{"id":104841,"date":"1978-12-13T00:00:00","date_gmt":"1978-12-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamlapati-trivedi-vs-state-of-west-bengal-on-13-december-1978"},"modified":"2018-01-26T06:41:10","modified_gmt":"2018-01-26T01:11:10","slug":"kamlapati-trivedi-vs-state-of-west-bengal-on-13-december-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamlapati-trivedi-vs-state-of-west-bengal-on-13-december-1978","title":{"rendered":"Kamlapati Trivedi vs State Of West Bengal on 13 December, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kamlapati Trivedi vs State Of West Bengal on 13 December, 1978<\/div>\n
Equivalent citations: 1979 AIR 777, \t\t 1979 SCR (2) 717<\/div>\n
Author: P Kailasam<\/div>\n
Bench: Kailasam, P.S.<\/div>\n
           PETITIONER:\nKAMLAPATI TRIVEDI\n\n\tVs.\n\nRESPONDENT:\nSTATE OF WEST BENGAL\n\nDATE OF JUDGMENT13\/12\/1978\n\nBENCH:\nKAILASAM, P.S.\nBENCH:\nKAILASAM, P.S.\nSINGH, JASWANT\nKOSHAL, A.D.\n\nCITATION:\n 1979 AIR  777\t\t  1979 SCR  (2) 717\n 1980 SCC  (2)\t91\n CITATOR INFO :\n RF\t    1981 SC  22\t (15,16)\n RF\t    1982 SC1238\t (10)\n\n\nACT:\n     Code of  Criminal Procedure 1898-S. 195(1)(b)-Scope of-\n'In relation  to any  proceedings in  any court' meaning of-\nPolice submitting  final report\t under s.  173 Cr.  P.C. and\nMagistrate passing  an order thereon-Whether judicial order-\nAttracting the bar in s. 195(1)(b).\n\n\n\nHEADNOTE:\n     Section 195(1)(b)\tof the\tCode of\t Criminal  Procedure\nprovides that  no court shall take cognizance of any offence\npunishable under any of the sections enumerated therein (one\nof which  is s. 211) if such offence is alleged to have been\ncommitted in or in relation to any proceedings in any court.\n     The appellant  filed a  complaint with  the police that\nthe accused  criminally trespassed, assaulted and abused him\nin filthy language and committed theft of money and valuable\ndocuments of the school of which he was the secretary. After\ninvestigation the  police found\t that there  was no evidence\nagainst the accused and therefore, the Magistrate discharged\nall the accused.\n     One of  the accused  thereupon  preferred\ta  complaint\nunder s.  211 IPC alleging that the appellant had instituted\ncriminal proceedings  with the intent to cause injury to him\nand others  knowing that  there was no just or lawful ground\nand thereby caused pecuniary loss and agony to him.\n     The appellant  moved the  High Court  for quashing\t the\nproceedings before  the Magistrate because in the absence of\na complaint  in\t writing  of  the  Magistrate  himself,\t the\nMagistrate had\tno jurisdiction\t to take  cognizance of\t the\noffence under  s.211 IPC in view of the provisions of s. 195\n(1)(b) of  the Cr.  P.C. The High Court refused to quash the\nproceedings.\n     On further appeal it was contended that an order passed\nby a Magistrate on a report submitted by the police under s.\n173 Cr. P. C. being a judicial order the bar of s. 195(1)(b)\nwould be attracted.\n     Allowing the appeal,\n^\n     HELD: Per\tKoshal, J.  (with  whom\t Jaswant  Singh,  J.\nagreed) 1.  The\t complaint  against  the  appellant  was  in\nrespect of  an offence\talleged to  have been  committed  in\nrelation to  a proceeding  in court. In taking cognizance of\nit  the\t  Magistrate  acted  in\t contravention\tof  the\t bar\ncontained in  s. 195(1)(b) because there was no complaint in\nwriting either\tof the\tMagistrate or  of a  superior court.\n[756 D]\n     2. Taking\tcognizance of  any offence  by a  Magistrate\nunder s.  190 is  not a\t condition precedent  for him  to be\nregarded as  a court.  Magistrates are specifically labelled\nas courts  by s.  6 of\tthe Code  of Criminal Procedure and,\ntherefore, have\t to be\tregarded as  such. It is true that a\nMagistrate also performs functions which are of an executive\nnature and do not fall within\n718\nthe sphere of judicial duties and it may plausibly be argued\nthat in\t the discharge of those functions he does not act as\na court.  But then he cannot but be regarded as a court when\nhe  acts   judicially.\tSections  496  and  497\t which\tmake\nprovision for  bail  matters  describe\ta  Magistrate  while\ndealing with  those matters  as a  court and  these sections\noperate at  all stages\tof a  case including  that when\t the\ninvestigation has  just started.  Neither in  these sections\nnor in\ts. 195\tis there  anything to  show  that  the\tword\n\"court\" has  been used in two different senses and therefore\nthe legislature\t must be deemed to have used it in one sense\nwherever it occurs in the Code. [743 B, 742 D-H]\n     3. The  well accepted  position is that a court created\nby a  statute, when it performs judicial functions, would be\ndeemed to  act as  a  court;  and  Magistrates'\t courts\t are\nregarded as  such unless  they are  performing executive  or\nadministrative functions. [744 F-G].\n     Shell Co.\tof Australia Ltd. v. Federal Commissioner of\nTaxation, [1931]  AC 275  PC and  Halsbury's Laws of England\n(3rd Edn.)  Vol. 9  p. 342;  Virinder Kumar Satyawadi v. The\nState of  Punjab,<\/a> [1955] 2 SCR 1013; Smt. Ujjam Bai v. State\nof U.P.,<\/a> [1963] 1 SCR 778; referred to.\n     4. The source of power exercised by the authority, i.e.\nwhether it  is executive  or judicial  power, would make all\nthe difference\tin the determination of the question whether\nthe authority  acts as a court or merely as a quasi judicial\ntribunal. [746 F].\n     5. Section\t 4(2) of  the  Code  of\t Criminal  Procedure\nprovides that  \"all words  and expressions  used herein\t and\ndefined in  the IPC  and not  hereinabove defined  shall  be\ndeemed to  have the meanings respectively attributed to them\nby the\tCode.\" In  the matter  of dispensation\tof  criminal\njustice\t the   Indian  Penal   Code  (which   contains\t the\nsubstantive law)  and the  Criminal  Procedure\tCode  (which\ndeals with  procedure) may  be regarded\t as supplementary to\neach other.  The term \"Judge\" and \"Court of justice\" used in\nss. 19 and 20 of the Indian Penal Code give an indication of\nthe attributes of a court as used in criminal law generally.\nAlthough the  term \"court  of justice\"\thas not been used in\nthe Cr.\t P.C. the  expression \"Judge\" is used in s. 197 and,\ntherefore, when\t a judge  (including a\tMagistrate)  who  is\nempowered to act judicially and does so act, constitutes not\nmerely a Court but a Court of Justice. [747 E, D, C, F-G].\n     6. The  caption of\t Chapter XIV  is not decisive of the\nquestion whether  a particular\tprovision contained in it is\nlimited to the supervisory jurisdiction of the Magistrate in\nrelation to  the investigation being conducted by the police\nor deals  with his  judicial functions\tas a court. Although\nChapter XIV  is headed\t\"Information to the police and their\npowers to  Investigate\", it is not confined to matters which\nare strictly concerned with the investigation stage but also\ndeals with  situations arising\tafter the  investigation has\nbeen finalised.\t For example,  s. 172(2)  clearly deals with\nthe use\t of police  diaries at\tan inquiry  or trial which a\nMagistrate holds  not in  his  administrative  or  executive\ncapacity but  as a court. Similarly sections 169 and 170 are\nanother instance  in point  in which  an order\tpassed by  a\nMagistrate is a judicial order determining the rights of the\nparties after application of his mind. If that\n719\nbe so the order passed by the Magistrate in the instant case\nmust be characterised as a judicial act and therefore as one\nperformed in  his capacity  as a court. [748 D, 747 G-748 C,\n750 G, 751 E]\n     7. For  a tribunal\t to be\tacting as a court, it is not\nnecessary that\tthe parties  must have a right of hearing of\nadducing evidence  at every  stage of the proceedings before\nit. While  passing interlocutory  orders, issuing  temporary\ninjunctions etc.,  the presiding officer of a court does act\nas a court. [751 H-752 B].\n     8. All  orders passed by a Magistrate acting judicially\n(such as orders of bail and those passed under sub-s. (3) of\ns. 173\tof the Code discharging the accused or orders taking\ncognizance of  an offence  complained of)  are parts  of  an\nintegral whole\twhich may  end with  a\tdefinitive  judgment\nafter an  inquiry or  a trial  or earlier,  according to the\nexigencies of  the situation obtaining at a particular stage\nand which involves, if the need be, the adducing of evidence\nand the\t decision  of  the  Magistrate\ton  an\tappreciation\nthereof. They  cannot be  viewed in  isolation and  given  a\ncharacter different  from the  entire  judicial\t process  of\nwhich they are intended to form a part. [752 E-F].\n     Abhinandan Jha  & Ors.  v. Dinesh\tMishra,<\/a> [1967] 3 SCR\n668; M.\t L. Sethi  v. R.  P. Kapur & Anr.,<\/a> [1967] 1 SCR 520;\nreferred to.\n     Kailasam, J. (dissenting)\n     The restricted  meaning given  to \"Court\"\tin s. 195(2)\nCr. P.C.  read along  with the\tconditions to  be  specified\nbefore a  complaint is preferred by the court, indicate that\nthe proceedings\t before a Magistrate in which he agrees with\nthe report  by the  police under  s. 169  Cr. P.C.  and\t the\nproceedings  in\t  remand   or\tbail   applications   during\ninvestigations will  not amount\t to proceedings\t 'in  or  in\nrelation to court.' [737 H].\n     1. The  policy behind  the bar  against institution  of\ncriminal  proceedings  by  a  private  party  is  that\twhen\noffences are  committed against\t lawful authority  or  false\nevidence is  given or  offence is  committed against  public\njustice, it  should be\tthe concerned  authority that should\nprefer a complaint and no one else. [723 H].\n     2. A court is charged with a duty to decide disputes in\na judicial  manner and\tdeclare the  rights of\tparties in a\ndefinitive judgment. To decide in a judicial manner involves\nthat the  parties are  entitled as  a matter  of right to be\nheard in  support of  their claim  and to adduce evidence in\nproof of  it. It  also imparts\tan obligation on the part of\nthe authority to decide the matter on a consideration of the\nevidence adduced and in accordance with law [725 B-C].\n     3. It is settled law that when a Magistrate applies his\nmind on complaints, he must be held to have taken cognizance\nof the\toffence mentioned  in  the  complaint  but  when  he\napplies his mind not for such purpose but for the purpose of\nordering investigation\tunder s. 156(3) Cr. P.C. or issues a\nsearch warrant\tfor the\t purpose of investigation, he cannot\nbe said to have taken cognizance of any offence. [727 E]\n     4. When  the Magistrate  receives a report under s. 169\nof the\tCr. P.C.  that there  is not  sufficient evidence or\nreasonable ground for suspicion and agrees\n720\nwith it,  he may  be doing  so in  exercise of\this judicial\nfunction but  the question  is whether\the is  acting  as  a\ncourt. Most  of the  requirement of  a court  are lacking at\nthis stage. [727 F, 729 C].\n     5. To  be classified  as a\t court, an authority must be\ncharged with  a duty to decide disputes in a judicial manner\nand declare  the rights of parties in a definitive judgment.\nThis involves  that the\t parties are entitled as a matter of\nright to  be heard  in support\tof their claim and to adduce\nevidence in proof of it and an obligation on the part of the\nauthority to  decide the  matter on  a consideration  of the\nevidence adduced and in accordance with law. [729 D-E].\n     6. Though\tthe Magistrate in deciding whether or not to\naccept the  report of a police officer under s. 169 Cr. P.C.\nmay be\texercising his judicial mind and though there may be\nsome of\t the trappings of the court, at this stage he cannot\nbe termed  as a\t court within  the provisions  of s.  195(2)\nCr.P.C. At  this stage\tthe rights  of the  parties are\t not\nfinally decided\t as the\t complainant is\t entitled to  file a\ncomplaint directly  to the  Magistrate. The  persons accused\nare not\t before the  Magistrate and  neither the complainant\nnor the\t accused are  entitled to  be  heard  or  to  adduce\nevidence before\t the Magistrate\t at this  stage. It  cannot,\ntherefore, be  said that the Magistrate has a duty to decide\nthe matter on a consideration of the evidence adduced before\nhim. [729 B, F-H]\n     7. The  proceeding under  s. 167  Cr.  P.C.  is  during\ninvestigation.\tThe   Magistrate  to  whom  the\t accused  is\nproduced can  from  time  to  time  authorise  detention  of\naccused in  such custody as such Magistrate thinks fit for a\nterm not  exceeding 15\tdays in\t whole. If  he has  not\t the\njurisdiction to\t try the  case or  commit it  for trial\t but\nconsiders further  detention is\t necessary, he may order the\naccused to be forwarded to a Magistrate having jurisdiction.\nIn investigation  by the police the Magistrate is associated\nin  a\tsupervisory  capacity.\t The  action  taken  by\t the\nMagistrate cannot  be taken  to be  that of  a court for the\nMagistrate who\thas no\tjurisdiction to\t try the  case has a\nlimited power.\tThe trial  commences only  after the offence\nhas been taken cognizance of. [735 E-F]\n     8. Section 496 provides as to when bail may be taken in\nnon-bailable offences.\tThe provisions\tof s. 496 and s. 497\nspeak of  an accused  person in\t custody charged with a non-\nbailable offence being produced before court at any stage of\nthe proceedings.  The section deals with the exercise of the\npower of  a court  at any  stage  of  proceedings  when\t the\naccused is  brought before  a Court  while in the custody of\nthe police  officer. Though there may be some trappings of a\ncourt and  the section itself mentions the word 'court', the\nrequirements for  being a court for the purpose of s. 195(2)\nhave not been satisfied. [735 H-736 D]\n     9(i) There is a conflict between various High Courts as\nto whether  a complaint is necessary when on a police report\nunder s.  169 the  Magistrate  does  not  take\tany  further\naction. The  Bombay,  Saurashtra  and  Andhra  Pradesh\tHigh\nCourts in  1946 Bom.  7(11), 1952 Saurashtra 67(68) and 1969\nAP 281 (287) have held that a Magistrate passing an order on\na final\t report of police under s. 173 referring the case as\nfalse should  be deemed\t to be\ta court\t passing a  judicial\norder disposing\t of the\t information to the police, and that\nin such a case, the complaint of the Magistrate is necessary\nfor the\t prosecution of\t the informant under s. 211 IPC. The\nMadras, Calcutta and\n721\nAllahabad High Court in AIR 1934 Mad. 175, AIR 1948 All. 184\nFB and AIR 1916 Cal. 593 have held the other view. (ii) When\nno further  proceedings\t are  taken  by\t the  Magistrate  or\nreceipt of  a  police  report  under  s.  169  there  is  no\nproceeding in  or in relation to any court and therefore, no\ncomplaint by the court is necessary. [733 G-734 B].\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45
\nof 1972.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 18-8-71  of the  Calcutta High  Court in Crl. Revision
\nNo. 1006 of 1970.\n<\/p>\n
     Sukumar Ghosh for the Appellant.\n<\/p>\n
     M.\t M.   Kshatriya\t and   G.  S.\tChatterjee  for\t the
\nRespondent.\n<\/p>\n
     Jaswant Singh, J. concurred with the Opinion of Koshal,
\nJ. Kailasam, J. gave a dissenting Opinion.\n<\/p>\n
     JASWANT SINGH,  J. I  have had  the advantage  of going
\nthrough the  judgments\tprepared  by  my  esteemed  Brothers
\nKailasam and  Koshal. While  I find  myself unable  to agree
\nwith the view expressed by my learned Brother Kailasam, I am
\ninclined to  agree with\t the opinion  of and  the conclusion
\narrived at by my learned brother Koshal.\n<\/p>\n
     KAILASAM, J.  This appeal\tis filed by special leave by
\nKamlapati Trivedi  against the judgment of the Calcutta High
\nCourt in  Criminal Revision  No. 1006  of 1970\tby which  it
\nrefused to quash the proceedings which were taken cognizance
\nof by  the Magistrate,\ton a  complaint given  by one  Satya
\nNarayan Pathak.\n<\/p>\n
     Satya Narayan  Pathak  is\tthe  Secretary\tof  Bhartiya
\nPrimary School in Howrah. The appellant before us, Kamlapati
\nTrivedi, was  a Head Teacher of the Bhartiya Primary School.
\nOn 18th\t April, 1970 Satya Narayan Pathak served a Notice on
\nthe appellant  calling upon  him to show cause why he should
\nnot be found guilty of negligence of duty. On receipt of the
\nNotice, the  appellant attempted  to remove  certain records
\nfrom the  school but he was prevented. On the same day, that
\nis, on\t18th April, 1970 the appellant complained in writing
\nto the\tOfficer In-charge of Bally Police Station, Howrah at
\n21.40 hours  that Satya Narayan Pathak and others criminally
\ntrespassed, assaulted  and abused him in filthy language and
\ncommitted theft\t of money  and\tvaluable  documents  of\t the
\nschool. The  Police treating  the complaint of the appellant
\nas First  Information Report  took cognizance  of an offence
\nunder Sections 147, 448 and
\n722<\/span>
\n379 I.P.C. and registered it. A warrant of arrest was issued
\nagainst Satya  Narayan\tPathak\tand  others.  Satya  Narayan
\nPathak attended\t the Court  on 21-5-1970  and 21-7-1970\t the
\ndates fixed  for submission of the Police report. The Police
\nOfficer who  investigated the  case on\tfinding no  evidence
\nagainst Satya  Narayan Pathak  and others, named as accused,
\nsubmitted a  final report  and the  magistrate agreeing with
\nthe report discharged all the accused.\n<\/p>\n
     As\t Satya\t Narayan  Pathak  felt\tthat  the  appellant
\ninstituted criminal  proceedings with intent to cause injury
\nto him\tand others, for offences under Sections 147, 448 and
\n379 knowing  that there was no just or lawful ground and had
\ncaused pecuniary  loss and  agony to  him,  he\tpreferred  a
\ncomplaint against  the appellant for offences under Sections
\n211 and 182 of the I.P.C. on 20th October, 1970. The learned
\nMagistrate took\t cognizance of\tthe case  and  summoned\t the
\nappellant under Section 211 of the Indian Penal Code. fixing
\n10th December, 1970 for appearance of the appellant. On 16th
\nNovember, 1970\tthe appellant  appeared\t in  court  and\t was
\nreleased on  bail. The\tappellant moved\t the High  Court  of
\nCalcutta for  quashing the  proceeding of  the Magistrate on
\nthe ground  that the  cognizance taken by the Magistrate was
\nbad and\t without  jurisdiction\tfor  non-compliance  of\t the
\nprovisions of Section 195(1) (b) of Criminal Procedure Code.
\nThe learned  Judge refused  to\tquash  the  proceedings\t and
\ndischarge the  accused, by judgment dated 18th August, 1971.
\nAgainst the order of the Single Judge of the High Court, the
\npresent appeal to this Court has been filed.\n<\/p>\n
     The main  ground of  attack in  this appeal is that the
\nHigh Court failed to appreciate the meaning of the words “in
\nrelation to any proceedings in any court” in Section 195 (1)\n<\/p>\n
(b) of\tthe Code of Criminal Procedure. It is submitted that
\nwhen a\tfinal report  was  submitted  by  the  Police  under
\nSection 173  of Criminal  Procedure Code  and the Magistrate
\npassed an  order it  would be  a judicial  order and the bar
\nunder Section 195 (1) (b) would be attracted.\n<\/p>\n
     The question  that arises\tfor consideration is whether
\non the\tfacts of  the case the bar against taking cognizance
\nin Section  195(1)(b) is attracted. Section 195(1)(b) so far
\nas it  is relevant  for the  purpose of\t this  case  may  be
\nextracted:\n<\/p>\n
     “195(1)   No court shall take cognizance\n<\/p><\/blockquote>\n
\t       (a)  ……. …….\n<\/p><\/blockquote>\n
\t       (b)  of any  offence punishable\tunder any of
\n\t\t    the following sections of the same Code,
\n\t\t    namely, sections
\n723<\/span>
\n\t\t    193, 194,  196, 195, 199, 200, 205, 206,
\n\t\t    207, 208,  209, 210,  211 and  228, when
\n\t\t    such offence  is alleged  to  have\tbeen
\n\t\t    committed in,  or in  relation  to,\t any
\n\t\t    proceeding in  any Court,  except on the
\n\t\t    complaint in writing of such Court or of
\n\t\t    some other\tCourt to which such Court is
\n\t\t    subordinate; or\n<\/p><\/blockquote>\n
\t       (c)  ……………\n<\/p><\/blockquote>\n
\t  (2)  In clauses  (b) and  (c) of  sub-section (1),
\n\t       the term “Court” (includes) Civil, Revenue or
\n\t       Criminal\t Court,\t  but  does  not  include  a
\n\t       Registrar or  Sub-Registrar under  the Indian
\n\t       Registration Act, 1877.<\/p><\/blockquote>\n
     While  Section  190  of  the  Criminal  Procedure\tCode
\nenumerates  the\t  conditions  requisite\t for  initiation  of
\nproceedings, Section  195 bars\ttaking cognizance of certain
\noffences except on complaint by authorities specified in the
\nSection. Section  195(1) (a)  requires\tthat  the  complaint
\nshould be  by a public servant if the offences complained of
\nare under Sections 172 to 188 of the Indian Penal Code. Sub-
\nsection (1)(b)\trefers to  offences under Sections 193, 194,
\n195, 196,  199, 200,  205, 206,\t 207, 208, 209, 210, 211 and
\n228 and\t requires the  complaint in  writing  of  the  Court
\nbefore whom the offence is alleged to have been committed in
\nor in  relation to  any proceeding in any Court. Sub-section\n<\/p>\n
(c) relates  to offences under Sections 463, 471, 475 or 476
\nwhen the  offence is  committed by a party to any proceeding
\nin any\tCourt in  respect of a document produced or given in
\nevidence in  such proceeding  a complaint  in writing by the
\ncourt is  required. Sections  172 to 190 of the Indian Penal
\nCode deal  with offences  constituting\tcontempt  of  lawful
\nauthority of  public servants.\tThe bar to taking cognizance
\nof offences  under Sections 172 to 188 except on a complaint
\nby the\tpublic servant is laid down in Section 195(1) (a) of
\nthe Code  of Criminal  Procedure. Chapter  XI, of the Indian
\nPenal Code  relates to\tfalse evidence\tand offences against
\npublic justice.\t The cases  of offence such as under Section
\n463, 471,  475 or  476 alleged\tto have\t been committed by a
\nparty in  a proceeding in any court in respect of a document
\nproduced or  given  in\tevidence  in  such  proceeding,\t the
\ncomplaint in  writing of  such court is required. The policy
\nbehind the  bar for institution of criminal proceedings by a
\nprivate party  is that\twhen offences  are committed against
\nlawful authority  or false  evidence  is  given\t or  offence
\ncommitted against public justice, it should be the concerned
\nauthority that should prefer a complaint and no one else.\n<\/p>\n
724<\/span><\/p>\n
     In this  appeal we\t are  concerned\t with  the  question
\nwhether the  offence under  Section 211 I.P.C. is “committed
\nin or  in relation to any proceeding in any court”. Before I
\ndeal with  the question\t whether the offence is committed in
\nor in  relation to  any proceeding  in\tany  court,  I\thave
\ndetermined the\tmeaning of  the word ‘court’ for the purpose
\nof this\t Section. Sub-section (2) to Section 195 states that
\nin clauses  (b) and  (c) of sub-section (1), the term “Court
\nincludes a  Civil, Revenue  or Criminal\t Court, but does not
\ninclude\t a  Registrar  or  Sub-Registrar  under\t the  Indian
\nRegistration Act,  1877. It  may  be  noted  that  the\tword
\n‘includes’ was\tintroduced by an amendment to sub-clause (b)
\nAct 18\tof 1923 instead of the word “means”. In the Criminal
\nProcedure Code\t1974 the word ‘means’ has been introduced in
\nthe place  of ‘includes’. To some extent the use of the word
\n‘includes’  may\t widen\tthe  scope  of\tthe  definition.  In
\nHalsbury’s Laws\t of England, third edition, volume 9 at page
\n342, the  meaning of  court is\tgiven. At  page\t 343  it  is
\nstated: “many  bodies are  not courts, although they have to
\ndecide questions,  and in so doing have to act judicially in
\nthe sense  that\t the  proceedings  must\t be  conducted\twith
\nfairness and  impartiality”. Lord  Sankley in  Shell Co.  of
\nAustralia Ltd.\tvs. Federal  Commissioner  of  Taxation\t has
\nenumerated some\t negative propositions as to when a Tribunal
\nis not\ta court. The learned Judge observed “The authorities
\nare clear  to show that there are Tribunals with many of the
\ntrappings of  a court  which nevertheless  are not courts in
\nthe  strict   sense  of\t  exercising  judicial\t power”.  In
\nenumerating the propositions Lord Sankey observed:\n<\/p>\n
\t  “In that  connection it may be useful to enumerate
\n     some negative  propositions  on  this  subject:  (1)  A
\n     tribunal is  not necessarily  a Court  in\tthis  strict
\n     sense because  it\tgives  a  final\t decision.  (2)\t Nor
\n     because it hears witnesses on oath. (3) Nor because two
\n     or more  contending parties  appear before\t it  between
\n     whom it  has  to  decide.\t(4)  Nor  because  it  gives
\n     decisions which  affect the rights of subjects. (5) Nor
\n     because there  is an appeal to a Court. (6) Nor because
\n     it is  a body  to which a matter is referred by another
\n     body”.<\/p><\/blockquote>\n
     In enumerating  the negative  propositions the  learned
\nJudge  relied  on  the\tdecision  in  Rex.  vs.\t Electricity
\nCommissioners.\n<\/p>\n
     In Shri  Virinder Kumar  Satyawadi\t vs.  The  State  of
\nPunjab. Venkatarama Ayyar, J. speaking for this Court quoted
\nwith approval the decision in Shell Co. of Australia (supra)
\nand observed that the dis-\n<\/p>\n
725<\/span><\/p>\n
tinction between  Courts  and  tribunals  exercising  quasi-
\njudicial functions  is well  established, though  whether an
\nauthority constituted by a particular enactment falls within
\none category  or the  other may,  on the  provisions of that
\nenactment, be  open to\targument.  After  referring  to\t the
\nvarious decisions,  the learned\t Judge observed\t “it may  be
\nstated broadly that what distinguishes a Court from a quasi-
\njudicial tribunal  is that  it is  charged with\t a  duty  to
\ndecide disputes\t in a judicial manner and declare the rights
\nof parties in a definitive judgment. To decide in a judicial
\nmanner involves that the parties are entitled as a matter of
\nright to  be heard  in support\tof their claim and to adduce
\nevidence in  proof of  it. It  also imparts an obligation on
\nthe part  of  the  authority  to  decide  the  matter  on  a
\nconsideration of the evidence adduced and in accordance with
\nlaw.\n<\/p>\n
     This view\twas accepted  by the  Supreme Court  in Smt.
\nUjjam  Bai   v.\t State\t of  Uttar   Pradesh<\/a>  where  Justice
\nHidayatullah observed  that though  the\t taxing\t authorities
\nfollow a  pattern of  action which  is considered  judicial,
\nthey are  not converted\t into courts of civil judicature and
\nthey still  remain instrumentalities  of the  State and\t are
\nwithin the definition of the State.\n<\/p>\n
     The answer to the question as to what is ‘court’ in the
\nCriminal Procedure  Code is  not free from difficulty for in
\nmany places  the word Magistrate as well as court is used in
\nidentical situations.  Section 6  of the  Criminal Procedure
\nCode states  that besides  the High  Courts and\t the  Courts
\nconstituted under  any law other than this Code for the time
\nbeing in  force there  should be  five classes\tof  Criminal
\nCourts in  India,  namely:  (i)\t Courts\t of  Sessions;\t(ii)
\nPresidency Magistrate,\t(iii) Magistrates of the first class\n<\/p>\n
(iv) Magistrates of the second class, (v) Magistrates of the
\nthird class.  Criminal\tcourts\taccording  to  this  section
\ntherefore, consist  of courts  specified  besides  the\tHigh
\nCourt and  courts that\tare constituted\t under any other law
\nother than  Criminal Procedure\tCode. The  Code of  Criminal
\nProcedure provides not merely judicial enquiry into or trial
\nof  alleged   offences\tbut  also  for\tprior  investigation
\nthereof. Section  5 of\tthe Code  provides that all offences
\nunder Indian Penal Code shall be investigated, inquired into
\nand tried  and otherwise  dealt with  in accordance with the
\nprovisions  hereinafter\t  contained.  For  the\tpurposes  of
\ninvestigation  offences\t are  divided  into  two  categories
\n‘cognizable’ and  non-cognizable. When\tinformation  of\t the
\ncommission of  a cognizable  offence  is  received  or\tsuch
\ncommission is  suspected, the appropriate police officer has
\nthe authority to enter on investigation.\n<\/p>\n
726<\/span><\/p>\n
In case\t of non-cognizable  offence the\t officer  shall\t not
\ninvestigate without  the order\tof a  competent\t Magistrate.
\nAccording to scheme of the Code investigation is preliminary
\nto a  case being  put up for trial for a cognizable offence.
\nInvestigation  starts\ton  an\t information   relating\t  to
\ncommission of  an offence  given to  an officer in-charge of
\nPolice Station\tand recorded  under Section 154 of the Code.
\nInvestigation consists\tgenerally of  various steps,  namely
\nproceeding  to\t the   spot-ascertainment   of\t facts\t and
\ncircumstances of the case, discovery and arrest of suspected
\noffender, collection  of evidence relating to the commission
\nof the\toffence which  may consist of examination of various
\npersons including  the accused,\t and the  reduction  of\t the
\nstatement into\twriting such as places and seizure of things
\nand formation of opinion as to whether on material collected
\nthere is  a case  to place the accused before the Magistrate
\nfor trial  and filing  of the charge-sheet under Section 173
\nof the\tCriminal Procedure  Code. After the investigation is
\ncompleted and  a chargesheet  is filed\tunder Section 173 of
\nthe  Criminal\tProcedure  Code\t  the  question\t  of  taking
\ncognizance arises.  Section 190\t of the\t Criminal  Procedure
\nCode  lays  down  conditions  necessary\t for  initiation  of
\nproceedings. It provides for that any Presidency Magistrate,
\nDistrict Magistrate  or\t Sub-Divisional\t Magistrate  or\t any
\nother Magistrate specially empowered in this behalf may take
\ncognizance of any offence.\n<\/p>\n
\t  (a)  upon receiving  a complaint  of\tfacts  which
\n\t       constitute such offence;\n<\/p>\n
\t  (b)  upon a  report in  writing of such facts made
\n\t       by any police officer; and\n<\/p>\n
\t  (c)  upon information\t received  from\t any  person
\n\t       other than  a police-officer  or upon his own
\n\t       knowledge or suspicion, that such offence has
\n\t       been committed.\n<\/p>\n
     One mode of taking cognizance by the Magistrate is upon
\na report  in writing  of  such\tfacts  made  by\t any  police
\nofficer. This  stage is\t reached  when\tthe  police  officer
\nsubmits a  report under Section 173. When the Police Officer
\nupon investigation forms an opinion that there is sufficient
\nevidence or  reasonable ground\the shall forward the case to
\nthe Magistrate\tempowered to  take cognizance of the offence
\nupon a\tPolice report.\tUnder Section  190 of  the  Criminal
\nProcedure Code, if the Magistrate to whom the report is sent
\nby the Police Officer, agrees with the opinion of the police
\nofficer, he  proceeds to take cognizance, and issues process
\nunder Section  204. The\t judicial opinion  is unanimous that
\nwhen once  Magistrate taking  cognizance of an offence finds
\nthat there is sufficient ground for proceeding and issues
\n727<\/span>
\nsummons\t or   a\t warrant  as  the  case\t may  be,  he  takes
\ncognizance, and\t the trial  begins, and\t further proceedings
\nwill be undoubtedly before a criminal court.\n<\/p>\n
     In Jamuna Singh and others v. Bhadai Sah, Das Gupta, J.<\/a>
\nobserved “The  Code does  not contain  any definition of the
\nwords ‘institution  of a  case’. It  is clear,\thowever, and
\nindeed\tnot  disputed,\tthat  a\t case  can  be\tsaid  to  be
\ninstituted in  a court\tonly when the court takes cognizance
\nof the\toffence alleged\t therein.” When\t once this  stage is
\nreached the  requirement of  Section 211 of the Indian Penal
\nCode “institutes  or causes  to be  instituted any  criminal
\nproceeding” is\tsatisfied. The\tsecond part  of Section\t 211
\nI.P.C. refers  to falsely  charging  a\tperson\twith  having
\ncommitted an offence. A person falsely charging another of a
\ncognizable offence  before a police officer will come within
\nthe mischief of the second part of the Section.\n<\/p>\n
     The crucial  question  that  arises  in  this  case  is
\nwhether it  can be  said that  when a person falsely charges
\nanother person\tof a  cognizable  offence  before  a  Police
\nOfficer and when the Police Officer upon investigation finds
\nthat there  is no  sufficient evidence\tor reasonable ground
\nfor suspicion  to justify  the forwarding  of the accused to
\nthe Magistrate\tunder Section  169 and the Magistrate agrees
\nwith him, an offence under Section 211 is committed in or in
\nrelation of  any proceeding in any court’. It is settled law
\nthat when  a Magistrate\t applies his  mind under Chapter XVI
\nthat is\t on complaints,\t he  must  be  held  to\t have  taken
\ncognizance of  the offence  mentioned in  the complaint\t but
\nwhen he\t applies his  mind not\tfor  such  purpose  but\t for
\npurpose of  ordering investigation  under Section 156 (3) or
\nissues a search warrant for the purpose of investigation, he
\ncannot be  said to have taken cognizance of any offence vide
\nR. R.  Chari v.\t State of  U.P. and<\/a> in Gopal Das v. State of
\nAssam. When  the Magistrate  receives a report under Section
\n169 of\tthe  Criminal  Procedure  Code\tthat  there  is\t not
\nsufficient evidence  or reasonable  ground for suspicion and
\nagrees with  it, he  may be  doing so  in  exercise  of\t his
\njudicial function  but the  question is whether he is acting
\nas a court.\n<\/p>\n
     In Abhinandan  Jha &  Ors. v.  Dinesh Mishra<\/a> this Court
\nhas pointed  out the  difference between  the report  by the
\npolice filed  under Section  170 of  the Criminal  Procedure
\nCode which  is referred\t to as\ta charge-sheet\tand a report
\nsent  under   Section  169  which  is  termed  variously  in
\ndifferent States as either ‘referred charge’, ‘final report’
\nor
\n728<\/span>
\nsummary. This  court observed that when the police submitted
\na report  that no  case has  been made\tout for\t sending  up
\naccused for trial it is not open to the Magistrate to direct
\nthe  police   officer  to   file  a   chargesheet.  In\tsuch
\ncircumstances the  Magistrate is not powerless as it is open
\nto him\tto take\t cognizance of\tan  offence  on\t the  report
\nsubmitted by  the Police  under\t Section  190(1)(c)  of\t the
\nCriminal Procedure  Code. Dealing  with the  position of the
\nMagistrate when\t a report is submitted by the police that no
\ncase is\t made out  for sending\ta case\tfor trial  the court
\nobserved that it is open to the magistrate to agree with the
\nreport and close the proceedings. Equally it will be open to
\nthe  Magistrate\t if  he\t takes\ta  different  view  to\tgive
\ndirections to  the  police  under  Section  163(1)  to\tmake
\nfurther investigations.\t After receiving  a report  from the
\npolice on  further investigation  if the Magistrate forms an
\nopinion on  the fact  that it  constitutes an offence he may
\ntake cognizance\t of an\toffence\t under\tSection\t 190(1)\t (c)
\nnotwithstanding the opinion of the police expressed in final
\nreport. This court held in conclusion that there is no power
\nexpressly or impliedly conferred on the Magistrate under the
\nCode to\t call upon  the police to submit a charge-sheet when
\nthey have  sent a  report under Section 169 of the Code that
\nthere is  no case  made out  for sending the case for trial.
\nThe same  view is  expressed in the decision in Kamla Prasad
\nSingh v.  Hari Nath Singh and<\/a> another. In R. N. Chatterji v.
\nHavildar Kuer  Singh, A.  N. Ray J.<\/a> as he then was, followed
\nthe decision  in Abhinandan  Jha &  Ors.  v.  Dinesh  Mishra<\/a>
\n(supra)\t and  held  that  the  provisions  of  the  Criminal
\nProcedure Code\tdo not\tempower the Magistrate to direct the
\npolice officer\tto submit a charge-sheet but if he is of the
\nopinion that  the repot\t submitted by  the  police  requires
\nfurther\t  investigation,    the\t  Magistrate\tmay    order
\ninvestigation, under  Section 163  of the Criminal Procedure
\nCode. It was held that directing further enquiry is entirely
\ndifferent from\tasking police  to submit a charge-sheet. The
\nonly source  open for  the Magistrate if he is not satisfied
\nwith  the  police  report  under  Section  169\tis  to\ttake
\ncognizance of  an offence  under Section  190(1) (c)  of the
\nCriminal Procedure Code. It may be noted that in M. L. Sethi
\nv. R.  P. Kapur\t & Anr.,<\/a>  it was held that if the Magistrate
\ndisagrees with\tthe opinion  of the police he may proceed to
\ntake cognizance\t on the\t facts stated  in the  police  under
\nSection 190(1) (b).\n<\/p>\n
     It is  clear that when a Magistrate applies his mind to
\nthe contents  of a  complaint before  him for the purpose of
\nproceeding under Section
\n729<\/span>
\n200 and the other provisions of the Code following it, he is
\ntaking cognizance of an offence as held by five judges Bench
\ndecision of  this  Court  in  Mowu  v.\tThe  Superintendent,
\nSpecial\t Jail,\tNowgong,  Assam\t and  Others.  The<\/a>  position
\nregarding the  case in\twhich Magistrate  accepts  a  report
\nunder Section  169 Criminal  Procedure Code is different. On
\nan analysis  of the  various sections,\tit  appears  that  a
\nreport under Section 169 of the Cr. P. C. and the magistrate
\nagreeing with  it, are\tproceedings under  Chapter XIV which
\nrelates to  information to  the police\tand their  power  to
\ninvestigate. The  Chapter provides  for supervision  by\t the
\nMagistrates of\tthe investigation by the police. It has been
\nlaid down that Magistrate has no option except to agree with
\nthe report  of the Police Officer unless he proceeds to take
\ncognizance of  the offence  under Section 190(1) (c). Though
\nthe Magistrate\tin deciding  whether to accept the report or
\nnot may\t be exercising\this judicial mind, it cannot be said
\nthat he\t is acting as a court. The Magistrate acting at this
\nstage cannot  be said  to fulfil  the positive\trequirements
\nenumerated by  Venkatarama Ayyar,  J. in Shri Virinder Kumar
\nSatvawadi v.  The State\t of Punjab (supra). To be classified
\nas court  it must  be charged with a duty to decide disputes
\nin a  judicial manner and declare the rights of parties in a
\ndefinitive judgment  and to  decide in a judicial manner. It
\ninvolves that  the parties are entitled as a matter of right
\nto be heard in support of their claim and to adduce evidence
\nin proof  of it\t and  an  obligation  on  the  part  of\t the
\nauthority to  decide the  matter on  a consideration  of the
\nevidence adduced  and in accordance with law. As pointed out
\nby Lord Sankey in Shell Co. case (supra) though there may be
\nsome of\t the trappings\tof the\tcourt the magistrate at this
\nstage cannot  be termed\t as a court within the provisions of
\nSection 195(2)\tCr. P.\tC. The\tmagistrate  may\t decide\t the
\nquestion finally  which may  affect parties  but that is not
\nenough. Even  when a  tribunal bears  witnesses on  oath and
\ndecides rights of parties and a right of appeal is provided,
\nit may not, as observed by Lord Sankey, become a court. Most
\nof requirements\t of a  court are lacking when the Magistrate
\nagrees with  the report\t of the police officer under Section\n<\/p>\n
169. At this stage the rights of the parties are not finally
\ndecided as  the complainant  is entitled to file a complaint
\ndirectly to  the Magistrate.  The persons  accused  are\t not
\nbefore the  Magistrate and  neither the\t complainant nor the
\naccused are  entitled to  be heard  or\tto  adduce  evidence
\nbefore the  Magistrate at this stage. It cannot be said that
\nthe Magistrate\thas  a\tduty  to  decide  the  matter  on  a
\nconsideration of the evidence adduced before him.\n<\/p>\n
730<\/span><\/p>\n
     Taking  into   account  the   scheme  of  the  Criminal
\nProcedure Code,\t the function  of the Magistrate in agreeing
\nwith a\treport under  Section 169  can only be said to be in
\nthe course  of investigation  by the  police. In Chapter XIV
\nwhich relates  to information to the police and their powers
\nto investigate,\t the Magistrate having jurisdiction over the
\narea and  empowered to\ttake  cognizance  is  given  certain
\nsupervisory powers.  Thus the  Police  Officer\tincharge  of
\nPolice Station\tis required  to refer  the informant  to the
\nMagistrate when\t information as\t to a non-cognizable offence
\nis received by him. The Police Officer shall not investigate
\na non-cognizable  case without\tthe orders of the Magistrate
\nthough the  Police Officer  is\tentitled  to  investigate  a
\ncognizable offence  without the order of the Magistrate. The
\nMagistrate  under  Section  190\t is  entitled  to  order  an
\ninvestigation into  a cognizable  offence. Section  157\t Cr.
\nP.C. requires  the officer incharge of the Police Station to
\nsend a report to the Magistrate empowered to take cognizance
\nof the\toffence of  which he has received information. Under
\nSection 159 Crl.P.C. the Magistrate receiving a report under
\nSection 157 may proceed or depute any magistrate subordinate
\nto him\tto proceed  to hold  a preliminary  inquiry into the
\ncase. Section  164 empowers  Presidency\t Magistrate  or\t any
\nMagistrate of  first-class or any Magistrate of second class
\nspecially empowered  by the  State Government  to  record  a
\nstatement or  confession made  to him  in the  course of  an
\ninvestigation under this Chapter. When a search is conducted
\nby a  Police Officer,  he is  required to send copies of the
\nrecord\tto   the  nearest   Magistrate\tempowered   to\ttake
\ncognizance. Section  167 of  the Crl.P.C. requires that when
\ninvestigation cannot  be completed  within 24 hours and when
\nthere are  grounds  of\tbelieving  that\t the  accusation  or
\ninformation is\twell-founded, the  Officer incharge  of\t the
\nPolice Station\tshall transmit to the nearest Magistrate the
\ncopy of\t the entries  in the  diary relating to the case and
\nforward the  accused to\t such Magistrate.  The Magistrate to
\nwhom the  accused is forwarded is empowered to authorise the
\ndetention of  the accused  in such  custody as he thinks fit
\nfor a term not exceeding 15 days. If the period is to exceed
\n15 days\t he is\trequired  to  forward  the  accused  to\t the
\nMagistrate having  jurisdiction. When  an  investigation  is
\ncompleted and when the Police Officer is of the opinion that
\nthere is  sufficient evidence,\the shall forward the accused
\nto the Magistrate along with his report. The final report of
\nthe Police  Officer is to be submitted under Section 173. It
\nmay be\tnoticed that Section 169 does not require the Police
\nOfficer to send a report as he is required under Section 170
\nwhen he\t is of\tthe opinion  that  there  is  no  sufficient
\nevidence or  reasonable ground\tof suspicion  to justify the
\nforwarding of  the  accused  to\t the  Magistrate.  The\tonly
\nprecaution he  has to  take is\tto take\t steps to ensure the
\nappearance of
\n731<\/span>
\nthe accused in the event of the Magistrate empowered to take
\ncognizance wants  his presence.\t A perusal  of\tthe  various
\nSections under\tChapter XIV  shows that\t the  Magistrate  is
\nassociated  with  the  investigation  by  the  Police  in  a
\nsupervisory capacity.  It has  been laid  down that when the
\nMagistrate applies  his mind  for ordering  an investigation
\nunder Section 156(3) of the Cr.P.C. or for issue of a search
\nwarrant for  the purpose of investigation, he cannot be said
\nto have\t taken cognizance  of the  offence.  The  Magistrate
\nduring\tthis   stage  functions\t  as  a\t  Magistrate  during
\ninvestigation. As the trial has yet to commence it cannot be
\nsaid that he is acting as a court.\n<\/p>\n
     Before leaving this aspect of the case I would refer to
\nsome of\t the decisions\twhich were  cited before  us on this
\npoint. Strong reliance was placed by the learned counsel for
\nthe appellant  on a  decision in  J. D.\t Boywalla  v.  Sorab
\nRustomji Engineer.  Boywalla, the  appellant  in  the  case,
\nlodged a  complaint with  the police  against the respondent
\nSorab Rustomji\tEngineer for  cheating in  respect of  three
\nrupees. The  police after  investigation submitted  a report
\nstating that  no offence has been disclosed against him with
\na request  that he  may be  discharged\tand  his  bail\tbond
\ncancelled.  On\t receipt  of   the  report   the  Magistrate
\ndischarged the\taccused and  cancelled the  bail bond. Sorab
\nRustomji Engineer,  against whom  the complaint\t was  filed,
\nfiled a\t case under  Section 211 of the I.P.C. alleging that
\nthe  appellant\t Boywalla  instituted  criminal\t proceedings
\nagainst him  knowing that  there is no just or lawful ground
\nfor such proceedings. The appellant contended that it is the
\nMagistrate that\t can lodge a complaint under Section 195 (b)
\nof the\tCr.P.C. and  that no  court shall take cognizance of
\nthe offence  punishable under Section 211 of the I.P.C. when
\nsuch offence  is alleged  to have  been committed  in or  in
\nrelation to  any proceeding to a court except on a complaint
\nin writing  of such  court. John Beaumont Chief Justice held
\nthat in\t doing what  he had  done the  Magistrate had  taken
\ncognizance of  the case\t and therefore\tunder Section 195(b)
\nCr.P.C. it  was the  Magistrate\t alone\twho  could  lodge  a
\ncomplaint. Two\treasons were given by the Chief Justice. The
\nsecond ground  with which  we are  concerned at\t the  moment
\ndeals as  to the  capacity in which Magistrate acted when he
\naccepted the  police report under Section 169 and discharged
\nthe  accused.\tThe  Chief   Justice  expressed\t that  after
\nconsidering the\t report if  the Magistrate thinks that there
\nis no  sufficient ground  of proceeding he may discharge the
\naccused and though the Code does not expressly provide there
\ncan be\tno doubt  that when  the Magistrate can act upon the
\nreport of the
\n732<\/span>
\npolice officer\tand  discharge\tan  accused  person  without
\nfurther inquiry\t only by  acting in  his  judicial  capacity
\nwhich should  be open  to review  by  the  High\t Court.\t The
\nlearned Chief  Justice proceeded  on the basis that before a
\nmagistrate passed  orders on  the report of the police under
\nSection 169  he should\ttake cognizance\t of the offence. The
\nChief Justice  thus took  the view  that (1)  the Magistrate
\nbefore discharging  the accused\t in pursuance  of  a  police
\nreport under  Section 169  takes cognizance  and (2) acts in
\nhis judicial  capacity. While  there could  be no doubt that
\nthe magistrate\tis acting  judicially, I  am unable  to hold
\nthat before a magistrate discharges an accused agreeing with
\nthe report  of the  police under  Section 169  Cr. P.C.,  he
\ntakes cognizance.  This Court  has held\t that the  stage  of
\nlaking cognizance  arises only\twhen he\t acts under  Section
\n190(1) (b).  Further this  Court has  taken the view that if
\nthe magistrate\tdoes not  agree with  a police\treport under
\nSection 169  Cr.P.C., he  can  only  proceed  under  Section
\n190(1)(c). The\tfacts of  the  case  were  the\taccused\t was
\narrested and  later after  the order  of discharge  the bail
\nbond was  cancelled. The  circumstances of the arrest of the
\naccused his  being released on bail during investigation and
\nhis discharge  after the  police report were the reasons for
\nthe learned  Chief Justice coming to the conclusion that the
\nMagistrate was\tacting in  a judicial  capacity. The learned
\nJudge observed\t“indeed it  is a  novelty to  me to  hear it
\nsuggested that\tthere is  any authority\t which can  make  an
\nadministrative order  discharging the  arrested person\tfrom
\njudicial capacity”.  But as  he has  pointed out acting in a
\njudicial capacity  alone is not enough. The Supreme Court in
\nM. L.  Sethi’s case  (supra) expressed\tits dissent from the
\nview taken  in Ghulam  Rasul v.\t Emperor where\tthe  learned
\nJudge held  that a  complaint by criminal court is necessary
\nwhen a\tfalse report  is made  in an  investigation  by\t the
\npolice. The  facts of  the case are that Ghulam Rasul made a
\nreport to  the police  that a certain person stole his watch
\nfrom his  car. On  investigation  the  police  came  to\t the
\nconclusion that\t the report was false and that the watch had
\nbeen  removed  by  the\tpetitioner  himself.  The  case\t was
\nreported to the Magistrate for cancellation. A complaint was
\ngiven against  Ghulam Rasul  for offence  under Sections 193
\nand 211\t I.P.C.\t and  the  Magistrate  took  cognizance\t and
\nrecorded the  evidence\tof  the\t prosecution  witnesses\t and
\nframed charge  against\thim.  Accepting\t the  contention  on
\nbehalf of  Ghulam Rasul\t the High Court held that in view of
\nsection\t  195(1)   (b),\t  Criminal   Procedure\t Code,\t the
\nMagistrate’s taking  cognizance of  the offence was illegal.
\nThe Court  observed: “I am clear that the words in this sub-
\nsection ‘in  relation to  any proceeding in any court’ apply
\nto this case of a false report or a false
\n733<\/span>
\nstatement made\tin an  investigation by\t the police with the
\nintention that\tthere shall  in consequence  of this,  be  a
\ntrial in  the Criminal\tCourt”. The  facts of  the case show
\nthat a report under Section 169, Criminal Procedure Code was
\nsubmitted by  the police for cancellation and the Magistrate
\ndropped further\t proceedings. The Supreme Court referring to
\nthe view  of the  High Court  observed: “He  appears to have
\nheld the  view that the Magistrate having passed an order of
\ncancellation, it  was necessary that the complaint should be
\nfiled by  the  Magistrate,  because  section  195(1)(b)\t had
\nbecome inapplicable.  If the  learned Judge  intended to say
\nthat without any proceeding being taken by the Magistrate in
\nthe case  which was  investigated by the police it was still
\nessential that a complaint should be filed by the Magistrate
\nsimply because\ta subsequent proceeding following the police
\ninvestigation was contemplated we consider that his decision
\ncannot be accepted as correct”. This decision makes it clear
\nthat  even   though  the   Magistrate  passed  an  order  of
\ncancellation on\t the report  by the police under section 169
\nif the\tMagistrate has not taken any proceeding, a complaint
\nby the\tMagistrate is  not necessary.  The decision  of\t the
\nSupreme Court covers the facts of the present case so far as
\nthe discharge  of the  accused\ton  a  police  report  under
\nsection\t 169,\tCriminal  Procedure   Code,  is\t  concerned.
\nReferring to the Bombay decision, the Supreme Court observed
\nthat “the  decision of\tthe  Bombay  High  Court  in  J.  D.
\nRoywalla  v.   Sorab  Rustomji\t Engineer  (supra)  is\talso
\ninapplicable because in that case also orders were passed by
\na Magistrate  on the  final report  made by the police after
\ninvestigation of  the facts  in the  report, in\t respect  of
\nwhich complaint\t under section\t211 I.P.C.  was\t filed”.  In
\nSethi’s case  (supra) at  the stage  when the  complaint was
\nfiled by the respondent under Section 211 I.P.C., the police
\nwere enquiring into the appellant’s report. When there is no
\nproceeding pending  before any\tcourt at  the time  when the
\napplicability of  section 195(1)  (b) is to be determined, a
\ncomplaint by  the court\t is not\t necessary. The\t decision in
\nBombay case  is therefore  not applicable  to the  facts  in
\nSethi’s case as in the Bombay case orders were passed by the
\nmagistrate on the final report of the police.\n<\/p>\n
     There is  a conflict  between various High Courts as to
\nwhether a  complaint is\t necessary when\t on a  police report
\nunder Section  169 the\tMagistrate does not take any further
\naction. The  Bombay,  Saurashtra  and  Andhra  Pradesh\tHigh
\nCourts in 1946 Bombay 7(11), 1952 Saurashtra 67(68) and 1969
\nA.P. 281  (287) have held that a Magistrate passing an order
\non a  final report of police under Section 173 referring the
\ncase as\t false should  be deemed  to be\t a Court  passing  a
\njudicial order\tdisposing of  the information to the police,
\nand
\n734<\/span>
\nthat in\t such a\t case, the  complaint of  the Magistrate  is
\nnecessary for the prosecution of the informant under Section
\n211 of\tthe I.P.C.  The Madras,\t Calcutta and Allahabad High
\nCourts in  A.I.R. 1934 Madras 175, A.I.R. 1948 Allahabad 184
\nFull Bench and A.I.R. 1916 Calcutta 593 following 1921 Patna
\n302 and\t 1917 Calcutta 593 have held the other view. For the
\nreasons\t already   stated  I   hold  that  when\t no  further
\nproceedings are\t taken by  the Magistrate  on receipt  of  a
\npolice report under Section 169 there is no proceeding in or
\nin relation to any court and, therefore, no complaint by the
\ncourt is necessary.\n<\/p>\n
     The next  question which  arises in  this case  is that
\nwhether a complaint by the court is necessary because of the
\narrest and  release on\tbail of\t the accused  Satya  Narayan
\nPathak\tin   consequence  of  the  complaint  given  by\t the
\nappellant.  The\t  police  after\t taking\t cognizance  of\t the
\ncomplaint by  Kamlapati Trivedi, the appellant in this case,
\ntook cognizance\t under Sections\t 147, 448  and\t379  I.P.C.,
\nregistered a  case and\tissued a  warrant of  arrest against
\nSatya Narayan  Pathak and  five others. They all surrendered
\nin court  on 6-5-1970 and were released on bail on a bond of
\nRs. 200\/-  each. They  attended court on 21-5-1970 and 21-7-
\n1970 when  the police  report was  expected to be filed. The
\nHigh Court  found that\tthere was a police investigation and
\nduring investigation Satya Narayan Pathak surrendered before
\nthe Magistrate who released him on bail and police submitted
\na final\t report and  the Magistrate  discharged him from his
\nbail bond.  On this  evidence the  High Court  came  to\t the
\nconclusion that\t the proceedings  before the  court become a
\ncriminal proceeding only when the court takes cognizance and
\nnot before.  On these  facts the question arises whether the
\nproceedings when the accused were released on bail and later
\nafter the  receipt of  the report  from the police they were
\ndischarged, would  be in  or in\t relation to a court. It was
\nsubmitted that\twhen in pursuance of a complaint the accused
\nwas  arrested\tand  remand   and  bail\t  proceedings\twere
\nsubsequently taken  before a  Magistrate in  connection with
\nthe report to the police, they were proceedings in court and
\na complaint  by the  court was\tnecessary. In support of the
\nproposition a decision in Badri v. State was relied upon. In
\nthat case  the Allahabad  High Court  held that\t an  offence
\nunder section  211, Indian  Penal Code, alleged to have been
\ncommitted by  the appellant by making a false report against
\nthe complainant\t and others to the police, was an offence in
\nrelation to  the remand proceedings and the bail proceedings
\nbecause those  proceedings were\t a direct consequence of the
\nmaking\tof   the  report  and  the  subsequent\tarrest\tand,
\ntherefore, the case is governed by section 195(1)(b) of Code
\nof
\n735<\/span>
\nCriminal  Procedure.  The  Supreme  Court  in  Sethi’s\tcase
\n(supra) at page 538 did not consider it necessary to express
\nany opinion  whether remand  and bail proceedings before the
\nMagistrate can\tbe held to be proceedings in a court nor did
\nthey consider  the question  whether the  charge of making a
\nfalse report  could be\trightly held  to be  in relation  to
\nthese proceedings.  The position, therefore, is the question
\nwhether remand and bail proceedings before the Magistrate in
\npursuance of information given to the police of a cognizable
\noffence are proceedings in or in relation to a court is left
\nopen.\n<\/p>\n
     To determine whether the remand or bail proceedings are
\nproceedings in\ta court\t it is\tuseful\tto  refer  again  to
\nChapter XIV  of the  Criminal Procedure Code. On a complaint
\nby an  informant relating  to a\t commission of\ta cognizable
\noffence the investigation starts. The information may not be
\nagainst\t any   person.\tWhen   an  investigation  cannot  be
\ncompleted in  24 hours\tafter the  arrest of the accused and
\nwhen the  officer is  of the view that there are grounds for
\nbelieving that the accusation or information is well-founded
\nthe  officer   is  required   to  transmit  to\tthe  nearest
\nMagistrate a copy of the entries in the diary and to forward
\nthe accused  to the Magistrate. When the accused is produced
\nthe Magistrate\tis required  to act  under Section 167(2) of
\nthe Criminal  Procedure Code.  The Magistrate  to  whom\t the
\naccused\t is   produced\tcan  from  time\t to  time  authorise
\ndetention of  accused in  such custody\tas  such  Magistrate
\nthinks fit  for a term not exceeding 15 days in whole. If he
\nhas not\t the jurisdiction  to try  the case or commit it for
\ntrial but  considers further  detention is necessary, he may
\norder the  accused to  be forwarded  to a  Magistrate having
\njurisdiction. We  have seen  that in  investigation  by\t the
\npolice\tthe   Magistrate  is  associated  in  a\t supervisory
\ncapacity. The action taken by the Magistrate cannot be taken
\nto be  that of\ta  court  for  the  Magistrate\twho  has  no
\njurisdiction to\t try the  case has a limited power. Even the
\nMagistrate who\thas jurisdiction  to try  the  accused\twhen
\nacting under  the Section  is not  acting as a court for the
\nwords used are the Magistrate having jurisdiction. The trial
\ncommences only\tafter the  offence has been taken cognizance
\nof.  The   proceedings\tunder\tSection\t  167,\t is   during
\ninvestigation. But it has to be noted that when the bail and
\nremand proceedings  are before the Magistrate, he has to act
\njudicially. If\tthe accused  applies for bail the Magistrate
\nhas to act judicially and take into account the facts of the
\ncase before  he decides\t to release  the accused  on bail or
\nrefuse bail.  Chapter XXXIII  Cr. P.  C.  deals\t with  bail.
\nSection 496  provides as  to when  bail may be taken of non-
\nbailable offences.  The provisions  of Sections\t 496 and 497
\nspeak of  an accused  person in\t custody charged with a non-
\nbailable offence
\n736<\/span>
\nbeing produced before court at any stage of the proceedings.
\nThe Section  deals with the exercise of the power of a court
\nat any\tstage of  proceedings when  the accused\t is  brought
\nbefore a  court while  in the custody of the police officer.
\nAccording to  the wording  of Section,\tthe bail proceedings
\nwould be  before a court even though the accused is produced
\nwhile in  custody of  a police officer. Even though the word
\n‘court’ is used in Sections 496 and 497, we have to consider
\nwhether proceedings  can be  said to be taken before a court
\nas defined  in Section\t195(2) of  Cr. P. C. In deciding the
\nquestion we  have to  bear in  mind the\t restricted  meaning
\ngiven to  the word  in the  observations of  Lord Sankey  in
\nShell Company’s case reported in Shell Co. of Australia Ltd.
\nv. Federal  Commissioner of  Taxation (supra)  and the tests
\nlaid down  by Venkatarama  Ayyar, J.  in Shri Virinder Kumar
\nSatyawadi v.  The State\t of Punjab  and Hidayatullah,  J.<\/a> in
\nSmt. Ujjam  Bai v.  State of  Uttar Pradesh<\/a>  (supra). Though
\nthere may  be some  trappings of  a court  and\tthe  section
\nitself\tmentions   the\tword   ‘court’,\t I   feel  that\t the
\nrequirements for  being a  court for  the purpose of Section
\n195(2)\thave  not  been\t satisfied.  The  intention  of\t the
\nlegislature in\tprescribing a  bar  when  an  offence  under
\nChapter XI  of I.P.C.  is committed,  that  is,\t when  false
\nevidence is  given or  offence\tagainst\t public\t justice  is
\ncommitted  is\tthat  the  court  should  decide  whether  a
\ncomplaint should be given for an offence committed before it
\nand if\tsatisfied should prefer the complaint itself. Before
\na court\t gives a  complaint, it\t will have to satisfy itself
\nthat a\tprima facie  case is  made out and that it is in the
\ninterest of  justice that  a complaint should be lodged. The
\npurpose, therefore,  is that  a private\t party should not be
\npermitted to  make a  complaint regarding offences committed
\nin or  in relation to court proceedings. In an investigation
\nby the\tpolice the complainant is only in the background. He
\nmight not  have mentioned  the name  of any  person as being
\ninvolved in  the crime.\t Taking all  the circumstances\tinto
\naccount, I  am, in the absence of the complainant, unable to
\nhold that  remand and  bail proceedings before cognizance of
\nthe offence  is taken could be held to be proceedings before
\na court\t bearing in mind the restricted meaning given to the
\nword ‘court’.\n<\/p>\n
     The second\t question is whether the charge of making of
\nthe false  report could be rightly held to be in relation to
\nproceedings in\tcourt. When  an information  is given  of  a
\ncommission of  a cognizable  offence, the  police register a
\ncase  and   start  investigation.   For\t  facilitating\t the
\ninvestigation provision\t for remand  is provided for. If the
\ninvestigation is  not completed\t within 24  hours the police
\nmay ask for further remand and the court may grant according
\nto provisions of section 167 of
\n737<\/span>
\nCriminal Procedure Code. At this stage though the remand and
\nbail proceedings  arise as a consequence of complaint given,
\nit cannot  be said  that it  is the direct result of a false
\nreport to  a court  for no  one might have been mentioned in
\nthe complaint  as a  suspect. Further,\tit will be seen that
\nthe complainant\t is not\t entitled to  appear  in  court\t and
\noppose grant  of bail.\tThe court dealing with the remand or
\nbail proceedings  cannot be  said to  fulfil the  conditions
\nlaid down  by Venkatarama  Ayyar  as  the  parties  are\t not
\nentitled as  a matter  of right\t to be\theard in  support of
\ntheir claim and adduce evidence in proof of it.\n<\/p>\n
     The Magistrate  dealing with  remand proceedings  or  a
\nbail petition  does not hear the complainant. He acts on the
\nmaterial that  is placed  before him  by the  police  during
\ninvestigation.\tThe   complainant  has\t no  opportunity  of
\nsubstantiating or  presenting his case before the Magistrate
\nat this\t stage. If  the action of the Magistrate in agreeing
\nwith  the   report  under  section  169\t Cr.  P.C.  and\t the
\nproceedings taken  during investigation\t by way of remand or
\nbail are  understood to\t be proceedings in or in relation to
\ncourt a complaint may be preferred by the Magistrate without
\ngiving an  opportunity to  the complainant  to\tsatisfy\t the
\nMagistrate about  the truth of his case. In this connection,
\nit is  useful to  refer to  section 476 of the Cr. P. C. The
\nsection provides  that when  any Civil,\t Revenue or Criminal
\nCourt is,  whether on  application made to it in this behalf
\nor otherwise,  of  opinion  that  it  is  expedient  in\t the
\ninterests of justice that an inquiry should be made into any
\noffence referred  to in section 195, sub-section (1), clause\n<\/p>\n
(b) or\tclause (c),  which appears to have been committed in
\nor in  relation to  a proceeding  in that  Court, such Court
\nmay, after  such preliminary  inquiry, if  any, as it thinks
\nnecessary, record  a finding  to  that\teffect\tand  make  a
\ncomplaint thereof in writing signed by the presiding officer
\nof the\tCourt, and shall forward the same to a Magistrate of
\nthe  first   class  having  jurisdiction.  Before  making  a
\ncomplaint a  preliminary inquiry  is contemplated. Normally,
\nit would  mean that  the person\t against whom a complaint is
\npreferred has  an opportunity to show why a complaint should
\nnot be\tpreferred against  him. These stages are not reached
\nin a  case when\t the Magistrate has still to take cognizance
\nof an  offence. The  restricted meaning given to the Code in
\nsection 195(2) Cr. P.C. read along with the conditions to be
\nspecified before  a complaint  is preferred  by\t the  court,
\ninclines me to hold that the proceedings before a Magistrate
\nin which  he agrees  with the  report by  the  police  under
\nsection 169, Criminal Procedure Code, and the proceedings in
\nremand or  bail applications  during investigation  will not
\namount to proceedings in or in relation to court.\n<\/p>\n
738<\/span><\/p>\n
     In the  result I  agree with  the High Court that there
\nwas no\tproceeding in  or  in  relation\t to  a\tcourt,\tand,
\ntherefore, section  195(1)(b) of  Criminal Procedure Code is
\nnot attracted. The appeal is dismissed.\n<\/p>\n
     KOSHAL, J.\t I have\t had the  advantage of going through
\nthe judgment  prepared by  my learned  brother, Kailasam, J.
\nHaving given  it my best consideration, I regret that I have
\nto differ with him.\n<\/p>\n
     2. The facts giving rise to this appeal lie in a narrow
\ncompass and  may be stated in brief. The appellant before us
\nis one\tKamlapati Trivedi  (hereinafter called\tTrivedi)  on
\nwhose complaint\t a case\t was registered\t under sections 147,
\n448 and\t 379 of\t the Indian  Penal Code\t at the Bally Police
\nStation\t on   the  18th\t April,\t 1970  against\tsix  persons
\nincluding   one\t   Satyanarayan\t  Pathak    (called   Pathak
\nhereinafter). Warrants\twere issued  for the  arrest of\t the
\naccused, all  of whom surrendered on the 6th of May, 1970 in
\nthe Court  of the Sub-Divisional Judicial Magistrate, Howrah
\n(referred  to\tlater  herein  as  SDJM)  who  who  was\t the
\nmagistrate having  jurisdiction\t and  who  passed  an  order
\nreleasing them on bail.\n<\/p>\n
     The police\t held  an  investigation  culminating  in  a
\nreport dated  the 25th\tof July, 1970 which was submitted to
\nthe  SDJM   under  section  173\t of  the  Code\tof  Criminal
\nProcedure, 1898\t (the Code,  for short). The contents of the
\nreport made  out the  complaint to  be false  and included a
\nprayer that  the accused  “may be released from the charge”.
\nOn the\t31st of\t July, 1970  the  SDJM,\t agreeing  with\t the
\nreport, passed an order discharging the accused.\n<\/p>\n
     On the  20th of  October, 1970 Pathak filed a complaint
\nbefore the  SDJM  accusing  Trivedi  of\t the  commission  of
\noffences under sections 211 and 182 of the Indian Penal Code
\nby reason  of the  latter having  lodged with the police the
\nfalse complaint\t dated the  18th  of  April,  1970.  Trivedi
\nappeared in  the Court\tof the SDJM on the 16th of November,
\n1970 in\t response to  a summons issued by the latter only in
\nrespect of  an offence under section 211 of the Indian Penal
\nCode and  was allowed  a fortnight to furnish security while
\nthe case itself was adjourned to the 10th of December, 1970.\n<\/p>\n
     It was then that Trivedi presented a petition dated the
\n23rd December,\t1970 to\t the High  Court at Calcutta praying
\nthat the  proceedings pending against him before the SDJM be
\nquashed inasmuch  as the  latter was  debarred\tfrom  taking
\ncognizance of  the offence  under section  211 of the Indian
\nPenal Code  in the  absence of a complaint in writing of the
\nSDJM himself in view of the provisions of clause (b) of sub-
\nsection (1) of section 195 of the Code. Sub-sections (1) and
\n(2) of\tthat  section  may  be\treproduced  here  for  ready
\nreference:\n<\/p>\n
739<\/span><\/p>\n
     195. (1) No Court shall take cognizance-\n<\/p><\/blockquote>\n
\t  (a) of  any offence  punishable under sections 172
\n     to\t 188  of  the  Indian  Penal  Code,  except  on\t the
\n     complaint in  writing of  the public servant concerned,
\n     or\t of   some  other  public  servant  to\twhom  he  is
\n     subordinate;\n<\/p><\/blockquote>\n
\t  (b) of  any offence  punishable under\t any of\t the
\n     following sections\t of the\t same Code, namely, sections
\n     193, 194,\t195, 196, 199, 200, 205, 206, 207, 208, 209,
\n     210, 211  and 228, when such offence is alleged to have
\n     been committed in, or in relation to, any proceeding in
\n     any Court,\t except on  the complaint in writing of such
\n     Court or  of some\tother Court  to which  such Court is
\n     sub-ordinate; or\n<\/p><\/blockquote>\n
\t  (c) of  any offence  described in  section 463  or
\n     punishable under  section 471,  section 475  or section
\n     476 of  the same  Code, when such offence is alleged to
\n     have been committed by a party to any proceeding in any
\n     Court in  respect of  a document  produced or  given in
\n     evidence in such proceeding, except on the complaint in
\n     writing of\t such Court, or of some other Court to which
\n     such Court is subordinate.\n<\/p><\/blockquote>\n
\t  (2) In clauses (b) and (c) of sub-section (1), the
\n     term “Court”  includes a  Civil, Revenue,\tor  Criminal
\n     Court,  but  does\tnot  include  a\t Registrar  or\tsub-
\n     Registrar under the Indian Registration Act, 1977.”<\/p><\/blockquote>\n
     It was  argued before  the High  Court that part of the
\nproceedings which  started with the registration of the case
\nby the\tpolice on the 18th of April, 1970 at the instance of
\nTrivedi and  culminated in the order dated the 31st of July,
\n1970 discharging  Pathak and his five co-accused constituted
\nproceedings before  a Court,  that the offence under section
\n211 of\tthe Indian  Penal Code\tattributed  to\tTrivedi\t was
\ncommitted in  or, in  any case, in relation to such part and
\ntherefore the  case against Trivedi fell within the ambit of
\nclause (b) above extracted. The argument did not find favour
\nwith the High Court and the learned Single Judge before whom
\nit was made rejected it with the following observations:\n<\/p>\n
     “The  police  submitted  a\t final\treport\tand  so\t the
\nMagistrate discharged  him from\t his bail bond but there was
\nno   criminal\t proceeding   before   the   Court   against
\nSatyanarayan. The  proceeding before  the  Court  becomes  a
\ncriminal proceeding  only when\ta Court takes cognizance and
\nnot before. Whatever the view of the other High Courts
\n740<\/span>
\nmay be,\t the consistent\t view of  this High Court is that so
\nlong as cognizance is not taken it cannot be said that there
\nwas a  proceeding pending  in the  Court in  respect of that
\noffence and since no proceeding was pending before the Court
\nsection 195 (1)(b) of the Code is not attracted.”\n<\/p>\n
     It is  against the\t order of  the High  Court (which is
\ndated the  18th of August, 1971) that Trivedi has instituted
\nthis appeal by special leave.\n<\/p>\n
     3. Before\tus the\targument which\twas put\t forward  on
\nbehalf of  Trivedi for\tthe consideration  of the High Court
\nhas been  repeated and\tit has been urged strenuously by his
\nlearned counsel\t that in  so far as the SDJM passed an order
\non the\t6th of\tMay, 1970  releasing him  on bail  and\tthen
\nanother on  the 31st of July, 1970 discharging him, the SDJM
\nacted judicially  and therefore\t as a  Court, that it cannot
\nbut be\theld that these orders were passed in proceedings in
\nrelation to  which the\toffence under  section\t211  of\t the
\nIndian Penal  Code was\talleged to  have been  committed and
\nthat consequently  the SDJM  had  no  jurisdiction  to\ttake
\ncognizance of that offence.\n<\/p>\n
     4. The points requiring determination therefore are:\n<\/p>\n
\t  (a) Whether  the SDJM\t acted as  a Court  when  he
\n     passed the\t orders dated  the 6th\tof May, 1970 and the
\n     31st of July, 1970 or any of them?\n<\/p>\n
\t  (b) If  the answer  to  question  (a)\t is  in\t the
\n     affirmative, whether  the offence\tunder section 211 of
\n     the Indian\t Penal Code  attributed to  Trivedi could be
\n     regarded as  having been  committed in  relation to the
\n     proceedings culminating  in either\t or both of the said
\n     orders?\n<\/p>\n
     5. In  finding an answer to question (a) I attach quite
\nsome importance\t to the provision of sections 6, 496 and 497
\nof the Code. These sections are extracted below:\n<\/p>\n
\t  “6.  Besides\t the  High   Court  and\t the  Courts
\n     constituted under\tany law other than this Code for the
\n     time being\t in force,  there shall\t be five  classes of
\n     Criminal Courts in India, namely:-\n<\/p><\/blockquote>\n
\t  I. Courts of Session:\n<\/p><\/blockquote>\n
\t  II. Presidency Magistrates:\n<\/p><\/blockquote>\n
\t  III. Magistrates of the first class:\n<\/p><\/blockquote>\n
\t  IV. Magistrates of the second class:\n<\/p><\/blockquote>\n
\t  V. Magistrates of the third class.”\n<\/p><\/blockquote>\n
741<\/span><\/p>\n
\t  “496. When  any person other than a person accused
\n     of a  non-bailable\t offence  is  arrested\tor  detained
\n     without warrant  by an  officer in\t charge of a police-
\n     station, or  appears or  is brought before a Court, and
\n     is prepared  at any  time while  in the custody of such
\n     officer or\t at any stage of the proceedings before such
\n     Court to  give bail,  such person\tshall be released on
\n     bail: Provided  that such officer or Court, if he or it
\n     thinks fit,  may, instead\tof  taking  bail  from\tsuch
\n     person, discharge\thim on\this executing a bond without
\n     sureties for his appearance as hereinafter provided :
\n\t  “Provided, further,  that nothing  in this section
\n     shall be  deemed to  affect the  provisions of  section
\n     107, sub-section (4), or section 117, sub-section (3).”
\n\t  “497. (1)  When any person accused of or suspected
\n     of\t the  commission  of  any  non-bailable\t offence  is
\n     arrested or  detained without  warrant by an officer in
\n     charge of\ta police  station, or  appears or is brought
\n     before a  Court, he  may be  released on  bail, but  he
\n     shall not\tbe so  released if  there appear  reasonable
\n     grounds for  believing that  he has  been guilty  of an
\n     offence punishable with death or imprisonment for life:
\n\t  “Provided that  the  Court  may  direct  that\t any
\n     person under  the age  of sixteen years or any woman or
\n     any sick or infirm person accused of such an offence be
\n     released on bail.\n<\/p><\/blockquote>\n
\t  (2) If  it appears to such officer or Court at any
\n     stage of  the investigation,  inquiry or  trial, as the
\n     case may  be, that there are not reasonable grounds for
\n     believing that  the accused  has committed non-bailable
\n     offence, but  that there  are  sufficient\tgrounds\t for
\n     further inquiry  into his\tguilt,\tthe  accused  shall,
\n     pending such  inquiry, be\treleased on bail, or, at the
\n     discretion of  such officer  or Court, on the execution
\n     by him of a bond without sureties for his appearance as
\n     hereinafter provided.\n<\/p><\/blockquote>\n
\t  “(3) An officer or a Court releasing any person on
\n     bail under\t sub-section (1)  or sub-section  (2)  shall
\n     record in writing his or its reason for so doing.
\n\t  “(3A) If, in any case triable by a Magistrate, the
\n     trial of  a person\t accused of any non-bailable offence
\n     is not concluded within a period of sixty days from the
\n     first date fixed
\n742<\/span>
\n     for taking\t evidence in the case, such person shall, if
\n     he is  in custody\tduring the whole of the said period,
\n     be\t released   on\tbail  to  the  satisfaction  of\t the
\n     Magistrate,  unless  for  reasons\tto  be\trecorded  in
\n     writing, the Magistrate otherwise directs.
\n     “(4) If, at any time, after the conclusion of the trial
\n     of a  person accused  of  a  non-bailable\toffence\t and
\n     before judgment  is delivered  the Court  is of opinion
\n     that there\t are reasonable\t grounds for  believing that
\n     the accused is not guilty of any such offence, it shall
\n     release the  accused, if  he  is  in  custody,  on\t the
\n     execution by  him of  a bond  without sureties  for his
\n     appearance to hear judgment delivered.
\n     “(5) A High Court or Court of Sessions and, in the case
\n     of a  person released  by itself  any other  Court\t may
\n     cause any\tperson who  has\t been  released\t under\tthis
\n     section to be arrested and may commit him to custody.”<\/p><\/blockquote>\n
     Magistrates are  specifically labelled as Courts by the
\nstatutory provisions  of section  6 and therefore have to be
\nregarded as  such. It is no doubt true that the Code assigns
\nto a  Magistrate various  functions which do not fall within
\nthe sphere  of judicial\t duties and  are, on the other hand,
\nfunctions of  an executive  nature such\t as the\t exercise of
\nsupervisory  jurisdiction   in\trelation   to  investigation
\ncarried out by the police or work done on the administrative
\nside; and  it may  plausibly be argued that in the discharge
\nof such\t functions a Magistrate does not act as a Court. But
\nthen in\t my opinion a Magistrate cannot but be regarded as a
\nCourt  when  he\t acts  judicially.  This  follows  from\t the
\nprovisions of  section 6  itself. The  Code does not contain
\nany provision to the effect that no functions performed by a
\nMagistrate  in\trelation  to  criminal\tproceedings  whether
\nhandled by him or dealt with by the police would be regarded
\nas functions  performed by a Court unless they are posterior
\nin point of time to the stage when he acts under section 190
\nof the\tCode. On  the contrary,\t sections 496  and 497 which
\nembrace bail  matters  specifically  describe  a  Magistrate
\nwhile dealing  therewith  as  a\t Court\tand  these  sections
\noperate fully  at all  stages of  a case including that when
\nthe investigation  has just started. There is nothing in the
\ncontext in  which the  word `Court’  is used  in  these\t two
\nsections and  section 195  which would provide an indication
\nthat it\t has been  used in two different senses therein, and
\nin such\t a situation  the legislature must be deemed to have
\nused it\t in one and the same sense wherever it occurs in the
\nCode. While  deciding the  question of\tbail,  therefore,  a
\nMagistrate must be held to be
\n743<\/span>
\nacting\tas   a\tCourt\tand  not   in  any  other  capacity,
\nirrespective of\t the stage  which the  case has\t reached  by
\nthen, that  is, whether\t it is\tstill under investigation by
\nthe police  or has  progressed to the stage of an inquiry or
\ntrial by  the Magistrate. It at once follows that the taking
\nof cognizance  of any  offence by a Magistrate under section
\n190 of\tthe Code  is not a condition precedent for him to be
\nregarded as a Court.\n<\/p>\n
     6. Nor  do\t I  feel  that\tthe  opinions  expressed  by
\nHalsbury and  Lord Sankey  lay down any different principle.
\nThose opinions appear to me to cover only cases of tribunals
\nwhich  perform\t quasi-judicial\t functions   but   are\t not
\nstatutorily recognised\tas `Court’.  At page 342 of Volume 9
\nof Halsbury’s  Laws of\tEngland (third\tedition) appears the
\nfollowing passage in Para 809 :\n<\/p>\n
\t  “Originally the  term “court”\t meant, among  other
\n     meanings, the  Sovereign’s palace;\t it has acquired the
\n     meaning of the place where justice is administered and,
\n     further, has  come to  mean the  persons  who  exercise
\n     judicial  functions   under  authority  derived  either
\n     immediately  or   mediately  from\tthe  Sovereign.\t All
\n     tribunals, however,  are not  courts, in  the sense  in
\n     which the term is here employed, namely, to denote such
\n     tribunals as  exercise  jurisdiction  over\t persons  by
\n     reason of\tthe sanction  of the  law, and not merely by
\n     reason of\tvoluntary submission  to their jurisdiction.
\n     Thus, arbitrators,\t committees of\tclubs, and the like,
\n     although they  may\t be  tribunals\texercising  judicial
\n     functions, are not “courts” in this sense of that term.
\n     On the  other hand,  a tribunal  may be  a court in the
\n     strict sense of the term although the chief part of its
\n     duties is\tnot judicial.  Parliament is  a\t court,\t its
\n     duties are\t mainly deliberative  and legislative  : the
\n     judicial duties  are only\tpart  of  its  functions.  A
\n     coroner’s court  is a true court although its essential
\n     function is investigation.”<\/p><\/blockquote>\n
     In para 810 the learned author proceeds to lay down the
\ncriteria which\tdetermine when\ta tribunal would be regarded
\nas a  Court. In\t his opinion,  the elements to be considered
\nare :\n<\/p>\n
\t  (1) the  requirement for a public hearing, subject
\n     to a power to exclude the public in a proper case, and
\n\t  (2) a\t provision that\t a member  of  the  tribunal
\n     shall not\ttake part  in any  decision in\twhich he  is
\n     personally interested,  or unless\the has\tbeen present
\n     throughout the proceedings.<\/p><\/blockquote>\n
744<\/span><\/p>\n
     The  learned   author   then   quotes   Lord   Sankey’s
\nobservations in\t Shell Co.  of\tAustralia  Ltd.\t v.  Federal
\nCommissioner of Taxation and then gives numerous examples of
\ntribunals which\t are not  regarded  as\tCourts.\t One  common
\nfeature of  such tribunals is that they are not described as
\nCourts by  statute and\tare charged  with the performance of
\nadministrative or  executive functions as distinguished from
\njudicial functions.\n<\/p>\n
     Paragraph 812 on page 344 of the same Volume deals with
\nthe subject of creation of Courts and lays down :\n<\/p>\n
\t  “Courts  are\tcreated\t by  the  authority  of\t the
\n     Sovereign as the fountain of justice. This authority is
\n     exercised either  by statute,  charter, letters patent,
\n     or Order  in Council. In some cases, a court is held by
\n     prescription, as  having existed  from time immemorial,
\n     with the  implication that\t there was  at some  time  a
\n     grant of  the Court  by the  Sovereign, which  has been
\n     lost.\n<\/p><\/blockquote>\n
\t  “An Act  of Parliament  is necessary\tto create  a
\n     court which  does not  proceed according  to the common
\n     law.”<\/p><\/blockquote>\n
     Reference may usefully be made to Section 6 of the same
\nChapter in which the above paragraphs occur. That Section is
\nheaded “Magistrates’ Courts”. The relevant part of paragraph
\n1041 with  which the  Section begins  is  to  the  following
\neffect:\n<\/p>\n
\t  “A magistrate’s  court consists  of a\t justice  or
\n     justices of  the peace acting under any enactment or by
\n     virtue of\this or\ttheir commission or under common law
\n     (otherwise than  as a  court or  committee\t of  quarter
\n     sessions or  a purely administrative tribunal), or of a
\n     stipendiary magistrate.”<\/p><\/blockquote>\n
     The combined  effect of  the various paragraphs forming
\npart of the treatise and noticed above would be that a Court
\nmay be\tcreated by  a statute  and that\t when such  a  Court
\nperforms judicial  functions, it  will be deemed to act as a
\nCourt and  further, that Magistrates’ Courts are regarded as
\nsuch   unless\tperforming   executive\t or   administrative
\nfunctions. That\t is how\t the position  stands in England and
\nthere is  nothing in  the case of Shell Company of Australia
\nLtd. v.\t Federal Commissioner of Taxation (supra) which runs
\nto the\tcontrary. It  may be  noted that  in that  case\t the
\nquestion for  decision was as to whether the Board of Review
\nwhich had  been constituted  under the Australian Income Tax
\nAssessment Act\tto review  the decisions of the Commissioner
\nof Taxation  was or  was not  a Court  and it  was  in\tthat
\ncontext that Lord Sankey expressed his opinion. Obviously he
\nwas
\n745<\/span>
\nnot dealing  with the functions of a tribunal which had been
\nstatutorily labelled as a Court.\n<\/p>\n
     7. What I have said of Lord Sankey’s opinion is true of
\nthe decisions  of this\tCourt in Virinder Kumar Satyawadi v.
\nThe State  of Punjab  and Smt.\tUjjam Bai<\/a>  v. State of Uttar
\nPradesh. In  the former\t the question for decision was as to
\nwhether a  returning officer discharging functions under the
\nRepresentation of  the People  Act, 1951  was a Court and in
\nanswering the  same the\t Court referred to the case of Shell
\nCompany\t of   Australia\t (supra)   and\tother\tEnglish\t and
\nAustralian authorities and then observed :\n<\/p>\n
\t  “It is  unnecessary to  traverse the\tsame  ground
\n     once again. It may be stated broadly that distinguishes
\n     a court  from a  quasi-judicial tribunal  is that it is
\n     charged with  a duty  to decide  disputes in a judicial
\n     manner  and   declare  the\t  rights  of  parties  in  a
\n     definitive judgment.  To decide  in a  judicial  manner
\n     involves that  the parties\t are entitled as a matter of
\n     right to  be heard\t in support  of their  claim and  to
\n     adduce evidence  in proof of it. And it also imports an
\n     obligation on  the part  of the authority to decide the
\n     matter on\ta consideration\t of the evidence adduced and
\n     in accordance  with  law.\tWhen  a\t question  therefore
\n     arises as\tto whether an authority created by an Act is
\n     a\tCourt\tas  distinguished   from  a   quasi-judicial
\n     tribunal, what  has to  be decided\t is  whether  having
\n     regard to\tthe provisions\tof the\tAct it possesses all
\n     the attributes of a Court.”<\/p><\/blockquote>\n
     In Ujjam  Bai’s case (supra) this Court was resolving a
\nquestion  as   to  whether  an\tofficer\t of  the  income-tax
\ndepartment was\ta Court and replied in the negative, broadly
\nfor the\t reason that even though taxing authorities follow a
\npattern of action which is considered judicial, they are not
\nconverted into\tCourts of  civil judicature  and that  their
\nactions are executive in nature.\n<\/p>\n
     Neither of these cases deals with an authority on which
\nthe status  of a Court is conferred by statute, nor with one
\nforming part of the judiciary, such as a Magistrate in whose
\ncase the  opinion of  this  Court  would  surely  have\tbeen
\ndifferent as  is apparent from the judgment of Hidayatullah,
\nJ., in\tUjjam Bai’s  case (supra) which quotes the following
\npassage from Gullapalli Nageswara v. State of Andhra Pradesh<\/a>
\n746<\/span>
\n\t  “The concept\tof a quasi-judicial act implies that
\n     the act  is not  wholly judicial,\tit describes  only a
\n     duty cast on the executive body or authority to conform
\n     to norms  of judicial procedure in performing some acts
\n     in exercise of its executive power.”\n<\/p>\n
and then proceeds :\n<\/p>\n
\t  “The taxing  departments are\tinstrumentalities of
\n     the State.\t They are not a part of the Legislature; nor
\n     are they  a part  of the judiciary. Their functions are
\n     the assessment  and collection  of taxes,\tand  in\t the
\n     process of\t assessing  taxes  they\t have  to  follow  a
\n     pattern of\t action, which\tis considered judicial. They
\n     are  not\tthereby\t converted   into  Courts  of  civil
\n     judicature. They  still remain the instrumentalities of
\n     the State\tand are\t within the definition of `State’ in
\n     Art. 12. In this view of the matter, their actions must
\n     be regarded,  in the ultimate analysis, as executive in
\n     nature, since their determinations result in the demand
\n     of tax  which neither the legislature nor the judiciary
\n     can collect.  Thus, the actions of these quasi-judicial
\n     bodies may be open to challenge on the ground of breach
\n     of fundamental rights.”<\/p><\/blockquote>\n
     It is  thus clear that the source of power exercised by
\nthe authority,\tthat is, whether it is an executive power or
\njudicial  power\t  would\t make  all  the\t difference  in\t the
\ndetermination of  the question\tas to  whether the authority
\nacts as\t a Court  or merely as a quasi-judicial tribunal not
\nfunctioning as\ta Court.  In this connection a reference may
\nalso be\t made to section 19 of the Indian Penal Code coupled
\nwith  illustration  (b)\t appended  thereto  and\t section  20
\nthereof :\n<\/p>\n
Section 19 :\n<\/p>\n
\t  “The word  “Judge” denotes  not only\tevery person
\n     who is officially designated as a Judge, but also every
\n     person.\n<\/p><\/blockquote>\n
\t  “Who is  empowered by\t law to\t give, in  any legal
\n     proceeding, civil\tor criminal,  a definitive judgment,
\n     or a  judgment which, if not appealed against, would be
\n     definitive, or  a judgment\t which if  confirmed by some
\n     other authority, would be definitive, or
\n\t  “who is  one of  a body  of persons, which body of
\n     persons is empowered by law to give such a judgment.”\n<\/p><\/blockquote>\n
747<\/span><\/p>\n
Illustration (b) :\n<\/p>\n
\t  “A Magistrate\t exercising jurisdiction  in respect
\n     of a  charge on  which he has power to sentence to fine
\n     or imprisonment, with or without appeal, is a Judge.”\n<\/p><\/blockquote>\n
Section 20 :\n<\/p>\n
\t  “The words  “Court of\t Justice” denote a Judge who
\n     is empowered  by law to act judicially alone, or a body
\n     of Judges\twhich is  empowered by law to act judicially
\n     as a  body, when such Judge or body of Judges is acting
\n     judicially.”<\/p><\/blockquote>\n
     Although we  are not  here\t concerned  with  the  terms
\n“Judge” and  “Court  of\t Justice”  properly  so-called,\t the
\nprovisions above  extracted do give a definite indication of
\nthe attributes of a Court as used in criminal law generally.
\nIt may\tbe noted that the Code and the Indian Penal Code are
\nthe main  statutes operating  in India\tin relation  to\t the
\ndispensation of\t criminal justice  and may  in\ta  sense  be
\nregarded as  supplementary to  each other,  the Code forming
\nthe procedural\tlink of\t the same  chain of which the Indian
\nPenal Code  constitutes the  link of  substantive law.\tThis
\nrelation between  the two enactments is further strengthened
\nby the\tprovisions contained in sub-section (2) of section 4
\n(the definition clause) of the Code which runs thus :\n<\/p>\n
\t  “4 (2)  : Words  which refer\tto acts done, extend
\n     also to illegal omissions; and
\n\t  “all words and expressions used herein and defined
\n     in the  Indian Penal Code, and not hereinabove defined,
\n     shall be  deemed  to  have\t the  meanings\trespectively
\n     attributed to them by the Code.”<\/p><\/blockquote>\n
     It is  no doubt  true that\t the  expression  “Court  of
\nJustice” does  not appear  to have  been used  in  the\tCode
\n(although the  expression  “Judge”  does  find\ta  place  in
\nsection 197  thereof), but  then there is no escape from the
\nconclusion that\t when a “Judge” (including a Magistrate) who
\nis empowered  to act  judicially and does so act constitutes
\nnot merely a Court but a Court of Justice.\n<\/p>\n
     8. Now  I proceed\tto examine  the relevant  provisions
\ncontained in  Chapter XIV  of the  Code\t which\tcarries\t the
\ncaption “INFORMATION  TO THE  POLICE  AND  THEIR  POWERS  TO
\nINVESTIGATE”. It  may be  stated at  once that\talthough the
\nChapter is  headed as  stated, it is not confined to matters
\nwhich are  strictly concerned  with the\t investigation stage
\nbut  also  deals  with\tsituations  which  arise  after\t the
\ninvestigation has  been finalized.  Reference may be made in
\nthis behalf  to subsection  (2) of  section 172\t of the Code
\nreads thus :\n<\/p>\n
748<\/span><\/p>\n
\t  “Any Criminal\t Court\tmay  send  for\tthe  police-
\n     diaries of a case under inquiry or trial in such Court,
\n     and may  use such diaries, not as evidence in the case,
\n     but to  aid it  in such  inquiry or  trial. Neither the
\n     accused nor  his agents  shall be\tentitled to call for
\n     such diaries,  nor shall  he or they be entitled to see
\n     them merely  because they are referred to by the Court,
\n     but, if  they are\tused by\t the police-officer who made
\n     them, to  refresh his memory, or if the Court uses them
\n     for the  purpose of  contradicting such police-officer,
\n     the  provisions  of  the  Indian  Evidence\t Act,  1872,
\n     section 161  or section  145, as the case may be, shall
\n     apply.”\n<\/p><\/blockquote>\n
     The sub-section  clearly deals  with the use of police-\n<\/p><\/blockquote>\n
diaries at  an inquiry or trial which a Magistrate holds not
\nin his\tadministrative or executive capacity but undoubtedly
\nas a  Court. The  caption of  the Chapter  therefore is\t not
\ndecisive  of   the  question  as  to  whether  a  particular
\nprovision contained  therein is\t limited to  the supervisory
\njurisdiction  of   the\tMagistrate   in\t relation   to\t the
\ninvestigation being  conducted by  the police  or deals with
\nhis judicial functions as a Court.\n<\/p>\n
     The contents  of sections\t169, 170 and 173 of the Code
\nmay now be scrutinised. They are re-produced below :\n<\/p>\n
\t  “169.\t If,   upon  an\t  investigation\t under\tthis
\n     Chapter, it  appears to  the officer  in charge  of the
\n     police-station or\tto  the\t police-officer\t making\t the
\n     investigation that\t there is not sufficient evidence or
\n     reasonable\t ground\t  of  suspicion\t  to   justify\t the
\n     forwarding of the accused to a Magistrate, such officer
\n     shall, if such person is in custody, release him on his
\n     executing a  bond, with  or without  sureties, as\tsuch
\n     officer may direct, to appear, if and when so required,
\n     before a Magistrate empowered to take cognizance of the
\n     offence on\t a police-report  and to  try the accused or
\n     commit him for trial.”\n<\/p><\/blockquote>\n
\t  “170. (1)  If, upon  an investigation\t under\tthis
\n     Chapter, it  appears to  the officer  in charge  of the
\n     police-station that  there is  sufficient\tevidence  or
\n     reasonable ground\tas  aforesaid,\tsuch  officer  shall
\n     forward the  accused  under  custody  to  a  Magistrate
\n     empowered to  take cognizance  of the  offence  upon  a
\n     police-report and\tto try the accused or commit him for
\n     trial or, if the offence is bailable and the accused is
\n     able to give security, shall take security from him for
\n     his appearance  before such  Magistrate on\t a day fixed
\n     and for  his attendance  from day\tto day\tbefore\tsuch
\n     Magistrate until otherwise directed.”\n<\/p><\/blockquote>\n
749<\/span><\/p>\n
\t  “(2) When  the officer  in  charge  of  a  police-
\n     station forwards  an accused  person to a Magistrate or
\n     take security for his appearance before such Magistrate
\n     under this\t section, he  shall send  to such Magistrate
\n     any weapon\t or other article, which it may be necessary
\n     to\t produce   before  him,\t  and  shall   require\t the
\n     complainant (if  any) and\tso many\t of the\t persons who
\n     appear to\tsuch  officer  to  be  acquainted  with\t the
\n     circumstances of the case as he may think necessary, to
\n     execute a\tbond to\t appear\t before\t the  Magistrate  as
\n     thereby directed and prosecute or give evidence (as the
\n     case may  be) in  the matter  of the charge against the
\n     accused.\n<\/p><\/blockquote>\n
\t  “(3) If  the Court  of the  District Magistrate or
\n     Sub-divisional Magistrate\tis mentioned  in  the  bond,
\n     such Court\t shall be held to include any Court to which
\n     such Magistrate  may refer\t the  case  for\t inquiry  or
\n     trial, provided  reasonable notice of such reference is
\n     given to such complainant or persons.”
\n\t  “173. (1) : Every investigation under this Chapter
\n     shall be  completed without  unnecessary delay, and, as
\n     soon as  it is  completed, the officer in charge of the
\n     police-station shall-\n<\/p><\/blockquote>\n
\t  “(a) forward\tto a  Magistrate empowered  to\ttake
\n     cognizance of  the offence on a police-report a report,
\n     in the form prescribed by the State Government, setting
\n     forth the\tnames of  the parties,\tthe  nature  of\t the
\n     information and  the names of the persons who appear to
\n     be acquainted  with the  circumstances of the case, and
\n     stating whether  the accused  (if\tarrested)  has\tbeen
\n     forwarded in  custody, or has been released on his bond
\n     and, if so, whether with or without sureties, and
\n\t  “(b)\tcommunicate,   in  such\t manner\t as  may  be
\n     prescribed by the State Government, the action taken by
\n     him to  the person,  if any,  by whom  the\t information
\n     relating to  the commission  of the  offence was  first
\n     given.\n<\/p><\/blockquote>\n
\t  “(2) Where  a superior  officer of police has been
\n     appointed under  section 158,  the report shall, in any
\n     case in  which  the  State\t Government  by\t general  or
\n     special order  so directs,\t be submitted  through\tthat
\n     officer,  and   he\t may,  pending\tthe  orders  of\t the
\n     Magistrate, direct the officer in charge of the police-
\n     station to make further investigation.
\n\t  “(3) Whenever\t it appears  from a report forwarded
\n     under this\t section that  the accused has been released
\n     on his bond,
\n750<\/span>
\n     the Magistrate  shall make such order for the discharge
\n     of such bond or otherwise as he thinks fit.
\n\t  “(4) After  forwarding a report under this section
\n     the officer  in charge  of\t the  police-station  shall,
\n     before  the  commencement\tof  the\t inquiry  or  trial,
\n     furnish or\t cause to  be furnished to the accused, free
\n     of cost,  a copy  of the  report forwarded\t under\tsub-
\n     section  (1)   and\t of  the  first\t information  report
\n     recorded under  section 154  and all other documents or
\n     relevant extracts\tthereof, on  which  the\t prosecution
\n     proposes  to   rely,  including   the  statements\t and
\n     confessions, if  any recorded under section 164 and the
\n     statements recorded  under sub-section  (3) of  section
\n     161 of all the persons whom the prosecution proposes to
\n     examine as its witnesses.\n<\/p><\/blockquote>\n
\t  “(5) Notwithstanding\tanything contained  in\tsub-
\n     section (4),  if the  police-officer is of opinion that
\n     any part  of any  statement recorded  under sub-section
\n     (3) of  section 161  is not  relevant to  the  subject-
\n     matter of\tthe inquiry  or trial or that its disclosure
\n     to the  accused is\t not essential\tin the\tinterests of
\n     justice and  is inexpedient in the public interests, he
\n     shall exclude  such part from the copy of the statement
\n     furnished to  the accused\tand in such a case, he shall
\n     make a report to the Magistrate stating his reasons for
\n     excluding such part :\n<\/p><\/blockquote>\n
\t  “Provided, that at the commencement of the inquiry
\n     or trial, the Magistrate shall, after perusing the part
\n     so excluded  and considering  the report of the police-
\n     officer, pass such orders as he thinks fit and if he so
\n     directs, a copy of the part so excluded or such portion
\n     thereof, as he thinks proper, shall be furnished to the
\n     accused.”<\/p><\/blockquote>\n
     Section 169  and 170  do not  talk of the submission of
\nany report by the police to the Magistrate, although they do
\nstate what  the police\thas to\tdo short  of such submission
\nwhen it\t finds at  the conclusion  of the  investigation (1)
\nthat there  is not  sufficient evidence or reasonable ground
\nof suspicion  to justify  the forwarding of the accused to a
\nMagistrate  (section  169)  (2)\t that  there  is  sufficient
\nevidence or reasonable ground as aforesaid (section 170). In
\neither case  the  final\t report\t of  the  police  is  to  be
\nsubmitted to the Magistrate under sub-section (1) of section\n<\/p>\n
173. Sub-section  (3) of  that section further provides that
\nin the\tcase of\t a report by the police that the accused has
\nbeen released  on his bond (which is the situation envisaged
\nby section 169), the
\n751<\/span>
\nMagistrate shall  make “such order for the discharge of such
\nbond or\t otherwise as  he thinks  fit”.\t Now  what  are\t the
\ncourses open  to the Magistrate in such a situation? He may,
\nas held\t by this  Court in Abhinandan Jha & Others v. Dinesh
\nMishra.<\/a>\n<\/p>\n
\t  (1)  agree with  the report of the police and file
\n\t       the proceedings, or
\n\t  (2)  not agree  with the  police  report  and\t (a)
\n\t       order further investigation, or (b) hold that
\n\t       the evidence  is sufficient  to\tjustify\t the
\n\t       forwarding of  the accused  to the Magistrate
\n\t       and take cognizance of the offence complained
\n\t       of.\n<\/p>\n
     The appropriate  course has  to be decided upon after a
\nconsideration of  the report and the application of the mind
\nof the\tMagistrate to  the contents  thereof. But  then\t the
\nproblem to  be solved  is whether  the order  passed by\t the
\nMagistrate pertains  to his  executive or judicial capacity.
\nIn my  opinion, the  only order\t which can  be\tregarded  as
\nhaving been  passed by the Magistrate in his capacity as the
\nsupervisory  authority\tin  relation  to  the  investigation
\ncarried out by the police is the one covered by the course 2\n<\/p>\n
(a). The order passed by the Magistrate in each of the other
\ntwo courses,  that is, (1) and 2(b), follows a conclusion of
\nthe investigation  and is  a judicial  order determining the
\nrights of  the parties\t(the State  on the  one hand and the
\naccused on the other) after the application of his mind. And
\nif that\t be so,\t the order  passed by  the Magistrate in the
\nproceeding before us must be characterised as a judicial act
\nand therefore as one performed in his capacity as a Court.\n<\/p>\n
     9. The  reasons which have weighed with me in coming to
\nthe conclusion\tarrived at in the last paragraph are equally
\napplicable to  the consideration  of the question whether an
\norder  of   bail  passed  by  a\t Magistrate  calls  for\t the
\nperformance by\thim of his judicial functions. Such an order
\nalso decides  the rights of the State and the accused and is
\nmade by the Magistrate after the application of his mind and
\ntherefore in  the discharge  of his  judicial duties,  which
\nfactor constitutes it an act of a Court.\n<\/p>\n
     10. For  a tribunal  to be acting as a Court, it is not
\nnecessary that\tthe parties  must have a right of hearing or
\nadducing evidence  at every  stage of the proceedings before
\nit. This  is specially true of Courts constituted as such by
\nthe legislature. Reference may here be made to interlocutory
\norders issuing temporary injunctions or staying
\n752<\/span>
\nproceedings in\ta subordinate  Court or\t dispossession of  a
\nparty by  Civil Courts\tat the\tinstance of  a plaintiff  or
\nappellant and  in the  absence of  the opposite\t party which
\ncomes into  the picture\t later on  after it is served with a
\nnotice. And  even subsequent  to the appearance of the party
\nadversely affected,  the existence  of a  prima\t facie\tcase
\nwould till  the scales\tagainst it so that the order earlier
\npassed in  favour of  the other\t party is confirmed till the
\nconclusion of  the case\t on merits, even though the case may
\nfinally be  decided otherwise  and the\tinterlocutory  order
\nfound to  be unjust  and then vacated. And yet it can hardly
\nbe argued  that the  presiding officer of the Court does not
\nact as a Court when passing such an order. Really, the right
\nto adduce  evidence  and  be  heard  is\t to  be\t taken\tinto
\nconsideration  as  being  available  at\t one  stage  of\t the
\nproceedings or\tthe other.  Thus in  the case  of  an  order
\npassed by  a Magistrate under sub-section (3) of section 173
\nof the\tCode in\t agreement with\t the police  report does not
\ncall for  any hearing  or the  production of any evidence on
\nthe part  of the  accused, as  it goes in his favour. If the
\nMagistrate, on\tthe other  hand, disagrees  with the  report
\nsubmitted by the police and takes cognizance of the offence,
\nthe accused comes into the picture and thereafter shall have
\nthe right  to be  heard and to adduce evidence in support of
\nhis innocence.\tViewed in this context, all orders passed by
\na Magistrate  acting judicially\t (such as orders of bail and
\nthose passed under subsection (3) of section 173 of the Code
\ndischarging an\taccused or  orders taking  cognizance of the
\noffence complained  of) are parts of an integral whole which
\nmay end\t with a\t definitive judgment  after an\tinquiry or a
\ntrial,\tor  earlier  according\tto  the\t exigencies  of\t the
\nsituation  obtaining   at  a  particular  stage,  and  which
\ninvolves, if  need be,\tthe adducing  of  evidence  and\t the
\ndecision of  the Magistrate on an appreciation thereof. They
\ncannot\tbe   viewed  in\t isolation  and\t given\ta  character
\ndifferent from the entire judicial process of which they are
\nintended to form a part.\n<\/p>\n
     11. In  the view  that I have taken of the matter, I do
\nnot consider  it necessary  to go  into the  details of\t the
\nconflict of  opinion amongst  the High\tCourts in  India  in
\nrelation there to but I would touch briefly thereupon. In J.
\nD. Boywalla  v. Sorab  Rustomji\t Engineer  Beaumont,  C.  J.
\nspeaking for himself and Macklin, J., emphatically held that
\na Magistrate  while passing  a order  releasing\t an  accused
\nperson on  bail or  discharging him in pursuance of a report
\nsubmitted by  the police to the effect that the evidence was
\ninsufficient to\t sustain the  charge,  acts  judicially\t and
\ntherefore as a Court within the meaning of that term as used
\nin clause (b) of sub-section (1) of section 195 of the Code.
\nThat decision was followed by a Division Bench consis-\n<\/p>\n
753<\/span><\/p>\n
ting of\t Shah, C. J., and Baxi, J., in State v. Vipra Khimji
\nGangaram in so far as an order discharging an accused person
\nas aforesaid  is concerned. Beaumont, C. J.’s view in regard
\nto orders  of bail  was accepted  as correct by M. C. Desai,
\nC.J., and Mishra, J., in Badri v. State.\n<\/p>\n
     These three  decisions, in\t my opinion,  lay  down\t the
\ncorrect law  on the  point and\tthe view  expressed  to\t the
\ncountry by the Madras, Calcutta and Patna High Court as also
\nby a  Full Bench  of the  Allahabad High Court in Hanwant v.
\nEmperor and  by a  Full Bench  of the  Lahore High  Court in
\nEmperor v.  Hyat Fateh\tDin merits rejection for the reasons
\nstated above.\n<\/p>\n
     12. In  so far  as this  Court is\tconcerned, the point
\ndebated before\tus has\tnot been  the subject  matter of any
\ndecision and was expressly left open in M. L. Sethi v. R. P.
\nKapur &\t Anr. In<\/a> that case the appellant had lodged a report
\nwith  the  police  charging  the  respondents  with  certain
\ncognizable offences.  While the\t police\t were  investigating
\ninto the  report, the  respondent filed\t a complaint  in the
\nMagistrate’s Court alleging that the appellant had committed
\nan offence  under section  211 of  the Indian  Penal Code by
\nfalsely charging  the respondent  with having  committed  an
\noffence. The  Magistrate took cognizance of the respondent’s
\ncomplaint under section 190 of the Code. At that stage there
\nwere no\t proceedings in\t any Court  nor\t any  order  by\t any
\nMagistrate for\tarrest, remand\tor bail of the respondent in
\nconnection with the appellant’s report to the police. Later,
\nhowever, the  police arrested  the respondent  in connection
\nwith the appellant’s report and filed a charge sheet against
\nhim,  but   the\t case\tended  in  an  order  of  discharge.
\nThereafter, the\t appellant raised  an objection in the Court
\nof the\tMagistrate to  the effect  that\t cognizance  of\t the
\noffence under section 211 of the Indian Penal Code could not
\nbe taken  in view  of the  provisions of  clause (b) of sub-
\nsection (1)  of section\t 195 of\t the  Code.  The  Magistrate
\nrejected the  contention and  the order was confirmed by the
\nSessions Court\tand the\t High Court.  While  dismissing\t the
\nappeal, this  Court held  that the  complaint filed  by\t the
\nrespondent was\tcompetent and  that clause (b) aforesaid did
\nnot stand in the way of the Magistrate taking cognizance, in
\nas much\t as, there  had been  no  proceedings  of  any\tkind
\nwhatsoever before  the Magistrate  in relation to the report
\nlodged by  the appellant  with the police till the complaint
\nwas
\n754<\/span>
\nfiled by  the respondent.  Reliance was\t placed on behalf of
\nthe appellant in that case on Badri vs. State (supra) and J.
\nD. Boywalla  v. Sorab  Rustomji\t Engineer  (supra)  but\t the
\npoints decided\tin those cases were held not to arise in the
\ncase  then   before  the  Court\t which\tmade  the  following
\nobservations in relation thereto :\n<\/p>\n
\t  “In the  case of Badri vs. State, where an offence
\n     under section  211, I.P.C.,  was alleged  to have\tbeen
\n     committed by  the person  making a false report against
\n     the complainant  and others  to the police, it was held
\n     that it  was an  offence  in  relation  to\t the  remand
\n     proceedings  and\tthe  bail   proceedings\t which\twere
\n     subsequently taken\t before a  Magistrate in  connection
\n     with that\treport to  the police,\tand, therefore,\t the
\n     case was  governed by  section 195\t (1) (b), Cr. P. C.,
\n     and no  cognizance of the offence could be taken except
\n     on a  complaint by\t the Magistrate\t who held the remand
\n     and bail  proceedings. We\tdo not consider it necessary
\n     to express\t any opinion  whether the  remand  and\tbail
\n     proceedings before\t Magistrate  could  be\theld  to  be
\n     proceedings in  a\tCourt,\tnor  need  we  consider\t the
\n     question whether  the charge  of making  of  the  false
\n     report could be rightly held to be in relation to those
\n     proceedings. That\taspect need  not detain us, because,
\n     in the  case before  us, the  facts are  different. The
\n     complaint for the offence under section 211, I.P.C. was
\n     taken cognizance  of  by  the  Judicial  Magistrate  at
\n     Chandigarh\t at   a\t stage\t when  there   had  been  no
\n     proceedings  for\tarrest,\t remand\t  or  bail   of\t the
\n     respondent and the case was still entirely in the hands
\n     of the  police. There  was, in  fact, no  order by\t any
\n     Magistrate in the proceedings being taken by the police
\n     on the  report lodged  by the appellant up to the stage
\n     when the question of applying the provisions of section
\n     195 (1)(b),  Cr. P.C.  arose. These two cases are also,
\n     therefore, of  no assistance  to the  appellant. On the
\n     same ground,  the decision of the Bombay High Court, in
\n     J. D.  Boywalla vs.  Sorab Rustomhi  Engineer  is\talso
\n     inapplicable, because  in that  case also\torders\twere
\n     passed by\ta Magistrate on the final report made by the
\n     police after  investigation of  the facts in the report
\n     in respect\t of which  the complaint  under section 211,
\n     I.P.C. was sought to be filed.”\n<\/p><\/blockquote>\n
\t  13. In another part of the judgment deciding M. L.\n<\/p><\/blockquote>\n
Sethi v.  R. P.\t Kapur (supra) this Court disagreed with the
\nview expressed in Ghulam
\n755<\/span>
\nRasul v.  Emperor wherein  Blacker, J.,\t made the  following
\nobservation :\n<\/p>\n
\t  “I am clear that the words in this sub-section “in
\n     relation to  any proceedings in any Court” apply to the
\n     case of  a false  report or  a false  statement made an
\n     investigation by  the police  with the  intention\tthat
\n     there shall  in consequence  of this  be a trial in the
\n     criminal Court, and I find support for this view in the
\n     case reported as 1929 Sind 132 (1)”.<\/p><\/blockquote>\n
     This view\tof Blacker,  J., was  repelled by this Court
\nthus :\n<\/p>\n
\t  “The decision\t in the\t words in  which the learned
\n     Judge expressed himself appears to support the argument
\n     of learned\t counsel for  the appellant  in the  present
\n     case but  we think\t that very  likely in that case, the
\n     learned Judge  was influenced by the circumstances that
\n     the case  had  been  reported  by\tthe  police  to\t the
\n     Magistrate for  cancellation. He  appears to  have held
\n     the view  that the Magistrate having passed an order of
\n     cancellation,  it\twas  necessary\tthat  the  complaint
\n     should be\tfiled by the Magistrate, because section 195
\n     (1) (b)  had become  applicable. If  the learned  Judge
\n     intended to say that without any proceeding being taken
\n     by the Magistrate in the case which was investigated by
\n     the police,  it was  still essential  that a  complaint
\n     should be\tfiled by  the Magistrate  simply  because  a
\n     subsequent\t   proceeding\t  following    the    police
\n     investigation was\tcontemplated, we  consider that\t his
\n     decision cannot be accepted as correct.”<\/p><\/blockquote>\n
     These observations\t cannot be  held to  mean that if an
\norder of  cancellation of a case has actually been passed by
\na Magistrate  in agreement  with the report of the police to
\nthe effect that no sufficient evidence was available against
\nthe accused,  such order could not be regarded as a judicial
\nproceeding and\tthe Magistrate passing it could not be given
\nthe status  of a  Court. This  is  apparent  from  the\tlast
\nsentence of the passage just above extracted which indicates
\nthat all  that was  meant was  that if Blacker, J., meant to
\nsay that  even though no proceeding at all had been taken by
\nthe Magistrate, clause (b) of sub-section (1) of section 195
\nof the\tCode would  be attracted  merely for the reason that
\nthe police  had held an investigation which would at a later
\npoint  of   time  result   in  any  proceedings\t before\t the
\nMagistrate this Court could not agree with him. Another fact
\nwhich may  be noted  in this  connection is that judgment in
\nGhulam\tRasul\tvs.  Emperor   (supra)\tdoes  not  state  in
\nunmistakable terms that any order
\n756<\/span>
\nof cancellation\t of the\t case was  passed by  the  concerned
\nMagistrate and\tall that is mentioned is that the police had
\nreported the  case for\t“cancellation”, which  may well mean
\nthat really  no order  of cancellation had in fact been made
\nby the Magistrate.\n<\/p>\n
     14. As  the order releasing Trivedi on bail and the one
\nultimately discharging\thim of\tthe  offence  complained  of
\namount to proceedings before a Court, all that remains to be
\nseen is\t whether the offence under section 211 of the Indian
\nPenal Code  which is  the subject  matter of  the  complaint
\nagainst Trivedi\t can be\t said to  have\tbeen  committed\t “in
\nrelation to”  those proceedings.  Both the  orders  resulted
\ndirectly from  the information\tlodged by  Trivedi with\t the
\npolice against\tPathak and  in this  situation there  is  no
\ngetting out  of the conclusion that the said offence must be
\nregarded as  one committed in relation to those proceedings.
\nThis  requirement  of  clause  (b)  aforementioned  is\talso
\ntherefore fully satisfied.\n<\/p>\n
     15. For  the reasons  stated, I hold that the complaint
\nagainst Trivedi\t is in respect of an offence alleged to have
\nbeen committed in relation to a proceeding in Court and that
\nin taking  cognizance of  it the SDJM acted in contravention
\nof the bar contained in the said clause (b), as there was no
\ncomplaint in  writing either  of the  SDJM or  of a superior
\nCourt. In  the result,\ttherefore, I  accept the appeal and,
\nsetting aside  the  order  of  the  High  Court,  quash\t the
\nproceedings taken by the SDJM against Trivedi.\n<\/p>\n
\t\t\t   ORDER
\n     In accordance  with the  opinion of  the majority,\t the
\nappeal is  allowed, the order of the High Court is set aside
\nand the\t proceedings taken  by the  Sub-Divisional  Judicial
\nMagistrate against  the appellant,  Kamlapati  Trivedi,\t are
\nquashed.\n<\/p>\n
N.V.K.\t\t\t\t\t     Appeal allowed.\n757<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kamlapati Trivedi vs State Of West Bengal on 13 December, 1978 Equivalent citations: 1979 AIR 777, 1979 SCR (2) 717 Author: P Kailasam Bench: Kailasam, P.S. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-104841","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKamlapati Trivedi vs State Of West Bengal on 13 December, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kamlapati-trivedi-vs-state-of-west-bengal-on-13-december-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamlapati Trivedi vs State Of West Bengal on 13 December, 1978 - 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