceedings whether
handled by him or dealt with by the police would be regarded
as functions performed by a Court unless they are posterior
in point of time to the stage when he acts under section 190
of the Code. On the contrary, sections 496 and 497 which
embrace bail matters specifically describe a Magistrate
while dealing therewith as a Court and these sections
operate fully at all stages of a case including that when
the investigation has just started. There is nothing in the
context in which the word `Court’ is used in these two
sections and section 195 which would provide an indication
that it has been used in two different senses therein, and
in such a situation the legislature must be deemed to have
used it in one and the same sense wherever it occurs in the
Code. While deciding the question of bail, therefore, a
Magistrate must be held to be
743
acting as a Court and not in any other capacity,
irrespective of the stage which the case has reached by
then, that is, whether it is still under investigation by
the police or has progressed to the stage of an inquiry or
trial by the Magistrate. It at once follows that the taking
of cognizance of any offence by a Magistrate under section
190 of the Code is not a condition precedent for him to be
regarded as a Court.
6. Nor do I feel that the opinions expressed by
Halsbury and Lord Sankey lay down any different principle.
Those opinions appear to me to cover only cases of tribunals
which perform quasi-judicial functions but are not
statutorily recognised as `Court’. At page 342 of Volume 9
of Halsbury’s Laws of England (third edition) appears the
following passage in Para 809 :
“Originally the term “court” meant, among other
meanings, the Sovereign’s palace; it has acquired the
meaning of the place where justice is administered and,
further, has come to mean the persons who exercise
judicial functions under authority derived either
immediately or mediately from the Sovereign. All
tribunals, however, are not courts, in the sense in
which the term is here employed, namely, to denote such
tribunals as exercise jurisdiction over persons by
reason of the sanction of the law, and not merely by
reason of voluntary submission to their jurisdiction.
Thus, arbitrators, committees of clubs, and the like,
although they may be tribunals exercising judicial
functions, are not “courts” in this sense of that term.
On the other hand, a tribunal may be a court in the
strict sense of the term although the chief part of its
duties is not judicial. Parliament is a court, its
duties are mainly deliberative and legislative : the
judicial duties are only part of its functions. A
coroner’s court is a true court although its essential
function is investigation.”
In para 810 the learned author proceeds to lay down the
criteria which determine when a tribunal would be regarded
as a Court. In his opinion, the elements to be considered
are :
(1) the requirement for a public hearing, subject
to a power to exclude the public in a proper case, and
(2) a provision that a member of the tribunal
shall not take part in any decision in which he is
personally interested, or unless he has been present
throughout the proceedings.
744
The learned author then quotes Lord Sankey’s
observations in Shell Co. of Australia Ltd. v. Federal
Commissioner of Taxation and then gives numerous examples of
tribunals which are not regarded as Courts. One common
feature of such tribunals is that they are not described as
Courts by statute and are charged with the performance of
administrative or executive functions as distinguished from
judicial functions.
Paragraph 812 on page 344 of the same Volume deals with
the subject of creation of Courts and lays down :
“Courts are created by the authority of the
Sovereign as the fountain of justice. This authority is
exercised either by statute, charter, letters patent,
or Order in Council. In some cases, a court is held by
prescription, as having existed from time immemorial,
with the implication that there was at some time a
grant of the Court by the Sovereign, which has been
lost.
“An Act of Parliament is necessary to create a
court which does not proceed according to the common
law.”
Reference may usefully be made to Section 6 of the same
Chapter in which the above paragraphs occur. That Section is
headed “Magistrates’ Courts”. The relevant part of paragraph
1041 with which the Section begins is to the following
effect:
“A magistrate’s court consists of a justice or
justices of the peace acting under any enactment or by
virtue of his or their commission or under common law
(otherwise than as a court or committee of quarter
sessions or a purely administrative tribunal), or of a
stipendiary magistrate.”
The combined effect of the various paragraphs forming
part of the treatise and noticed above would be that a Court
may be created by a statute and that when such a Court
performs judicial functions, it will be deemed to act as a
Court and further, that Magistrates’ Courts are regarded as
such unless performing executive or administrative
functions. That is how the position stands in England and
there is nothing in the case of Shell Company of Australia
Ltd. v. Federal Commissioner of Taxation (supra) which runs
to the contrary. It may be noted that in that case the
question for decision was as to whether the Board of Review
which had been constituted under the Australian Income Tax
Assessment Act to review the decisions of the Commissioner
of Taxation was or was not a Court and it was in that
context that Lord Sankey expressed his opinion. Obviously he
was
745
not dealing with the functions of a tribunal which had been
statutorily labelled as a Court.
7. What I have said of Lord Sankey’s opinion is true of
the decisions of this Court in Virinder Kumar Satyawadi v.
The State of Punjab and Smt. Ujjam Bai v. State of Uttar
Pradesh. In the former the question for decision was as to
whether a returning officer discharging functions under the
Representation of the People Act, 1951 was a Court and in
answering the same the Court referred to the case of Shell
Company of Australia (supra) and other English and
Australian authorities and then observed :
“It is unnecessary to traverse the same ground
once again. It may be stated broadly that distinguishes
a court from a quasi-judicial tribunal is that it is
charged with a duty to decide disputes in a judicial
manner and declare the rights of parties in a
definitive judgment. To decide in a judicial manner
involves that the parties are entitled as a matter of
right to be heard in support of their claim and to
adduce evidence in proof of it. And it also imports an
obligation on the part of the authority to decide the
matter on a consideration of the evidence adduced and
in accordance with law. When a question therefore
arises as to whether an authority created by an Act is
a Court as distinguished from a quasi-judicial
tribunal, what has to be decided is whether having
regard to the provisions of the Act it possesses all
the attributes of a Court.”
In Ujjam Bai’s case (supra) this Court was resolving a
question as to whether an officer of the income-tax
department was a Court and replied in the negative, broadly
for the reason that even though taxing authorities follow a
pattern of action which is considered judicial, they are not
converted into Courts of civil judicature and that their
actions are executive in nature.
Neither of these cases deals with an authority on which
the status of a Court is conferred by statute, nor with one
forming part of the judiciary, such as a Magistrate in whose
case the opinion of this Court would surely have been
different as is apparent from the judgment of Hidayatullah,
J., in Ujjam Bai’s case (supra) which quotes the following
passage from Gullapalli Nageswara v. State of Andhra Pradesh
746
“The concept of a quasi-judicial act implies that
the act is not wholly judicial, it describes only a
duty cast on the executive body or authority to conform
to norms of judicial procedure in performing some acts
in exercise of its executive power.”
and then proceeds :
“The taxing departments are instrumentalities of
the State. They are not a part of the Legislature; nor
are they a part of the judiciary. Their functions are
the assessment and collection of taxes, and in the
process of assessing taxes they have to follow a
pattern of action, which is considered judicial. They
are not thereby converted into Courts of civil
judicature. They still remain the instrumentalities of
the State and are within the definition of `State’ in
Art. 12. In this view of the matter, their actions must
be regarded, in the ultimate analysis, as executive in
nature, since their determinations result in the demand
of tax which neither the legislature nor the judiciary
can collect. Thus, the actions of these quasi-judicial
bodies may be open to challenge on the ground of breach
of fundamental rights.”
It is thus clear that the source of power exercised by
the authority, that is, whether it is an executive power or
judicial power would make all the difference in the
determination of the question as to whether the authority
acts as a Court or merely as a quasi-judicial tribunal not
functioning as a Court. In this connection a reference may
also be made to section 19 of the Indian Penal Code coupled
with illustration (b) appended thereto and section 20
thereof :
Section 19 :
“The word “Judge” denotes not only every person
who is officially designated as a Judge, but also every
person.
“Who is empowered by law to give, in any legal
proceeding, civil or criminal, a definitive judgment,
or a judgment which, if not appealed against, would be
definitive, or a judgment which if confirmed by some
other authority, would be definitive, or
“who is one of a body of persons, which body of
persons is empowered by law to give such a judgment.”
747
Illustration (b) :
“A Magistrate exercising jurisdiction in respect
of a charge on which he has power to sentence to fine
or imprisonment, with or without appeal, is a Judge.”
Section 20 :
“The words “Court of Justice” denote a Judge who
is empowered by law to act judicially alone, or a body
of Judges which is empowered by law to act judicially
as a body, when such Judge or body of Judges is acting
judicially.”
Although we are not here concerned with the terms
“Judge” and “Court of Justice” properly so-called, the
provisions above extracted do give a definite indication of
the attributes of a Court as used in criminal law generally.
It may be noted that the Code and the Indian Penal Code are
the main statutes operating in India in relation to the
dispensation of criminal justice and may in a sense be
regarded as supplementary to each other, the Code forming
the procedural link of the same chain of which the Indian
Penal Code constitutes the link of substantive law. This
relation between the two enactments is further strengthened
by the provisions contained in sub-section (2) of section 4
(the definition clause) of the Code which runs thus :
“4 (2) : Words which refer to acts done, extend
also to illegal omissions; and
“all words and expressions used herein and defined
in the Indian Penal Code, and not hereinabove defined,
shall be deemed to have the meanings respectively
attributed to them by the Code.”
It is no doubt true that the expression “Court of
Justice” does not appear to have been used in the Code
(although the expression “Judge” does find a place in
section 197 thereof), but then there is no escape from the
conclusion that when a “Judge” (including a Magistrate) who
is empowered to act judicially and does so act constitutes
not merely a Court but a Court of Justice.
8. Now I proceed to examine the relevant provisions
contained in Chapter XIV of the Code which carries the
caption “INFORMATION TO THE POLICE AND THEIR POWERS TO
INVESTIGATE”. It may be stated at once that although the
Chapter is headed as stated, it is not confined to matters
which are strictly concerned with the investigation stage
but also deals with situations which arise after the
investigation has been finalized. Reference may be made in
this behalf to subsection (2) of section 172 of the Code
reads thus :
748
“Any Criminal Court may send for the police-
diaries of a case under inquiry or trial in such Court,
and may use such diaries, not as evidence in the case,
but to aid it in such inquiry or trial. Neither the
accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see
them merely because they are referred to by the Court,
but, if they are used by the police-officer who made
them, to refresh his memory, or if the Court uses them
for the purpose of contradicting such police-officer,
the provisions of the Indian Evidence Act, 1872,
section 161 or section 145, as the case may be, shall
apply.”
The sub-section clearly deals with the use of police-
diaries at an inquiry or trial which a Magistrate holds not
in his administrative or executive capacity but undoubtedly
as a Court. The caption of the Chapter therefore is not
decisive of the question as to whether a particular
provision contained therein is limited to the supervisory
jurisdiction of the Magistrate in relation to the
investigation being conducted by the police or deals with
his judicial functions as a Court.
The contents of sections 169, 170 and 173 of the Code
may now be scrutinised. They are re-produced below :
“169. If, upon an investigation under this
Chapter, it appears to the officer in charge of the
police-station or to the police-officer making the
investigation that there is not sufficient evidence or
reasonable ground of suspicion to justify the
forwarding of the accused to a Magistrate, such officer
shall, if such person is in custody, release him on his
executing a bond, with or without sureties, as such
officer may direct, to appear, if and when so required,
before a Magistrate empowered to take cognizance of the
offence on a police-report and to try the accused or
commit him for trial.”
“170. (1) If, upon an investigation under this
Chapter, it appears to the officer in charge of the
police-station that there is sufficient evidence or
reasonable ground as aforesaid, such officer shall
forward the accused under custody to a Magistrate
empowered to take cognizance of the offence upon a
police-report and to try the accused or commit him for
trial or, if the offence is bailable and the accused is
able to give security, shall take security from him for
his appearance before such Magistrate on a day fixed
and for his attendance from day to day before such
Magistrate until otherwise directed.”
749
“(2) When the officer in charge of a police-
station forwards an accused person to a Magistrate or
take security for his appearance before such Magistrate
under this section, he shall send to such Magistrate
any weapon or other article, which it may be necessary
to produce before him, and shall require the
complainant (if any) and so many of the persons who
appear to such officer to be acquainted with the
circumstances of the case as he may think necessary, to
execute a bond to appear before the Magistrate as
thereby directed and prosecute or give evidence (as the
case may be) in the matter of the charge against the
accused.
“(3) If the Court of the District Magistrate or
Sub-divisional Magistrate is mentioned in the bond,
such Court shall be held to include any Court to which
such Magistrate may refer the case for inquiry or
trial, provided reasonable notice of such reference is
given to such complainant or persons.”
“173. (1) : Every investigation under this Chapter
shall be completed without unnecessary delay, and, as
soon as it is completed, the officer in charge of the
police-station shall-
“(a) forward to a Magistrate empowered to take
cognizance of the offence on a police-report a report,
in the form prescribed by the State Government, setting
forth the names of the parties, the nature of the
information and the names of the persons who appear to
be acquainted with the circumstances of the case, and
stating whether the accused (if arrested) has been
forwarded in custody, or has been released on his bond
and, if so, whether with or without sureties, and
“(b) communicate, in such manner as may be
prescribed by the State Government, the action taken by
him to the person, if any, by whom the information
relating to the commission of the offence was first
given.
“(2) Where a superior officer of police has been
appointed under section 158, the report shall, in any
case in which the State Government by general or
special order so directs, be submitted through that
officer, and he may, pending the orders of the
Magistrate, direct the officer in charge of the police-
station to make further investigation.
“(3) Whenever it appears from a report forwarded
under this section that the accused has been released
on his bond,
750
the Magistrate shall make such order for the discharge
of such bond or otherwise as he thinks fit.
“(4) After forwarding a report under this section
the officer in charge of the police-station shall,
before the commencement of the inquiry or trial,
furnish or cause to be furnished to the accused, free
of cost, a copy of the report forwarded under sub-
section (1) and of the first information report
recorded under section 154 and all other documents or
relevant extracts thereof, on which the prosecution
proposes to rely, including the statements and
confessions, if any recorded under section 164 and the
statements recorded under sub-section (3) of section
161 of all the persons whom the prosecution proposes to
examine as its witnesses.
“(5) Notwithstanding anything contained in sub-
section (4), if the police-officer is of opinion that
any part of any statement recorded under sub-section
(3) of section 161 is not relevant to the subject-
matter of the inquiry or trial or that its disclosure
to the accused is not essential in the interests of
justice and is inexpedient in the public interests, he
shall exclude such part from the copy of the statement
furnished to the accused and in such a case, he shall
make a report to the Magistrate stating his reasons for
excluding such part :
“Provided, that at the commencement of the inquiry
or trial, the Magistrate shall, after perusing the part
so excluded and considering the report of the police-
officer, pass such orders as he thinks fit and if he so
directs, a copy of the part so excluded or such portion
thereof, as he thinks proper, shall be furnished to the
accused.”
Section 169 and 170 do not talk of the submission of
any report by the police to the Magistrate, although they do
state what the police has to do short of such submission
when it finds at the conclusion of the investigation (1)
that there is not sufficient evidence or reasonable ground
of suspicion to justify the forwarding of the accused to a
Magistrate (section 169) (2) that there is sufficient
evidence or reasonable ground as aforesaid (section 170). In
either case the final report of the police is to be
submitted to the Magistrate under sub-section (1) of section
173. Sub-section (3) of that section further provides that
in the case of a report by the police that the accused has
been released on his bond (which is the situation envisaged
by section 169), the
751
Magistrate shall make “such order for the discharge of such
bond or otherwise as he thinks fit”. Now what are the
courses open to the Magistrate in such a situation? He may,
as held by this Court in Abhinandan Jha & Others v. Dinesh
Mishra.
(1) agree with the report of the police and file
the proceedings, or
(2) not agree with the police report and (a)
order further investigation, or (b) hold that
the evidence is sufficient to justify the
forwarding of the accused to the Magistrate
and take cognizance of the offence complained
of.
The appropriate course has to be decided upon after a
consideration of the report and the application of the mind
of the Magistrate to the contents thereof. But then the
problem to be solved is whether the order passed by the
Magistrate pertains to his executive or judicial capacity.
In my opinion, the only order which can be regarded as
having been passed by the Magistrate in his capacity as the
supervisory authority in relation to the investigation
carried out by the police is the one covered by the course 2
(a). The order passed by the Magistrate in each of the other
two courses, that is, (1) and 2(b), follows a conclusion of
the investigation and is a judicial order determining the
rights of the parties (the State on the one hand and the
accused on the other) after the application of his mind. And
if that be so, the order passed by the Magistrate in the
proceeding before us must be characterised as a judicial act
and therefore as one performed in his capacity as a Court.
9. The reasons which have weighed with me in coming to
the conclusion arrived at in the last paragraph are equally
applicable to the consideration of the question whether an
order of bail passed by a Magistrate calls for the
performance by him of his judicial functions. Such an order
also decides the rights of the State and the accused and is
made by the Magistrate after the application of his mind and
therefore in the discharge of his judicial duties, which
factor constitutes it an act of a Court.
10. For a tribunal to be acting as a Court, it is not
necessary that the parties must have a right of hearing or
adducing evidence at every stage of the proceedings before
it. This is specially true of Courts constituted as such by
the legislature. Reference may here be made to interlocutory
orders issuing temporary injunctions or staying
752
proceedings in a subordinate Court or dispossession of a
party by Civil Courts at the instance of a plaintiff or
appellant and in the absence of the opposite party which
comes into the picture later on after it is served with a
notice. And even subsequent to the appearance of the party
adversely affected, the existence of a prima facie case
would till the scales against it so that the order earlier
passed in favour of the other party is confirmed till the
conclusion of the case on merits, even though the case may
finally be decided otherwise and the interlocutory order
found to be unjust and then vacated. And yet it can hardly
be argued that the presiding officer of the Court does not
act as a Court when passing such an order. Really, the right
to adduce evidence and be heard is to be taken into
consideration as being available at one stage of the
proceedings or the other. Thus in the case of an order
passed by a Magistrate under sub-section (3) of section 173
of the Code in agreement with the police report does not
call for any hearing or the production of any evidence on
the part of the accused, as it goes in his favour. If the
Magistrate, on the other hand, disagrees with the report
submitted by the police and takes cognizance of the offence,
the accused comes into the picture and thereafter shall have
the right to be heard and to adduce evidence in support of
his innocence. Viewed in this context, all orders passed by
a Magistrate acting judicially (such as orders of bail and
those passed under subsection (3) of section 173 of the Code
discharging an accused or orders taking cognizance of the
offence complained of) are parts of an integral whole which
may end with a definitive judgment after an inquiry or a
trial, or earlier according to the exigencies of the
situation obtaining at a particular stage, and which
involves, if need be, the adducing of evidence and the
decision of the Magistrate on an appreciation thereof. They
cannot be viewed in isolation and given a character
different from the entire judicial process of which they are
intended to form a part.
11. In the view that I have taken of the matter, I do
not consider it necessary to go into the details of the
conflict of opinion amongst the High Courts in India in
relation there to but I would touch briefly thereupon. In J.
D. Boywalla v. Sorab Rustomji Engineer Beaumont, C. J.
speaking for himself and Macklin, J., emphatically held that
a Magistrate while passing a order releasing an accused
person on bail or discharging him in pursuance of a report
submitted by the police to the effect that the evidence was
insufficient to sustain the charge, acts judicially and
therefore as a Court within the meaning of that term as used
in clause (b) of sub-section (1) of section 195 of the Code.
That decision was followed by a Division Bench consis-
753
ting of Shah, C. J., and Baxi, J., in State v. Vipra Khimji
Gangaram in so far as an order discharging an accused person
as aforesaid is concerned. Beaumont, C. J.’s view in regard
to orders of bail was accepted as correct by M. C. Desai,
C.J., and Mishra, J., in Badri v. State.
These three decisions, in my opinion, lay down the
correct law on the point and the view expressed to the
country by the Madras, Calcutta and Patna High Court as also
by a Full Bench of the Allahabad High Court in Hanwant v.
Emperor and by a Full Bench of the Lahore High Court in
Emperor v. Hyat Fateh Din merits rejection for the reasons
stated above.
12. In so far as this Court is concerned, the point
debated before us has not been the subject matter of any
decision and was expressly left open in M. L. Sethi v. R. P.
Kapur & Anr. In that case the appellant had lodged a report
with the police charging the respondents with certain
cognizable offences. While the police were investigating
into the report, the respondent filed a complaint in the
Magistrate’s Court alleging that the appellant had committed
an offence under section 211 of the Indian Penal Code by
falsely charging the respondent with having committed an
offence. The Magistrate took cognizance of the respondent’s
complaint under section 190 of the Code. At that stage there
were no proceedings in any Court nor any order by any
Magistrate for arrest, remand or bail of the respondent in
connection with the appellant’s report to the police. Later,
however, the police arrested the respondent in connection
with the appellant’s report and filed a charge sheet against
him, but the case ended in an order of discharge.
Thereafter, the appellant raised an objection in the Court
of the Magistrate to the effect that cognizance of the
offence under section 211 of the Indian Penal Code could not
be taken in view of the provisions of clause (b) of sub-
section (1) of section 195 of the Code. The Magistrate
rejected the contention and the order was confirmed by the
Sessions Court and the High Court. While dismissing the
appeal, this Court held that the complaint filed by the
respondent was competent and that clause (b) aforesaid did
not stand in the way of the Magistrate taking cognizance, in
as much as, there had been no proceedings of any kind
whatsoever before the Magistrate in relation to the report
lodged by the appellant with the police till the complaint
was
754
filed by the respondent. Reliance was placed on behalf of
the appellant in that case on Badri vs. State (supra) and J.
D. Boywalla v. Sorab Rustomji Engineer (supra) but the
points decided in those cases were held not to arise in the
case then before the Court which made the following
observations in relation thereto :
“In the case of Badri vs. State, where an offence
under section 211, I.P.C., was alleged to have been
committed by the person making a false report against
the complainant and others to the police, it was held
that it was an offence in relation to the remand
proceedings and the bail proceedings which were
subsequently taken before a Magistrate in connection
with that report to the police, and, therefore, the
case was governed by section 195 (1) (b), Cr. P. C.,
and no cognizance of the offence could be taken except
on a complaint by the Magistrate who held the remand
and bail proceedings. We do not consider it necessary
to express any opinion whether the remand and bail
proceedings before Magistrate could be held to be
proceedings in a Court, nor need we consider the
question whether the charge of making of the false
report could be rightly held to be in relation to those
proceedings. That aspect need not detain us, because,
in the case before us, the facts are different. The
complaint for the offence under section 211, I.P.C. was
taken cognizance of by the Judicial Magistrate at
Chandigarh at a stage when there had been no
proceedings for arrest, remand or bail of the
respondent and the case was still entirely in the hands
of the police. There was, in fact, no order by any
Magistrate in the proceedings being taken by the police
on the report lodged by the appellant up to the stage
when the question of applying the provisions of section
195 (1)(b), Cr. P.C. arose. These two cases are also,
therefore, of no assistance to the appellant. On the
same ground, the decision of the Bombay High Court, in
J. D. Boywalla vs. Sorab Rustomhi Engineer is also
inapplicable, because in that case also orders were
passed by a Magistrate on the final report made by the
police after investigation of the facts in the report
in respect of which the complaint under section 211,
I.P.C. was sought to be filed.”
13. In another part of the judgment deciding M. L.
Sethi v. R. P. Kapur (supra) this Court disagreed with the
view expressed in Ghulam
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Rasul v. Emperor wherein Blacker, J., made the following
observation :
“I am clear that the words in this sub-section “in
relation to any proceedings in any Court” apply to the
case of a false report or a false statement made an
investigation by the police with the intention that
there shall in consequence of this be a trial in the
criminal Court, and I find support for this view in the
case reported as 1929 Sind 132 (1)”.
This view of Blacker, J., was repelled by this Court
thus :
“The decision in the words in which the learned
Judge expressed himself appears to support the argument
of learned counsel for the appellant in the present
case but we think that very likely in that case, the
learned Judge was influenced by the circumstances that
the case had been reported by the police to the
Magistrate for cancellation. He appears to have held
the view that the Magistrate having passed an order of
cancellation, it was necessary that the complaint
should be filed by the Magistrate, because section 195
(1) (b) had become applicable. If the learned Judge
intended to say that without any proceeding being taken
by the Magistrate in the case which was investigated by
the police, it was still essential that a complaint
should be filed by the Magistrate simply because a
subsequent proceeding following the police
investigation was contemplated, we consider that his
decision cannot be accepted as correct.”
These observations cannot be held to mean that if an
order of cancellation of a case has actually been passed by
a Magistrate in agreement with the report of the police to
the effect that no sufficient evidence was available against
the accused, such order could not be regarded as a judicial
proceeding and the Magistrate passing it could not be given
the status of a Court. This is apparent from the last
sentence of the passage just above extracted which indicates
that all that was meant was that if Blacker, J., meant to
say that even though no proceeding at all had been taken by
the Magistrate, clause (b) of sub-section (1) of section 195
of the Code would be attracted merely for the reason that
the police had held an investigation which would at a later
point of time result in any proceedings before the
Magistrate this Court could not agree with him. Another fact
which may be noted in this connection is that judgment in
Ghulam Rasul vs. Emperor (supra) does not state in
unmistakable terms that any order
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of cancellation of the case was passed by the concerned
Magistrate and all that is mentioned is that the police had
reported the case for “cancellation”, which may well mean
that really no order of cancellation had in fact been made
by the Magistrate.
14. As the order releasing Trivedi on bail and the one
ultimately discharging him of the offence complained of
amount to proceedings before a Court, all that remains to be
seen is whether the offence under section 211 of the Indian
Penal Code which is the subject matter of the complaint
against Trivedi can be said to have been committed “in
relation to” those proceedings. Both the orders resulted
directly from the information lodged by Trivedi with the
police against Pathak and in this situation there is no
getting out of the conclusion that the said offence must be
regarded as one committed in relation to those proceedings.
This requirement of clause (b) aforementioned is also
therefore fully satisfied.
15. For the reasons stated, I hold that the complaint
against Trivedi is in respect of an offence alleged to have
been committed in relation to a proceeding in Court and that
in taking cognizance of it the SDJM acted in contravention
of the bar contained in the said clause (b), as there was no
complaint in writing either of the SDJM or of a superior
Court. In the result, therefore, I accept the appeal and,
setting aside the order of the High Court, quash the
proceedings taken by the SDJM against Trivedi.
ORDER
In accordance with the opinion of the majority, the
appeal is allowed, the order of the High Court is set aside
and the proceedings taken by the Sub-Divisional Judicial
Magistrate against the appellant, Kamlapati Trivedi, are
quashed.
N.V.K. Appeal allowed.
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