PETITIONER: M. L. SETHI Vs. RESPONDENT: R. P. KAPUR & ANR. DATE OF JUDGMENT: 23/09/1966 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. DAYAL, RAGHUBAR CITATION: 1967 AIR 528 1967 SCR (1) 520 CITATOR INFO : F 1969 SC 355 (7) F 1971 SC1708 (12) D 1979 SC 777 (15,18,20,36,37) R 1981 SC 22 (13) ACT: Code of Criminal Procedure (Act 5 of 1898), s. 195(1)(b)- Complaint to Magistrate of offence under s. 211, Indian Penal Code-Cognizance, when barred. HEADNOTE: The appellant lodged a report with the police charging the respondent with certain cognizable offences on 10th December 1958. While the police were investigating into the 'report the respondent filed a complaint in the Magistrate Is Court, on 11th April 1959 alleging that the appellant had committed an offence under s. 211, Indian Penal Code, by falsely charging the respondent with having committed an offence. The Magistrate took cognizance of the respondent's complaint under s. 190 Criminal Procedure 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 appellants report to the police. Later, on 18th July 1959 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 applied to the Magistrate's court praying that the court may not take cognizance of the complaint to the court filed by the respondent against the appellant, on the ground that, cognizance of an offence under s. 211 I.P.C. could not be taken in view of the provisions contained in s. 195(1)(b) Cr.P.C. The magistrate rejected the contention and the order was confirmed by The session court and the high Court. In appeal to this Court, HELD: The complaint filed by the respondent was competent and the Magistrate was not barred from taking cognizance of it by the provisions of s. 195 ( 1) (b) Cr.P.C.; and, in taking cognizance of it he only exercised jurisdiction rightly vested in him. [542 A-B] (i) When a Magistrate is taking cognizance under s. 190 Cr.P.C. he must examine the facts of the complaint before him and determine whether his power of taking cognizance under the section has or has not been taken away under S. 195(1) Cr.P.C. , In the case of an offence under s. 211 I.P.C., s. 195(1)(b), Cr.P.C., provides that no court shall take cognizance of it 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. That is, s. 195(1)(b ) Cr.P.C. bars taking cognizance if all the following circumstances exist, namely, (i) that the offence in respect of which the case is brought falls under s. 211 I.P.C. (ii) that there -should be a proceeding in a court, and (iii) that the allegation should be that the offence under s. 211 I.P.C. was committed in, or in relation to such a proceeding. When examining the question whether there is any proceeding in any court, three situations can be envisaged:(a) There may be no proceeding in any court at all; (b) a.proceeding in a court may actually be pending when cognizance is taken of the offence under S-. 211 I.P.C., and (c) though there may be no proceeding pending in a court, there may have been a proceeding which had already concluded and the offence under s. 211 may 521 be alleged to have been committed in, or in relation to, that proceeding. In cases (b) and (c), the bar to taking cognizance under s. 195(1) (b) Cr.P.C. would come into operation. In case (a), when there is no proceeding pending in any court at all at the time when the applicability of S. 195(1) (b), Cr.P.C. has to be determined, nor has there been any earlier proceeding which may have been concluded.. the sub-,section would not apply, and in such a case, the Magistrate would be competent to take cognizance of the offence under s. 211 I.P.C., if his jurisdiction is invoked in the manner laid down in s. 190 of Criminal Procedure Code. [526 F-G; 527 B, G-H, 528 E-F; 529 C-E, G-H] Caselaw considered. (ii)There is nothing in the language of the sub-section to indicate that theLegislature also intended to lay down this bar if a proceeding in court was still under contemplation and if and when the proceeding is taken it may be found that the offence alleged to have been committed was, in fact, committed in or in relation to, that proceeding. The Magis- trate could not be expected to come to a decision whether any such proceeding in any court was under contemplation, and any interpretation of law which will make its applicability dependent on a future decision to be taken by some person and thus introduce an element of uncertainty, should be avoided. [530 B-F] (iii)At the stage when the complaint was filed by the respondent against the appellant the police were inquiring into the appellant's report. In such a case, there may be no justification for the police to bring a charge of false information being given to them until investigation is ,completed. Similarly, a Magistrate has-no jurisdiction to order a prosecution for making a false complaint, till the complaint was dismissed. But there is no requirement anywhere in law that the person affected by the false charge could not file his complaint in court until the police had decided that the charge is false. [534 F-H; 535 A-B] Queen v. Subanna Goundan, (1862-63) 1 M.H.C.R. 30 and Gati Mandal v. Emperor, 27 Cr. L.J. 1105, referred to. (iv) The mere fact that, on a report being made to the police of a cognizable offence, the proceeding must, at a latter stage., end in a judicial order by the Magistrate, cannot, stand in the way of a private complaint being filed and of cognizance being taken by the court on its basis. The scheme of the provisions relating to investigation in the Criminal Procedure Code, requires that upon the completion of investigation, the investigating officer has to submit a report to the Magistrate under s.173 Cr.P.C. furnishing various details and stating whether it appears to him there is or is not sufficient evidence or reasonable ground for placthe accused on trial. At that stage there may be an intervention by ire Magistrate in his judicial capacity. But until some occasion arises for a Magistrate to make a judicial order in connection with the investi. gation of a cognizable offence by the police, no question can arise of the Magistrate having the power of filing a complaint under s. 195(1)(b) Cr.P.C. [540 DI. G-H; 541 B-C] (v) It is not correct to say that s. 195 Cr.P.C. lays down that the offence& therein referred to shall not be deemed to be any offences at all, except on the complaint of the persons or the courts therein specified. An offence is constituted as soon as it is found that the facts which constitute the offence have been committed by the person -accused of the offence, and it remains an offence whether it is triable by a court or not. [535 G-H] Observations contra in Fakir Mohamed v. Emperor, A.I.R. 1927 Sind 10 overruled. 522 (vi) It was not necessary that the proceeding taken by the police should terminate before the court could competently take cognizance of the complaint filed by the respondent against the appellant. [537 H] (vii) In the case of s. 195(1)(b) there is a limitation that private prosecutions are barred only if the offences mentioned in that sub-section were alleged to have been committed in, or in relation to any proceeding in any court. If the offence was not committed,, in, or in relation to, any proceeding in any court, a private complaint is permissible. [537 D-E] Ramaswami Iyengar v. Panduranga Mudaliar, A.I.R. 1938 Mad. 173, referred to. (viii) It is true that if a private person is allowed to file a complaint that the report to the police against him is false before investigation is corn leted, and the court takes cognizance of it, there may be two trials, in one of which person accused of an offence may be under trial, while in the other, the person who complained to the police may appear as a person accused of an offence under s. 211 I.P.C. But, there is no difficulty in dealing with such a possible anomalous situation, by trying both cases together or one after the other. [541 C-F] JUDGMENT:
CRIMNAL APPELLATE JURISDICTION : Criminal Appeal No. 110 of
1965.
Appeal from the judgment and order dated January 13, 1965 of
the High Court at Allahabad in Criminal Revision No. 1318 of
1964.
Frank Anthony, M. L. Sethi, J. C. Talwar and R. L. Kohli,
for the appellant.
R. P. Kapur, respondent No. 1, in person.
O.P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Bhargava, J. This appeal filed under certificate granted by
the High Court at Allahabad is directed against an order
passed by that Court dismissing a revision application by
which the appellant, M. L. Sethi, desired the vacation of an
order passed by the Sessions Judge of Saharanpur upholding
two orders of the Additional District Magistrate (Judicial),
Saharanpur, dated 6th August, 1963 and 5th October, 1963.
By these orders, the Magistrate dismissed two applications
presented by the appellant for dismissing a complaint
pending before him for commission of offences under sections
21 1, 204 and 385 of the Indian Penal Code. A further
prayer was made for an order by this Court qushing the
proceedings pending in the Court of that Magistrate.
The facts necessary for deciding this appeal may be stated
briefly. on December 10, 1958, the appellant lodged a report
with the Inspector-General of Police, Chandigarh against
R.P. Kapur (hereinafter referred to as “the respondent”) and
his mother-in-law charging them with commission of offences
punishable under sections 420, 109, 114 and 120-B, I.P.C. It
does not appear to be necessary
523
to give the details of the allegations made in that report.
The charge in that First Information Report was based on the
allegation that the respondent and his mother-in-law, by
conspiring together, cheated the appellant and his wife of a
sum of Rs. 20,000/- by persuading the appellant to take a
sale-deed of some land on certain false representations and
on suppression of facts indicating that on the date when the
sale-deed by the respondent’s mother-in-law was executed in
favour of the wife of the appellant, the title of the former
had already been extinguished, as the land had been acquired
by the Government under the Land Acquisition Act. The
offence was registered as a cognizable offence and
investigation was started.
On April 11, 1959, the respondent filed a complaint in the
Court of Judicial Magistrate,’ 1st Class, Chandigarh,
against the appellant for commission of offences under
sections 204, 211 and 385 I.P.C. In this complaint, the
respondent alleged that the land was sold by his mother-in-
law to the appellant’s wife as a favour to the appellant and
that at that time, no misrepresentations at all were made in
respect of any facts. The complaint added that the appellant
was fully aware of the land acquisition proceedings; but
because of fixation of low rate of compensation in the
acquisition proceedings,the appellant suffered a loss of
nearly Rs. 13,000/-. The appellant,being a clever criminal
lawyer, went to the respondent’s mother-in-law, Smt.
Kaushaliya Devi, and demanded the sum of Rs. 13,000/-,and
when she refused, he threatened her with dire consequences
of criminal proceedings against her and her son-in-law,
the respondent.A similar threat of criminal proceedings was
also later given to the respondent himself by the appellant;
and thereafter, the First Information Report was lodged with
the Inspector-General of Police by the appellant on December
10, 1958. The charge in the complaint further was that the
allegations made in the First Information Report by the
appellant were false to his knowledge and were contradicted
by the appellant’s own letters, writings and other
correspondence.It was also stated that the false report to
the police was made with the knowledge and intention of
putting the respondent in fear of ,injury to his fair name
and reputation in service and otherwise and of being put
under arrest and harassment in a criminal trial and thereby
to induce him to deliver to the appellant Rs. 13,000/-
and submit to other terms that the appellant may choose to
impose. The last allegation was that the appellant was
guilty of the offence under s. 204, I.P.C., for secreting
five documents which were enumerated in the complaint, and
this offence was alleged to have been committed, because if
these documents had been presented in time, the Police would
not have entertained the complaint which led to a harassing
investigation against the respondent.
This complaint filed by the respondent against the
appellant,as well as the proceedings instituted by the
Police on the basis of the
524
First Information Report were transferred under the orders
of this Court to the Court of the Additional District
Magistrate, Saharanpur. The case against the respondent and
his mother-in-law based on the First Information Report
ended in an order of discharge passed by the High Court of
Allahabad on December 10, 1962, when the charge framed
against the respondent and his mother-in-law by the trying
Magistrate was quashed. On the record, the material availa-
ble relating to the proceedings based on the F.I.R. dated
December 10, 1958, is that it was on July 18, 1959 for the
first time that the respondent was arrested in connection
with that report and the challan by the Police for trial of
the respondent was presented to the Court on July 25, 1959.
There is no material to show that between December 10′ 1958,
when the First Information Report was lodged, and July 18,
1959 when the respondent was arrested in connection with it,
there was, at any stage, any order passed by any Magistrate
in connection with the investigation that was going on.
As we have mentioned earlier, the revisions before the
Sessions Judge, and the High Court, arose out of two orders
made by the Additional District Magistrate on August 6,
1963, and October 5, 1963. The first order was made on an
application presented by the appellant on May 6, 1963 in
which he contended that no offence was disclosed on the
allegations made in the complaint and on the statement of
the complainant recorded by the Magistrate at Chandigarh,
and, further, that, in any case, the trial was barred on
account of want of requisite previous sanction as provided
in S. 195 of the Code of Criminal Procedure. It was also
alleged that the facts were so inter-mixed that the trial of
any other offence separate from the offence under S. 211,
I.P.C., was not permissible or possible, so that the
Magistrate was requested not to proceed with the trial and
to withdraw the order summoning the appellant; and in the
alternative, the prayer was that the appellant may be
discharged under S. 253, Cr. P.C., as the charge against
him was groundless.
The second order of the Magistrate dated 5th October, 1963,
was passed on the application of the appellant dated August
12, 1963, in which it was prayed that the Court may not take
cognizance ,of the complaint as instituted, and the trial
under S. 252, Cr. P.C. may not proceed. The prayer was
again based on the ground that cognizance of the offence
under S. 21 1, I.P.C. could not be taken in view of the
provisions of S. 195(1)(a) & (b), Cr. P.C., under which the
,Court was empowered to proceed in respect of that offence
only when there was a complaint, in writing by the authority
concerned. The Additional District Magistrate by his two
orders, rejected the contention that s. 195, Cr. P.C.,
barred this particular complaint which had been filed
against the appellant. The main ground for these orders was
that no proceedings were pending in any Court when the
complaint against the appellant was filed in the Court of
525
the Magistrate at Chandigarh for the offences under sections
204, 21 1, and 385, I.P.C. and consequently, s. 195, Cr.
P.C., was inapplicable. That is the view of the Addl.
District Magistrate which has been upheld both by the
Sessions Judge and the High Court; and consequently, the
appellant has now come up to this Court in this appeal.
On behalf of the appellant, the first submission made by his
counsel, Mr. Frank Anthony, Was that the making of a report
of a cognizable offence with the police is both institution
of a criminal proceeding as well as charging a person with
having committed an offence, so that, in this case, when the
appellant lodged his First Information Report on December
10, 1958, with the InspectorGeneral of Police, it must be
held that he had instituted a criminal proceeding against
the respondent, as well as he had charged him with having
committed the offences mentioned in that report within the
meaning of s. 21 1, I.P.C. In support of this proposition,
learned counsel relied on a Full Bench decision of the
Calcutta High Court in Karim Buksh v. The Queen-Empress(1),
and a Full Bench decision of the Kerala High Court in Albert
v. State of Kerala and Another.(2) It was urged that, on
this interpretation, when the respondent filed a complaint
against the appellant under s. 21 1, I.P.C., together with
other offences, the provisions of s. 195, Cr. P.C., became
attracted. It appears to us that in this case it is not at
all necessary to go into the question whether, whenever a
complaint of a cognizaable offence is filed, it must be held
that the complainant is instituting or causing to be
instituted a criminal proceeding, or is merely charging the
person named in the report with having committed the
offences mentioned therein, because, during the course of
argument in the appeal before us, no contention was put
forward that no offence under s. 211, I.P.C., was made out
and that the complaint of the respondent against the
appellant was wrongly being treated as in respect of a
charge under s. 21 1. Up to the stage of the revision before
the High Court, some attempt was made on behalf of the
appellant to plead that the facts alleged by the respondent
in his complaint to the Court did not constitute an offence
under s. 21 1, I.P.C. committed by the appellant; but, in
this Court, Mr. Frank Anthony on behalf of the appellant
gave up this plea and, in fact, proceeded to urge before us
that the complaint of the respondent against the appellant
did specifically include in it a charge under s. 21 1,
I.P.C. On behalf of the respondent and the State Government
also there was no suggestion that the complaint against the
appellant was not in respect of the offence under s. 21 1,
I.P. C. It is consequently unnecessary at this stage to go
into the question whether the facts given in the complaint,
or the facts which may ultimately be found proved after the
trial, do or do not constitute an offence under s. 21 1,
I.P.C. and if they do, whether those facts show that the
(1) I.L.R.17 Cal. 574.
(2) A.I.R. 1966 Kerala 11.
526
appellant had instituted a criminal proceeding against the
respondent or had only charged him with having committed the
offences mentioned in his report. That is a point which may
have to be decided at the conclusion of the trial of the
appellant; and consequently, we refrain from going into this
question at this stage.
The only point that falls for determination by this Court is
whether, in this case, cognizance of the_ complaint, which
included an offence under s. 21 1, I.P.C., filed by the
respondent against the appellant, was rightly or wrongly
taken by the Courts. The complaint, as we have mentioned
earlier, was filed by the respondent in the Court of the
Judicial Magistrate at Chandigarh on April 11, 1959, and on
the same day, cognizance of the offence was taken by that
Magistrate under s. 190, Cr. P.C., where after that
Magistrate proceeded to record the statement of the
respondent under s. 200, Cr. P.C. Before this cognizance
was taken, the appellant had already lodged his first
Information Report against the respondent with the
Inspector-General of Police on December 10, 1958. In
connection with that report, investigation by the Police
must have been going on, though none of the judgments of the
lower Courts mentioned what particular steps had been taken
in that investigation up to the 11th April, 1959, when this
complaint was filed by the respondent against the appellant.
The facts found only mentioned that in connection with that
First Information Report of the appellant, the respondent
was arrested on July 18, 1959, and subsequently, the charge-
sheet was submitted by the Police to the Court of the
Magistrate on July 25, 1959. This arrest and submission of
the charge-sheet were both subsequent to the filing of the
complaint by the respondent. In these circumstances, we
have to examine whether the Magistrate at Chandigarh was
competent to take cognizance of this complaint on April 11,
1959, in view of the provisions of s. 195 of the Code of
Criminal Procedure.
In dealing with this question of law, the important aspect
that has ,to be kept in view is that the point of time at
which the legality of the cognizance taken has to be judged
is the time when cognizance is actually taken under S. 190,
Cr. P.C. Under the Code of Criminal Procedure which applies
to trials of such cases, the only provision for taking
cognizance is contained in s. 190. Section 195, which
follows that section, is, in fact, a limitation on the
unfettered power of a Magistrate to take cognizance under
s.190. Under the latter section cognizance of any offence
can be taken by any Presidency Magistrate, District
Magistrate or Sub-Divisional Magistrate, and any other
Magistrate specially empowered in this behalf (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
527
offence has been committed. In the present case, the
Judicial Magistrate at Chandigarh had before him the
complaint filed by the respondent, and if s. 190 stood by
itself, he was competent to take cognizance of it under
clause (a) of sub-s. (1) of that section. This power of
taking cognizance was, however, subject to the subsequent
provisions contained in the Code of Criminal Procedure
including that contained in s. 195. Sub-s. (1) of s. 195,
which is relevant for our purposes, is reproduced below —
“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 subordinate; 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.”
This sub-section thus bars any Court from taking cognizance
of the offences mentioned in clauses (a), (b) and (c),
except when the conditions laid down in those clauses are
satisfied. In the case of an offence punishable under S.
211, I.P.C., the mandatory direction is that no Court shall
take cognizance of any offence punishable under this
section, 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. This provision in
clause (b) of sub-s. (1) of s. 195 is thus clearly a
limitation on the power of the Court to take cognizance
under s. 190. Consequently, it is at the stage when a
Magistrate is taking cognizance under s. 190 that he must
examine the facts of the complaint before him and determine
whether his power of taking cognizance under s. 190 has or
has not been taken away by cl. (b) of sub-s. (1) of s. 195,
Cr. P.C. In
528
the present case, therefore, at the time when this complaint
was filed ‘by the respondent in the Court of the Judicial
Magistrate at Chandigarh, it was necessary and incumbent on
that Magistrate to examine whether his power of taking
cognizance of the offence was limited by the provisions of
s. 195 (1)(b). He had, therefore, to determine whether
cognizance of this complaint charging the appellant with
commission of an offence under s. 211, I.P.C., could not be
taken by him, because that offence was alleged to have been
committed in, or in relation to, any proceeding in any
Court, and if he found that it was so, whether a complaint
in writing by such Court or some other Court to which such
Court was subordinate was necessary before he could take
cognizance. Consequently, in deciding this appeal, this
Court has to examine whether on the date when cognizance was
taken by the Judicial Magistrate at Chandigarh such
cognizance was barred under s. 195(1)(b), Cr. P.C., because
the offence punishable under s. 211, I.P.C., included in the
complaint was alleged to have been committed in, or in
relation to, any proceeding in any Court.
In the interpretation of this cl. (b) of sub-s. (1) of
s. 195, considerable emphasis has been laid before us on the
expression “in, or in relation to”, and it has been urged
that the use of the expression “in relation to” very
considerably widens the scope of this -section and makes it
applicable to cases where there can even in future be a
proceeding in any Court in relation to which the offence
under s. 211, I.P.C., may be alleged to have been committed.
A proper interpretation of this provision requires that each
ingredient in it be separately examined. This provision bars
taking of cognizance if all the following circumstances
exist, viz., (1) that the offence in respect of which the
case is brought falls under s. 211 I.P.C.; (2) that there
should be a proceeding in any Court; and .(3) that the
allegation should be that the offence under s. 211 was
committed in, or in relation to, such a proceeding. Unless
all the three ingredients exist, the bar under s. 195(1)(b)
against taking cognizance by the Magistrate, except on a
complaint in writing of a Court, will not come into
operation. In the present case also, therefore, we have to
see whether all these three ingredients were in existence at
the time when the Judicial Magistrate at Chandigarh
proceeded to take cognizance of the charge under s. 211,
I.P.C., against the appellant.
There is, of course, no doubt that in the complaint
before the Magistrate a charge under s..211, I.P.C., against
the appellant was included, so that the first ingredient
clearly existed. The question on which the decision in the
present case hinges is whether it can be held that any
proceeding in any Court existed when that Magistrate took
cognizance. If any proceeding in any Court existed and the
offence under s. 211, I.P.C., in the complaint filed before
him was alleged to have been committed in such a proceeding,
or in
529
relation to any such proceeding, the Magistrate would have
been barred from taking cognizance of the offence. On the
other hand, if there was no proceeding in any Court at all
in which, or in relation to which, the offence under s. 211
could have been alleged to have been committed, this
provision barring cognizance would not be attracted at all.
In this case, as we have already indicated when enumerating
the facts, the complaint of which cognizance was taken by
the Judicial Magistrate at Chandigarh was filed on April 1
1, 1959, and at that stage, the only proceeding that was
going on was investigation by the Police on the basis of the
First Information Report lodged by the appellant before the
Inspector-General of Police on December 10, 1958. There is
no mention at all that there was, at that stage, any
proceeding in any Court in respect of that F.I.R. When exa-
mining the question whether there is any proceeding in any
Court, there are three situations that can be envisaged.
One is that there ,may be no proceeding in any Court at all.
The second is that a proceeding in a Court may actually be
pending at the point of time when cognizance is sought to be
taken of the offence under s. 211, I.P.C. The third is that,
though there may be no proceeding pending in any Court in
which, or in relation to which, the offence under s. 211,
I.P.C., could have been committed, there may have been a
proceeding which had already concluded and the offence under
s. 211 may be alleged to have been committed in, or in
relation to, that proceeding. It seems to us that in both
the latter two circumstances envisaged above, the bar to
taking cognizance under s. 195(1)(b) would come into
operation. If there be a proceeding actually pending in any
Court and the offence under s. 21 1, I.P.C., is alleged to
have been committed in, or in relation to, that proceeding,
s. 195(1)(b) would, clearly apply. Even if there be a case
where there was, at one stage, a proceeding in any Court
which may have concluded by the time the question of
applying the provisions of s. 195(1)(b) arises, the bar
under that provision would apply if it is alleged that the
offence under s. 211, I.P.C., was committed in, or in
relation to, that proceeding. The fact that\ the proceeding
had concluded would be immaterial, because s. 195(1)(b) does
not require that the proceeding in any Court must actually
be pending at the time when the question of applying this
bar arises.
In the first circumstance envisaged above, when there is no
proceeding pending in any court at all at the time when the
applicability of S. 195(1)(b) has to be determined, nor
earlier proceeding which may have been of this sub-section
would not be attracted, has there been any concluded, the
provisions because the language used in it requires that
there must be a proceeding in some Court in, or in relation
to, which the offence under s. 21 1, I.P.C. is alleged to
have been committed. In such a case, a Magistrate would be
competent to take cognizance of the offence under s. 211
I.P.C., if his
530
jurisdiction is invoked in the manner laid down in s. 190 of
the Code of Criminal Procedure.
Mr. Frank Anthony on behalf of the appellant urged before us
that even in those cases where there may be no pending
proceeding in any Court, nor any proceeding which has
already concluded in any Court, the bar of s. 195(1)(b)
should be held to be applicable if it is found that a
subsequent proceeding in any Court is under contemplation.
We do not think that the language of cl. (b) of sub-s. (1)
of s. 195 can justify any such interpretation. A proceeding
in contemplation cannot be said to be a proceeding in a
Court. When there is mere contemplation of starting a
proceeding in future, there is no certainty that the
proceeding will come into existence. It will always be
dependent on the decision to be taken by the person who is
contemplating that the proceeding be started; and any
interpretation of the law, which will make the applicability
dependent on a future decision to be taken by another
person, would, in our opinion, be totally incorrect. The
applicability of this provision at the sweet will of the
person contemplating the proceeding will introduce an
element of uncertainty in the applicability of the law; and
such an interpretation must be avoided. In this case, apart
from this circumstance, the language used clearly lends it-
self to the interpretation that the bar has been placed by
the Legislature only in those cases where the offence is
alleged to have been committed in, or in relation to, any
proceeding actually pending in any Court, or any proceeding
which has already been taken in any Court. There is nothing
in the language to indicate that the Legislature also
intended to lay down this bar if a proceeding in a Court was
still under contemplation and if and when that proceeding is
taken, it may be found that the offence alleged to have been
committed was, in fact, committed in, or in relation to,
that proceeding. In this connection, the question of time
when the applicability of this provision has to be
determined, assumes importance. It appears to us that at
the time when in the present case the Judicial Magistrate at
Chandigarh had to determine the applicability of this bar,
he could not be expected to come to a decision whether any
proceeding in any Court was under contemplation in, or in
relation to, which the offence under s. 21 1, I.P.C., of
which he was asked to take cognizance, was alleged to have
been committed. In fact, it would be laying on the
Magistrate a burden which he could not be expected to
discharge properly and judicially as no Magistrate could
determine in advance of a proceeding in a Court whether the
offence under s. 21 1, I.P.C., of which he is required to
take cognizance, will be an offence which will be found
subsequently to have been committed in relation to the
contemplated proceeding to be taken thereafter. This
interpretation, sought to be placed on this provision on
behalf of the appellant, cannot, therefore, be accepted.
531
In this connection, reliance was placed by learned counsel
for the appellant on a series of cases decided by various
High Courts. In Re Vasudeo Ramchandra Joshi(1), the High
Court of Bombay quashed proceedings for prosecution of a
lawyer who had instigated some witnesses to give false
evidence. It appears that a pleader was defending an
accused person in a proceeding pending before a Magistrate
against his client in respect of a charge under s. 401,
I.P.C. On April 1, 1922, an application made by the pleader
on behalf of the accused for bail was refused. Then, the
statements of three witnesses were recorded under s. 164,
Cr. P.C., on April 18, 1922, and from these statements it
appeared that on April 10, these witnesses had an interview
with the pleader who had instigated them to give false
evidence. On April 15, another case against the pleader’s
client in respect of a dacoity was sent up to the Magis
trate, and the allegation against the pleader was that it
was in connection with this case of dacoity which was sent
up to the Magistrate on April 15, that the pleader had
instigated the witnesses to give false evidence. On June 2,
the witnesses were actually examined before the Magistrate
in this dacoity case which was sent up on April 15; and then
on June 7, a complaint was filed by the Police Officer
against the pleader charging him with having abetted the
giving of false evidence. It was in these circumstances
that the High Court held that the provisions of s. 195(1)
(b), Cr. P.C., were applicable and the case against the
pleader on the charge filed by the Police Officer was not
maintainable when there was no sanction by the Magistrate
who was enquiring into the dacoity case in relation to which
the witnesses were instigated to give false evidence. On
the facts, it is clear that that case is distinguishable
from the case before us. In that case, the charge by the
Police Officer was filed on June 7, and on that date a
proceeding was already pending before the Magistrate in
relation to which the witnesses had been instigated to give
false evidence. The provisions of s. 195(1)(b) were, there-
fore, clearly applicable. Dealing with this matter, one of
the learned Judges of the High Court held that “the words
are very general, and are wide enough, in my opinion, to
cover a proceeding in contemplation before a Criminal Court,
though it may not have begun at the date when the offence
was committed. If that is so, it is plain that sanction was
necessary in the present case, and, therefore, the
proceedings which have been undertaken are nun and void
without such sanction.”. These views expressed by Crump, J.,
had been relied upon by learned counsel in support of his
proposition that even if an offence is committed in relation
to a proceeding which is in contemplation, the provisions of
s. 195(1) (b), Cr. P.C., are attracted. We do not think
that any such general proposition can be inferred from that
decision. It is to be noted that in that case though it was
held that the offence of instigation of witnesses to give
false evidence was committed when proceedings
(1) Al.R. 1923 Bom. 105.
532
before a criminal Court were still under contemplation in
which the witnesses were to appear, the actual complaint f9r
that instigation was filed after the Magistrate was already
seized of the proceeding in which the witnesses were
instigated to give false evidence. On the date on which the
complaint was filed by the Police Officer charging the
pleader with instigation of giving false evidence, there was
already a pending proceeding before the Court in relation to
which that offence had been committed. Consequently, the
observations in that case should be interpreted as limited
to laying down that the provisions of s. 195(1)(b), Cr.
P.C., will be attracted even if the offence charged was
committed while the proceeding was in contemplation, and
that there was no decision by the Court that the sanction
under s. 195(1)(b) would be necessary even in those cases
where the proceeding is still under contemplation on the
date when the complaint is filed before the Court for
commission of the offence mentioned in s. 195(1)(b).
In Ghulam Rasul v. Emperor(1) the Police investigated a
report that a certain person had stolen the complainant’s
watch from his car, and in the investigation, the Police
came to the conclusion that the report was false and that
the watch had been removed by the complainant himself. The
case was accordingly reported to the Magistrate for
cancellation; and then the Police prosecuted the complainant
under ss. 193 and 211, I.P.C. The learned Judge of the
Lahore High Court in dealing with the case held: “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 statement made in an investigation by the
police with the intention that there shaH, in consequence of
this, be a trial in the Criminal Court, and I find support
for this view in the case of Chuhar Mal-Nihal Mal v.
Emperor(2).” 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 circumstance 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 s.
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.
1) A.I.R. 1936 Lah. 238. (2) A.I.R 1929
Sind 132.
533
In Balak Ram and Others v. Emperor(), it was held that a
person who sets the criminal law in motion by making a false
charge to the police of a cognizable offence by definitely
charging a person with having come to his house for the
purpose of dacoity, and insisting for investigation,
institutes criminal proceedings within the meaning of s.
211, and that criminal proceedings are just as much
instituted within the meaning of s. 211 when first
information of a cognizable offence is given to the Police
under s. 154, Cr. P.C., as when a complaint is made direct
to a Magistrate under s. 200, Cr. P.C. We do not think that
these comments made in that case can be interpreted as
laying down that criminal proceedings instituted by lodging
a First Information Report of a cognizable offence to the
Police amount to institution of a criminal proceeding in a
Court. What the Court in that case was deciding was that
there can be criminal proceedings apart from proceedings
instituted by a complaint in Court for purposes of s. 211,
I.P.C. That decision does not in any way attempt to lay down
that a proceeding in investigation is a proceeding in a
Court.
In Ramdeo v. The State and Another(2), the question arose
about the applicability of s. 195 to a complaint made for an
offence under s. 182, I.P.C., by a Police Officer for giving
false information to him in a report lodged by an informant.
In that connection, the Court considered the scope of s. 195
and held that an offence under s. 211, I.P.C., in connection
with a false charge made before the Police is an offence
committed in relation to proceedings in a Court contemplated
at the time of lodging information with the Police. But in
that case again the complaint by the Police was held to be
incompetent only on the further basis that the proceedings
under contemplation at the time when the offence under s. 21
1, I.P.C., was committed by lodging the report, were
actually instituted later. This institution of that case
took place before the Police lodged the complaint for the
offence under s. 182, I.P.C. Thus, this was again a case
where a proceeding was actually pending in a Court at the
time when cognizance of the offence under s. 182 was taken,
and it was held that the charge under s. 182 was covered by
a charge under s. 21 1, I.P.C. and that the latter offence
had been committed in relation to the proceeding which had
come into existence in the Court at the time of taking
cognizance.
In Har Prasad v. Hans Ram and Others(3), a private complaint
was filed before a Magistrate disclosing commission of
offences under ss. 467 and 471, I.P.C., at a time when there
were no proceedings pending in any Court. These offences
were committed for the purpose of using the forged documents
in the Court of the Tahsildar who was to deal with
subsequent mutation proceedings
(1) A.I.R. 1942 Oudh 100. (2) A.I.R. 1962 Raj. 149.
(3) A.I.R. 1966 All. 124.
534
and they were, in fact, so used subsequently. It was in
these circumstances that the Court held that the words “in
respect of” in S. 195(1)(c) were wide enough to include even
a document which was prepared before the proceedings started
in a Court of law but was produced or given in evidence in
that proceeding. It was further held that in this view of
the matter, although the document was fabricated before the
proceedings started in Tahsildar’s Court and although two of
the opposite parties were not impleaded in the mutation
proceedings, it must be held that the cognizance of the
offence was barred by s. 195(1)(c). Once again, it will be
noticed that all that the Court disregarded was the fact
that the substantive offence mentioned in S. 195 was
committed for a proceeding which was under contemplation,
but the proceedings in Court for that offence were held
barred by S. 195 only because subsequently, proceedings in
the Court of the Tahsildar were actually taken and the
documents concerned were used in it and were found to have
been forged in relation to those proceedings. On the date
on which the cognizance was taken, the proceeding, in
relation to which the offence had been committed, was
already pending.
In The Queen v. Subbanna Gaundan and Others(), it was found
that some persons were convicted under s. 21 1, I.P.C., for
falsely charging the complainant with having committed the
offence of highway robbery, knowing that there was no just
or lawful ground for such charge. The charge had been
preferred before an Inspector of Police, who disbelieved and
refused to act upon it. It was held that to constitute the
offence of preferring a false charge contemplated in S. 21
1, I.P.C., it was not necessary that the charge should be
before a Magistrate. In that connection, the Court further
held that it is enough in a case like that one if it appears
that the charge was still not pending and that an indictment
for falsely charging could not be sustained if the
accusation were entertained and still remained under proper
legal enquiry. Reliance is placed on the last dictum that
an indictment for falsely charging, as in the present case,
cannot be sustained while the accusation made in that
alleged false charge is still under proper legal enquiry.
In the present case, there is no doubt that at the stage
when the complaint was filed by the respondent against the
appellant for the offences under ss. 204, 211 and 385,
I.P.C., enquiry on the First Information Report lodged by
the appellant was still being conducted by the Police. In
such a case, there may be no justification for the Police
bringing a charge of false information being given to it
until the investigation is completed. But we do not find
any requirement anywhere in law that the person affected by
the false charge could not file his complaint in Court until
the Police had decided that the charge was false. The
discretion of the person affected by the false charge was
not to be fettered or tied down to the view taken by the
Police.
(1) (1862 & 1863) I Madras High Court Reports, 30.
535
The case of Gati Mandal v. The, Emperor() is again of no
help, because in that case also the only principle that was
laid down was that a Magistrate had no jurisdiction to order
a prosecution for making a false complaint, till the
complaint was dismissed. That case does not relate to the
right of a private person to file a complaint at a stage
when no case is pending in any Court against him and no
question of intervention of any Court under s. 195, Cr.P.C.,
arises.
In Fakir Mohamed v. Emperor(2), it was held that if there is
no complaint by a public servant as required by S. 195, the
defect cannot be said to be an error, omission or
irregularity in a complaint, because the complaint was never
made. Before an error, omission or irregularity in a
complaint can be cured, the complaint must exist, and
consequently, the provisions of s. 537, Cr. P.C. cannot
apply. In such a case, the trial without a complaint as
required by s. 195 would be void. These comments brought to
our notice do not have any particular bearing on the
question that we are called upon to examine. In the same
case, the Additional Judicial Commissioner of Sind
interpreted the effect of s. 195, Cr. P.C. He was of the
view that “section 195, though it forms a part of the Code
of Procedure, in reality contains a provision of the sub-
stantive law of crimes. For s. 195 does not deal with the
competency of the Courts, nor lays down which of several
Courts shall, in any particular matter, have jurisdiction to
try the case; and yet the language of s. 195 is apt to these
matters, and it forms part of the Chapter entitled ‘of the
jurisdiction of the Criminal Courts in enquiries and
trials’. Section 195 in reality lays down that the offences
therein referred to (or rather the acts constituting those
offences) shall not be deemed to be any offences at all,
except on the complaint of the persons or the Courts therein
specified; it enhances the connotation of those offences and
limits the scope of their definition. This limitation of
the definition is brought about by saying that no Court
shall take cognizance of the offences unless this condition,
requisite for initiation of proceedings, is satisfied”.
Relying on these observations, learned counsel for the
appellant urged before us that in this case also, we should
hold that no offence under s. 211 could come into existence
and no charge for that commission could be brought against
the appellant, unless there was a complaint by a Court under
S. 195, Cr. P.C. We are unable to agree with the view
expressed by the learned Additional Judicial Commissioner
that S. 195, Cr. P.C., really lays down that the offences
therein referred to shall not be deemed to be any offences
at all, except on the complaint of the persons or the Courts
therein specified. An offence is constituted as soon as it
is found that the acts which constitute that offence have
been committed by the person accused of the offence. It
remains an offence whether it is triable by a Court or not.
If a law prescribes punishment for that offence,
(1) 27 Cr. L.J. 1105.
upSC.I./66-6
A.I.R. 1927 Sind 10
536
the fact that the trial of that offence can only be taken up
by courts. after certain specified conditions are fulfilled
does not make that offence any the less an offence. The
limitation laid down by s. 195, Cr. P.C., is, in fact, a
limitation only on the power of Courts to take cognizance
of, and try, offences and does not in any way have the
effect of converting an act, which was an offence, into an
innocent act. We cannot, therefore, subscribe to the view
expressed in that case. There is the further circumstance
that in the case before us we have held that the provision
contained in s. 195(1)(b) was not applicable at the time
when the Judicial Magistrate at Chandigarh took cognizance
of the offence, and consequently, this principle sought to
be laid down by the Additional Judicial Commissioner of Sind
has no application.
In Gunamony Sapui v. Queen Empress(), the High Court of
Calcutta dealt with a case in which a complaint had been
lodged by one Syambar, accompanied by Gunamony, charging
certain persons with murder and other offences. The Police,
after investigation, made a report to the effect that the
information was false, and thereupon, the Magistrate
directed proceedings to be taken against Syambar and
Gunamony to show cause why they should not be prosecuted.
Syambar, who had made the report, then appeared before the
Magistrate, and repeating the information contained in his
report to the Police he asked for an enquiry, which was
ordered by the Magistrate. Once again, a report was made by
the police that the complaint was false. Thereupon, the
Magistrate, without putting and end to that complaint of
Syambar by dismissing it under s. 203, or passing any other
order as he might think fit, instituted proceedings against
Gunamony under s. 21 1, I.P.C. On these facts, the High
Court held that the proceedings against Gunamony must be
quashed, because there was no final order by the Magistrate
on the complaint of Symabar dismissing his complaint, and
that complaint was still pending. On the analogy to this
case, it was urged by learned counsel that in this case
also, the proceedings against the appellant should be
quashed on the ground that, at the stage when the respondent
filed his complaint against the appellant, the proceedings
being taken by Police on the report of the appellant had not
come to an end. We do not think that the two cases can be
compared. In that case, the proceedings were in Court and
the Court filed a complaint for bringing false charge or
institution of false criminal proceedings without putting an
end to those proceedings. In the case before us, there were
no proceedings before any Court on the, basis of the report
lodged by the appellant at the time when the respondent
filed his complaint. It was not at all necessary that the
proceedings being taken by the Police should terminate
before the Court could competently take cognizance of this
complaint filed by the respondent against the appellant.
(1) (1898-99) 3 C.W.N. 758.
537
In K.Ramaswami Iyengar v. K. V. Panduranga Mudaliar(1), a
learned Judge of the Madras High Court, dealing with the
principle underlying s. 195, Cr. P.C. held: “where an act
amounts to the offence of contempt of the lawful authority
of public servants (ss. 172-188, I.P.C.), or to an offence
against public justice such as giving false evidence (s.
193, et seq., I.P.C.), or to an offence relating to
documents actually used in a Court (s. 471 etc.), private
prosecutions are barred absolutely, and only the Court, in
relation to which the offence was committed, may initiate
proceedings. This salutary rule of law is founded on
commonsense. The dignity and prestige of courts of law must
be upheld by their presiding officers, and it would never do
to leave it to parties aggrieved to achieve in one
prosecution gratification of personal revenge and
vindication of a Court’s honour and prestige. To allow this
would be to sacrifice deliberately the dispassionate and
impartial calm of tribunals and to allow a Court’s prestige
to be the sport of personal passions.” We are unable to
interpret these views expressed by the Madras High Court as
implying that private prosecutions for the offences
mentioned in clauses (b) & (c) of sub-s. (1) of s. 195, Cr.
P.C., are barred absolutely and tinder no circumstances can
such offences be brought before courts by private persons.
In the case of cl. (b), there is the clear limitation that
private prosecutions are barred only if the offence
mentioned in that section was alleged to have been committed
in, or in relation to, any proceeding in any Court. If the
offence was not committed in, or in relation to, any
proceeding in any Court, a private complaint is clearly
permissible. The question of upholding the dignity and
prestige of courts of law only arises after there are
proceedings in the Courts and not at the stage when no such
proceedings have been instituted or have come into existence
in any Court. In the present case, we have already
indicated that the cognizance of the complaint filed by the
respondent against the appellant was taken at a stage when
there was no proceeding in any Court of law, and
consequently, at that stage, there could be no question of
dignity or prestige of a court of law being upheld or of a
private complaint being barred.
In Emperor v. Hardwar Pal (2), the complaint in question was
held to clearly constitute an offence under s. 182, I.P.C.,
but the High Court accepted the view held in earlier cases
that the facts in the complaint also constituted an offence
under the first part of s. 21 1, I.P.C. The High Court was
called upon to, decide whether in those circumstances
cognizance of the complaint for the offence under s. 182,
I.P.C., on the complaint of the Police Officer concerned
could be competently taken when the case related to false
information report made to the police on the basis of which
a case was sent up to Court and was tried by a Magistrate.
The Court held that the complaint under s. 182, I.P.C.,
could not be proceeded with,
(1) A.I.R. 1938 Mad. 173.
(2) I.L.R. 34 All. 522.
538
because, on the basis of the alleged false report, the
Police made an inquiry and sent up some accused for trial,
and the offence, which had been committed under the first
paragraph of s. 211 by falsely implicating an accused in the
report, was one committed in relation to a proceeding in
court. It was held to be obvious that there was
considerable relation between the first report and the
proceeding in Court, for the latter was the result of the
former. The report led to the police inquiry and the
inquiry to the proceeding in court. Consequently, the
offence committed was one under s. 211 in relation to a
proceeding in court and sanction of the Court was necessary.
This case, again, does not, therefore, indicate that any
view was taken contrary to our opinion expressed above.
Two other cases brought to our notice are A. T. Krishna-
machari v. Emperor,(1) and Badri v. State (2). In the
former case a statement was recorded under s. 164, Cr. P.C.
by a Magistrate in relation to a case which was subsequently
tried on that matter. Even though the Court, which tried
the case, had not recorded the statement under s. 164, it
was held that it was competent for that Court, on an
application under s. 476, to make a complaint against the
person in respect of a statement made by him to another
Magistrate under s. 164, Cr. P.C. This was again a case
where the statement under s. 164, Cr. P.C., was found to
relate to a proceeding that subsequently came into existence
in a Court, and the question of filing the complaint for the
offence of making that false statement or of taking
cognizance in respect of that offence only arose after that
proceeding in Court had already come into existence.
In the case of Badri v. State(2), where an offence under s.
21 1, 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 proceeding 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 s. 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 the
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 s. 21 1, 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.
(1) A.I.R. (1933) Mad.767.
(2) I.L.R. [1963] 2 All. 359.
539
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 s. 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 v. Sorab Rustomji Engineer(1)
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 s. 21 1, I.P.C., was
sought to be filed.
In support of his proposition that no criminal complaint
under s. 21 1, I.P.C., can be filed by a private person if
the First Information Report is under investigation and
relates to a cognizable offence, Mr. Anthony urged that we
should examine the scheme of the Code of Criminal Procedure
relating to investigation contained in ss. 154 to 173 of
that Code and should hold that this scheme itself envisages
that, invariably, the proceedings of investigation will
terminate in a judicial order by a Magistrate, and while
such proceedings are pending, it should not be permissible
for a private person to file the complaint on the ground
that the report under investigation was a false one. It is
perfectly correct that when a report of a cognizable offence
is made, a duty is cast on the Police Officer in charge of
the station to investigate that case, and in certain cases
of serious offences, immediate report has to be sent to the
Magistrate who has power to take cognizance of the offences.
There is, however, nothing in these sections to indicate
that the Magistrate is required to intervene in the
investigation until the investigation is completed and the
investigating officer arrives at some conclusion in
accordance with s. 169 or s. 170, Cr. P.C. After arriving
at this conclusion under either of those two sections, he
has to submit a report to the Magistrate empowered to take
cognizance of the offence under s. 173. If his conclusion
is covered by the provisions of s. 170, Cr. P.C., the
report submitted by the investigating officer will
necessarily show that a cognizable offence has been com-
mitted and such a report will satisfy the requirements of s.
190(1)(b), Cr. P.C. On that report, therefore, the
Magistrate concerned can take cognizance and proceed with
the trial of the case. On the other hand, if the report is
based on conclusions envisaged in s. 169, Cr. P.C., the
report will contain facts found by the Police Officer, and
would normally indicate that no such offence was committed
of which he could recommend a trial by the Magistrate. Even
on the receipt of such a report, the Magistrate is, of
course, competent to take cognizance under s. 190(1)(b) if
he is of the opinion that the facts stated in the report of
the Police constitute an offence. On the other hand, if
those facts do not constitute an offence, no cognizance of
the case can be taken by the Magistrate, though he can order
further
(1) A.I.R. (1941) Bom. 294.
540
investigation. If he does not choose to order further
investigation, all that the Magistrate has to do is to make
an order under sub-s. (3) of s. 173, Cr. P.C., discharging
the bond if the accused has been released by the Police on
his bond.
This scheme of investigation and its termination contained
in these sections of the Code of Criminal Procedure came up
for consideration in several cases. In Appa Ragho Bhogle
and Others v. Emperor(1) it was held that a case which was
investigated by the police under authority of a Magistrate
under s. 155, Cr. P. C., could not be disposed of without
the order of the Magistrate in some form or another after a
report was submitted to him. In State v. Vipra Khimji
Gangaram(2), it was held that where information relating to
the commission of a cognizable offence is given to an
officer in charge of a Police Station under s. 154 Cr. P. C.
, and is followed by investigation by him, he is bound under
s. 173(1) to forward his final report to a Magistrate
empowered to take cognizance of the offence on a police
report. This Court also in H. N. Rishbud and Inder Singh v.
The State of Delhi(3), examined the scheme of these
provisions of the Code of Criminal Procedure and held that
upon the completion of investigation, the investigating
officer has to submit a report to the Magistrate under s.
173, Cr. P. C., in the prescribed form, furnishing various
details, whether it appears to him that there is no
sufficient evidence or reasonable ground, or whether he
finds that there is sufficient evidence or reasonable ground
to place the accused on trial. Similar observations were
made by the Bombay High Court in State and Others v.
Murlidhar Govardhan and Others(4). In two of these cases,
viz., .State v. Vipra Khimji Gangaram(2), and State & Ors.
v. Murlidhar Govardhan & Ors.(4) the Courts further held
that when a Magistrate passes an order on the proceedings
under s. 173, Cr. P. C., that order is a judicial order
made by him. For purposes of considering the effect of
these cases in the case before us, it is not at all
necessary to express any opinion on the correctness of the
view that the order passed under s. 173, Cr. P. C., by the
Magistrate is a judicial order when he either discharges the
bond under sub-s. (3) of s. 173 or takes cognizance under s.
190 (1) (b), Cr. P.C. Even if it be accepted that the final
orders to be made by the Magistrate are judicial orders, the
only conclusion that follows is that at the last stage, on
receipt of the report under s. 173, the Magistrate has to
act in his judicial capacity. Until that stage is reached,
there is no intervention by the Magistrate in his judicial
capacity or as a Court. Consequently, until some occasion
arises for a Magistrate to make a judicial order in
connection with an investigation of a cognizable offence by
the police, no question can arise of the Magistrate having
the power of filing a complaint under s. 195(1)(b),
(1) 16 Cr. L. J. 161.
(3) [1955] I. S.C.R. 1150.
(2) A.I.R. (1952) Sau. 67.
(4) A.I.R. (1960) Bom. 240.
541
Cr. P. C. In such circumstances, if a private person,
aggrieved by the information given to the police, files a
complaint for commission of an offence under s. 21 1, 1. P.
C., at any stage before a judicial order has been made by a
Magistrate, there can be no question, on the date on which
cognizance of that complaint is taken by the Court, of the
provisions of s. 195(1) (b) being attracted, because, on
that date, there would be no proceeding in any Court in
existence in relation to which the offence under s. 21 1, 1.
P. C., can be said to have been committed. The mere fact
that on a report being made to the police of a cognizable
offence, the proceedings must, at some later stage, end in a
judicial order by a Magistrate, cannot, therefore, stand in
the way of a private complaint being filed and of cognizance
being taken by the Court on its basis.
The last submission made on behalf of the appellant was that
a very anomalous position can arise if a private person is
allowed to file a complaint that the report to the police
against him is false before investigation is completed. It
was urged that there can be cases where a report may be
lodged against a person for commission of a serious offence
like murder, and while investigation is still going on, the
accused may file a complaint against the person, who lodged
the report, under s. 21 1, 1. P. C., for making a false
report. Subsequently, when the police prosecute that
accused, there would, simultaneously, be two trials in one
of which the person accused of the murder would be under
trial, while in the other case the person, who lodged the
First Information Report, would appear as the accused. It
was suggested that a person accused of a serious crime
should not be given the advantage of putting his complainant
in jeopardy by instituting a case against him for the
offence under s. 21 1, 1. P. C. We are unable to hold that
it is necessary to interpret the law in such a way as to
necessarily avoid such a situation. There appears to be no
difficulty in both cases being tried together in the same
Court or one after the other by different Courts. In fact,
even if we were to accept the submission made on behalf of
the appellant, a similar situation can still arise. There
may be a case where the police may report to the
Magistrate that the First Information Report was false, and
in such a case, according to the submissions made by learned
counsel for the appellant, the Magistrate receiving the
report under s. 173, Cr. P. C., would be competent to file
a complaint against the informant for the offence under s.
21 1, 1. P. C., in exercise of his power -under s.195(1)(b),
Cr. P. C. At the same time, there would be no bar to that
informant filing a complaint direct in the Court of the
Magistrate on the basis of his F. 1. R., so that, again,
there can be two trials in the Court in one of which the
informant would be the accused, and in the other, the person
charged in the First Information Report would be the
accused. The situation will not, therefore, differ whether
we accept the submission made on behalf of the appellant, or
do not do so.
542
This aspect is, therefore, not at all helpful in
interpreting the scope of s. 195(1)(b), Cr. P. C. We,
consequently, hold that in this case the complaint, which
was filed by the respondent, was competent and the Judicial
Magistrate at Chandigarh, in taking cognizance of the
offence, only exercised jurisdiction rightly vested in him.
He was not barred from taking cognizance of the complaint by
the provisions of s. 195(1)(b), Cr. P. C.
In this case, one more point that was canvassed before us
was that the two offences under sections 204 and 385, I. P.
C., which were included in the complaint of the respondent,
were so inter-mixed with the offence under s. 21 1, I.P. C.,
that a trial for those two offences could not proceed if the
trial for the offence under s. 21 1, I. P. C. was barred by
s. 195(1)(b), Cr. P. C. That question need not be dealt
with by us in view of our decision that cognizance of the
offence under s. 21 I,, 1. P. C., has been rightly taken and
the trial for that offence is not vitiated. The appeal
fails and is dismissed.
V.P.S. Appeal dismissed.
543