{"id":258321,"date":"1966-09-23T00:00:00","date_gmt":"1966-09-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-l-sethi-vs-r-p-kapur-anr-on-23-september-1966"},"modified":"2015-08-03T07:17:34","modified_gmt":"2015-08-03T01:47:34","slug":"m-l-sethi-vs-r-p-kapur-anr-on-23-september-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-l-sethi-vs-r-p-kapur-anr-on-23-september-1966","title":{"rendered":"M. L. Sethi vs R. P. Kapur & Anr on 23 September, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. L. Sethi vs R. P. Kapur & Anr on 23 September, 1966<\/div>\n
Equivalent citations: 1967 AIR 528, 1967 SCR (1) 520<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nM. L. SETHI\n\n\tVs.\n\nRESPONDENT:\nR. P. KAPUR & ANR.\n\nDATE OF JUDGMENT:\n23\/09\/1966\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nRAMASWAMI, V.\nDAYAL, RAGHUBAR\n\nCITATION:\n 1967 AIR  528\t\t  1967 SCR  (1) 520\n CITATOR INFO :\n F\t    1969 SC 355\t (7)\n F\t    1971 SC1708\t (12)\n D\t    1979 SC 777\t (15,18,20,36,37)\n R\t    1981 SC  22\t (13)\n\n\nACT:\nCode  of Criminal Procedure (Act 5 of 1898),  s.  195(1)(b)-\nComplaint  to  Magistrate of offence under  s.\t211,  Indian\nPenal Code<\/a>-Cognizance, when barred.\n\n\n\nHEADNOTE:\nThe  appellant lodged a report with the police charging\t the\nrespondent with certain cognizable offences on 10th December\n1958.  While the police were investigating into the  'report\nthe respondent filed a complaint in the Magistrate Is Court,\non 11th April 1959 alleging that the appellant had committed\nan  offence  under  s. 211<\/a>, Indian Penal  Code<\/a>,\t by  falsely\ncharging  the respondent with having committed\tan  offence.\nThe Magistrate took cognizance of the respondent's complaint\nunder s. 190<\/a> Criminal Procedure Code.  At that stage., there\nwere  no  proceedings  in any court nor\t any  order  by\t any\nMagistrate  for arrest, remand or bail of the respondent  in\nconnection with the appellants report to the police.  Later,\non  18th  July 1959 the police arrested\t the  respondent  in\nconnection  with the appellant's report and filed  a  charge\nsheet  against\thim,  but  the case ended  in  an  order  of\ndischarge.    Thereafter,  the\tappellant  applied  to\t the\nMagistrate's  court  praying  that the court  may  not\ttake\ncognizance  of\tthe  complaint to the  court  filed  by\t the\nrespondent  against  the  appellant,  on  the  ground  that,\ncognizance  of an offence under s. 211<\/a> I.P.C. could  not  be\ntaken  in view of the provisions contained in  s.  195(1)(b)<\/a>\nCr.P.C. The magistrate rejected the contention and the order\nwas confirmed by The session court and the high Court.\nIn appeal to this Court,\nHELD:  The complaint filed by the respondent  was  competent\nand the Magistrate was not barred from taking cognizance  of\nit  by\tthe provisions of s. 195<\/a> ( 1) (b) Cr.P.C<\/a>.;  and,  in\ntaking\tcognizance  of\tit he  only  exercised\tjurisdiction\nrightly vested in him. [542 A-B]\n(i)  When  a Magistrate is taking cognizance  under  s.\t 190<\/a>\nCr.P.C.\t he must examine the facts of the  complaint  before\nhim  and  determine whether his power of  taking  cognizance\nunder  the section has or has not been taken away  under  S.\n195(1)<\/a>\tCr.P.C.\t , In the case of an offence  under  s.\t 211<\/a>\nI.P.C., s. 195(1)(b)<\/a>, Cr.P.C<\/a>., provides that no court  shall\ntake  cognizance of it when such offence is alleged to\thave\nbeen committed in, or in relation to, any proceeding in\t any\ncourt,\texcept on the complaint in writing of such court  or\nof  some  other court to which such  court  is\tsubordinate.\nThat is, s. 195(1)<\/a>(b ) Cr.P.C<\/a>. bars taking cognizance if all\nthe  following\tcircumstances exist, namely,  (i)  that\t the\noffence in respect of which the case is brought falls  under\ns.  211 I.P.C<\/a>. (ii) that there -should be a proceeding in  a\ncourt,\tand  (iii) that the allegation should  be  that\t the\noffence under s. 211<\/a> I.P.C. was committed in, or in relation\nto  such a proceeding.\tWhen examining the question  whether\nthere  is any proceeding in any court, three situations\t can\nbe envisaged:(a) There may be no proceeding in any court at\nall;  (b)  a.proceeding in a court may actually\t be  pending\nwhen  cognizance  is  taken of the  offence  under  S-.\t 211\nI.P.C<\/a>., and (c) though there may be no proceeding pending in\na court, there may have been a proceeding which had  already\nconcluded and the offence under s. 211<\/a> may\n521\nbe  alleged  to have been committed in, or in  relation\t to,\nthat  proceeding.  In cases (b) and (c), the bar  to  taking\ncognizance  under  s.  195(1)<\/a> (b) Cr.P.C<\/a>.  would  come\tinto\noperation.  In case (a), when there is no proceeding pending\nin any court at all at the time when the applicability of S.\n195(1)<\/a> (b), Cr.P.C<\/a>. has to be determined, nor has there been\nany  earlier proceeding which may have been concluded..\t the\nsub-,section  would  not  apply, and in\t such  a  case,\t the\nMagistrate  would  be competent to take\t cognizance  of\t the\noffence under s. 211<\/a> I.P.C., if his jurisdiction is  invoked\nin  the\t manner laid down in s. 190<\/a>  of\t Criminal  Procedure\nCode. [526 F-G; 527 B, G-H, 528 E-F; 529 C-E, G-H]\nCaselaw considered.\n(ii)There  is nothing in the language of the sub-section  to\nindicate that theLegislature also intended to lay down\tthis\nbar if a proceeding in\t court was still under contemplation\nand if and when the proceeding is taken it may be found that\nthe  offence  alleged to have been committed was,  in  fact,\ncommitted in or in relation to, that proceeding.  The Magis-\ntrate  could not be expected to come to a  decision  whether\nany  such proceeding in any court was  under  contemplation,\nand   any  interpretation  of  law  which  will\t  make\t its\napplicability dependent on a future decision to be taken  by\nsome  person and thus introduce an element  of\tuncertainty,\nshould be avoided. [530 B-F]\n(iii)At\t the  stage  when the complaint\t was  filed  by\t the\nrespondent  against the appellant the police were  inquiring\ninto  the appellant's report.  In such a case, there may  be\nno  justification for the police to bring a charge of  false\ninformation  being  given  to them  until  investigation  is\n,completed.  Similarly, a Magistrate has-no jurisdiction  to\norder  a prosecution for making a false complaint, till\t the\ncomplaint  was\tdismissed.   But  there\t is  no\t requirement\nanywhere in law that the person affected by the false charge\ncould  not file his complaint in court until the police\t had\ndecided that the charge is false. [534 F-H; 535 A-B]\nQueen  v. Subanna Goundan, (1862-63) 1 M.H.C.R. 30 and\tGati\nMandal v. Emperor, 27 Cr.  L.J. 1105, referred to.\n(iv)  The  mere\t fact that, on a report being  made  to\t the\npolice\tof a cognizable offence, the proceeding must,  at  a\nlatter\tstage., end in a judicial order by  the\t Magistrate,\ncannot, stand in the way of a private complaint being  filed\nand  of\t cognizance being taken by the court on\t its  basis.\nThe  scheme of the provisions relating to  investigation  in\nthe   Criminal\tProcedure  Code<\/a>,  requires  that  upon\t the\ncompletion  of investigation, the investigating officer\t has\nto  submit  a report to the Magistrate under  s.173  Cr.P.C<\/a>.\nfurnishing various details and stating whether it appears to\nhim  there  is or is not sufficient evidence  or  reasonable\nground\tfor placthe accused on trial.  At that\tstage  there\nmay  be\t an intervention by ire Magistrate in  his  judicial\ncapacity.   But until some occasion arises for a  Magistrate\nto  make  a judicial order in connection with  the  investi.\ngation\tof a cognizable offence by the police,\tno  question\ncan  arise  of the Magistrate having the power of  filing  a\ncomplaint under s. 195(1)(b)<\/a> Cr.P.C. [540 DI.  G-H; 541 B-C]\n(v)  It is not correct to say that s. 195<\/a> Cr.P.C. lays\tdown\nthat the offence& therein referred to shall not be deemed to\nbe  any\t offences  at all, except on the  complaint  of\t the\npersons\t or  the courts therein specified.   An\t offence  is\nconstituted  as\t soon as it is found that  the\tfacts  which\nconstitute  the\t offence have been committed by\t the  person\n-accused  of the offence, and it remains an offence  whether\nit is triable by a court or not. [535 G-H]\nObservations contra in Fakir Mohamed v. Emperor<\/a>, A.I.R. 1927\nSind 10 overruled.\n522\n(vi)  It was not necessary that the proceeding taken by\t the\npolice\tshould terminate before the court could\t competently\ntake  cognizance  of the complaint filed by  the  respondent\nagainst the appellant. [537 H]\n(vii) In the case of s. 195(1)(b)<\/a> there is a limitation that\nprivate\t prosecutions  are  barred  only  if  the   offences\nmentioned  in  that sub-section were alleged  to  have\tbeen\ncommitted in, or in relation to any proceeding in any court.\nIf  the offence was not committed,, in, or in  relation\t to,\nany  proceeding\t in  any  court,  a  private  complaint\t  is\npermissible. [537 D-E]\nRamaswami  Iyengar v. Panduranga Mudaliar, A.I.R. 1938\tMad.\n173, referred to.\n(viii)\tIt  is true that if a private person is\t allowed  to\nfile  a complaint that the report to the police against\t him\nis  false before investigation is corn leted, and the  court\ntakes  cognizance of it, there may be two trials, in one  of\nwhich person accused of an offence may be under trial, while\nin  the other, the person who complained to the\t police\t may\nappear as a person accused of an offence under s. 211<\/a> I.P.C.\nBut, there is no difficulty in dealing with such a  possible\nanomalous  situation, by trying both cases together  or\t one\nafter the other. [541 C-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMNAL APPELLATE JURISDICTION : Criminal Appeal No. 110  of
\n1965.\n<\/p>\n
Appeal from the judgment and order dated January 13, 1965 of
\nthe High Court at Allahabad in Criminal Revision No. 1318 of
\n1964.\n<\/p>\n
Frank  Anthony, M. L. Sethi, J. C. Talwar and R.  L.  Kohli,
\nfor the appellant.\n<\/p>\n
R. P. Kapur, respondent No. 1, in person.\n<\/p>\n
O.P. Rana, for respondent No. 2.\n<\/p>\n
The Judgment of the Court was delivered by
\nBhargava, J. This appeal filed under certificate granted  by
\nthe  High  Court at Allahabad is directed against  an  order
\npassed\tby that Court dismissing a revision  application  by
\nwhich the appellant, M. L. Sethi, desired the vacation of an
\norder  passed by the Sessions Judge of Saharanpur  upholding
\ntwo orders of the Additional District Magistrate (Judicial),
\nSaharanpur,  dated 6th August, 1963 and 5th  October,  1963.
\nBy  these orders, the Magistrate dismissed two\tapplications
\npresented  by  the  appellant  for  dismissing\ta  complaint
\npending before him for commission of offences under sections
\n21<\/a>  1<\/a>,\t204<\/a>  and 385<\/a> of the Indian Penal  Code.\t  A  further
\nprayer\twas  made  for an order by this\t Court\tqushing\t the
\nproceedings pending in the Court of that Magistrate.
\nThe  facts necessary for deciding this appeal may be  stated
\nbriefly. on December 10, 1958, the appellant lodged a report
\nwith  the  Inspector-General of Police,\t Chandigarh  against
\nR.P. Kapur (hereinafter referred to as “the respondent”) and
\nhis mother-in-law charging them with commission of  offences
\npunishable under sections 420<\/a>, 109<\/a>, 114<\/a> and 120-B<\/a>, I.P.C<\/a>. It
\ndoes not appear to be necessary
\n523<\/span>
\nto give the details of the allegations made in that  report.
\nThe charge in that First Information Report was based on the
\nallegation  that  the respondent and his  mother-in-law,  by
\nconspiring together, cheated the appellant and his wife of a
\nsum  of Rs. 20,000\/- by persuading the appellant to  take  a
\nsale-deed of some land on certain false representations\t and
\non suppression of facts indicating that on the date when the
\nsale-deed by the respondent’s mother-in-law was executed  in
\nfavour of the wife of the appellant, the title of the former
\nhad already been extinguished, as the land had been acquired
\nby  the\t Government  under the Land  Acquisition  Act<\/a>.\t The
\noffence\t  was  registered  as  a  cognizable   offence\t and
\ninvestigation was started.\n<\/p>\n
On  April 11, 1959, the respondent filed a complaint in\t the
\nCourt  of  Judicial  Magistrate,’  1st\tClass,\t Chandigarh,
\nagainst\t the  appellant\t for commission\t of  offences  under
\nsections  204<\/a>,\t211<\/a> and 385<\/a> I.P.C. In  this  complaint,\t the
\nrespondent alleged that the land was sold by his  mother-in-
\nlaw to the appellant’s wife as a favour to the appellant and
\nthat at that time, no misrepresentations at all were made in
\nrespect of any facts. The complaint added that the appellant
\nwas  fully  aware of the land acquisition  proceedings;\t but
\nbecause\t of  fixation  of low rate of  compensation  in\t the
\nacquisition  proceedings,the  appellant suffered a  loss  of
\nnearly\tRs. 13,000\/-. The appellant,being a clever  criminal
\nlawyer,\t  went\tto  the\t respondent’s  mother-in-law,\tSmt.
\nKaushaliya  Devi, and demanded the sum of  Rs.\t13,000\/-,and
\nwhen  she refused, he threatened her with dire\tconsequences
\nof   criminal  proceedings against her and  her\t son-in-law,
\nthe respondent.A similar threat of criminal proceedings\t was
\nalso later given to the respondent himself by the appellant;
\nand thereafter, the First Information Report was lodged with
\nthe Inspector-General of Police by the appellant on December
\n10,  1958. The charge in the complaint further was that\t the
\nallegations  made  in the First Information  Report  by\t the
\nappellant  were false to his knowledge and were contradicted
\nby   the  appellant’s  own  letters,  writings\t and   other
\ncorrespondence.It  was also stated that the false report  to
\nthe  police  was made with the knowledge  and  intention  of
\nputting\t the respondent in fear of ,injury to his fair\tname
\nand  reputation\t in service and otherwise and of  being\t put
\nunder arrest and harassment in a criminal trial and  thereby
\nto   induce  him  to  deliver to the appellant Rs.  13,000\/-
\nand  submit to other terms that the appellant may choose  to
\nimpose.\t The  last  allegation was that\t the  appellant\t was
\nguilty\tof the offence under s. 204<\/a>, I.P.C<\/a>.,  for  secreting
\nfive  documents which were enumerated in the complaint,\t and
\nthis offence was alleged to have been committed, because  if
\nthese documents had been presented in time, the Police would
\nnot have entertained the complaint which led to a  harassing
\ninvestigation against the respondent.\n<\/p>\n
This   complaint  filed\t by  the  respondent   against\t the
\nappellant,as  well  as\tthe proceedings\t instituted  by\t the
\nPolice on the basis of the
\n524<\/span>
\nFirst  Information Report were transferred under the  orders
\nof  this  Court\t to the Court  of  the\tAdditional  District
\nMagistrate, Saharanpur.\t The case against the respondent and
\nhis  mother-in-law  based on the  First\t Information  Report
\nended  in an order of discharge passed by the High Court  of
\nAllahabad  on  December\t 10, 1962, when\t the  charge  framed
\nagainst\t the respondent and his mother-in-law by the  trying
\nMagistrate was quashed.\t On the record, the material availa-
\nble  relating to the proceedings based on the  F.I.R.  dated
\nDecember  10, 1958, is that it was on July 18, 1959 for\t the
\nfirst  time that the respondent was arrested  in  connection
\nwith that report and the challan by the Police for trial  of
\nthe respondent was presented to the Court on July 25,  1959.
\nThere is no material to show that between December 10′ 1958,
\nwhen  the First Information Report was lodged, and July\t 18,
\n1959 when the respondent was arrested in connection with it,
\nthere was, at any stage, any order passed by any  Magistrate
\nin connection with the investigation that was going on.
\nAs  we\thave  mentioned earlier, the  revisions\t before\t the
\nSessions Judge, and the High Court, arose out of two  orders
\nmade  by  the Additional District Magistrate  on  August  6,
\n1963,  and October 5, 1963.  The first order was made on  an
\napplication  presented\tby the appellant on May 6,  1963  in
\nwhich  he  contended that no offence was  disclosed  on\t the
\nallegations  made in the complaint and on the  statement  of
\nthe  complainant recorded by the Magistrate  at\t Chandigarh,
\nand,  further,\tthat, in any case, the trial was  barred  on
\naccount\t of want of requisite previous sanction as  provided
\nin  S. 195<\/a> of the Code of Criminal Procedure.  It  was\talso
\nalleged that the facts were so inter-mixed that the trial of
\nany  other offence separate from the offence under  S.\t211<\/a>,
\nI.P.C<\/a>.,\t was  not  permissible\tor  possible,  so  that\t the
\nMagistrate  was requested not to proceed with the trial\t and
\nto  withdraw the order summoning the appellant; and  in\t the
\nalternative,  the  prayer  was that  the  appellant  may  be
\ndischarged  under S. 253<\/a>, Cr.  P.C., as the  charge  against
\nhim was groundless.\n<\/p>\n
The second order of the Magistrate dated 5th October,  1963,
\nwas passed on the application of the appellant dated  August
\n12, 1963, in which it was prayed that the Court may not take
\ncognizance  ,of the complaint as instituted, and  the  trial
\nunder  S.  252<\/a>, Cr.  P.C. may not proceed.  The\t prayer\t was
\nagain  based  on the ground that cognizance of\tthe  offence
\nunder  S.  21<\/a> 1<\/a>, I.P.C<\/a>. could not be taken in  view  of\t the
\nprovisions of S. 195(1)(a)<\/a> & (b), Cr.  P.C., under which the
\n,Court\twas empowered to proceed in respect of that  offence
\nonly when there was a complaint, in writing by the authority
\nconcerned.   The Additional District Magistrate by  his\t two
\norders,\t rejected  the contention that s.  195<\/a>,\t Cr.   P.C.,
\nbarred\tthis  particular  complaint  which  had\t been  filed
\nagainst the appellant.\tThe main ground for these orders was
\nthat  no  proceedings  were pending in any  Court  when\t the
\ncomplaint against the appellant was filed in the Court of
\n525<\/span>
\nthe Magistrate at Chandigarh for the offences under sections
\n204<\/a>,  21<\/a>  1<\/a>, and 385<\/a>, I.P.C<\/a>. and consequently, s.  195<\/a>,\t Cr.
\nP.C.,  was  inapplicable.   That is the view  of  the  Addl.
\nDistrict  Magistrate  which  has been  upheld  both  by\t the
\nSessions  Judge\t and the High Court; and  consequently,\t the
\nappellant has now come up to this Court in this appeal.
\nOn behalf of the appellant, the first submission made by his
\ncounsel, Mr. Frank Anthony, Was that the making of a  report
\nof a cognizable offence with the police is both\t institution
\nof  a criminal proceeding as well as charging a person\twith
\nhaving committed an offence, so that, in this case, when the
\nappellant  lodged his First Information Report\ton  December
\n10,  1958, with the InspectorGeneral of Police, it  must  be
\nheld  that he had instituted a criminal\t proceeding  against
\nthe  respondent, as well as he had charged him\twith  having
\ncommitted  the offences mentioned in that report within\t the
\nmeaning\t of s. 21<\/a> 1<\/a>, I.P.C<\/a>. In support of this\tproposition,
\nlearned\t counsel  relied  on a Full Bench  decision  of\t the
\nCalcutta High Court in Karim Buksh v. The  Queen-Empress<\/a>(1),
\nand a Full Bench decision of the Kerala High Court in Albert
\nv.  State  of Kerala and Another.(2) It was urged  that,  on
\nthis  interpretation, when the respondent filed a  complaint
\nagainst\t the appellant under s. 21<\/a> 1<\/a>, I.P.C<\/a>., together\twith
\nother offences, the provisions of s. 195<\/a>, Cr.  P.C.,  became
\nattracted.  It appears to us that in this case it is not  at
\nall  necessary to go into the question whether,\t whenever  a
\ncomplaint of a cognizaable offence is filed, it must be held
\nthat  the  complainant\tis  instituting\t or  causing  to  be
\ninstituted a criminal proceeding, or is merely charging\t the
\nperson\tnamed  in  the\treport\twith  having  committed\t the
\noffences  mentioned therein, because, during the  course  of
\nargument  in  the appeal before us, no\tcontention  was\t put
\nforward\t that no offence under s. 211<\/a>, I.P.C<\/a>., was made\t out
\nand  that  the\tcomplaint  of  the  respondent\tagainst\t the
\nappellant  was\twrongly\t being treated as in  respect  of  a
\ncharge under s. 21<\/a> 1<\/a>. Up to the stage of the revision before
\nthe  High  Court,  some attempt was made on  behalf  of\t the
\nappellant to plead that the facts alleged by the  respondent
\nin his complaint to the Court did not constitute an  offence
\nunder  s. 21<\/a> 1<\/a>, I.P.C<\/a>. committed by the appellant;  but,  in
\nthis  Court,  Mr. Frank Anthony on behalf of  the  appellant
\ngave up this plea and, in fact, proceeded to urge before  us
\nthat  the complaint of the respondent against the  appellant
\ndid  specifically  include  in it a charge under  s.  21<\/a>  1<\/a>,
\nI.P.C<\/a>. On behalf of the respondent and the State  Government
\nalso there was no suggestion that the complaint against\t the
\nappellant  was not in respect of the offence under s. 21<\/a>  1<\/a>,
\nI.P.  C. It is consequently unnecessary at this stage to  go
\ninto the question whether the facts given in the  complaint,
\nor the facts which may ultimately be found proved after\t the
\ntrial,\tdo  or do not constitute an offence under s.  21<\/a>  1<\/a>,
\nI.P.C<\/a>. and if they do, whether those facts show that the
\n(1) I.L.R.17 Cal. 574.\n<\/p>\n
(2) A.I.R. 1966 Kerala 11.\n<\/p>\n
526<\/span><\/p>\n
appellant  had instituted a criminal proceeding against\t the
\nrespondent or had only charged him with having committed the
\noffences mentioned in his report.  That is a point which may
\nhave  to  be decided at the conclusion of the trial  of\t the
\nappellant; and consequently, we refrain from going into this
\nquestion at this stage.\n<\/p>\n
The only point that falls for determination by this Court is
\nwhether,  in this case, cognizance of the_ complaint,  which
\nincluded  an  offence under s. 21<\/a> 1<\/a>, I.P.C<\/a>.,  filed  by\t the
\nrespondent  against  the appellant, was rightly\t or  wrongly
\ntaken  by the Courts.  The complaint, as we  have  mentioned
\nearlier,  was  filed by the respondent in the Court  of\t the
\nJudicial Magistrate at Chandigarh on April 11, 1959, and  on
\nthe  same day, cognizance of the offence was taken  by\tthat
\nMagistrate  under  s.  190<\/a>,  Cr.   P.C.,  where\t after\tthat
\nMagistrate   proceeded\tto  record  the\t statement  of\t the
\nrespondent  under s. 200<\/a>, Cr.  P.C. Before  this  cognizance
\nwas  taken,  the  appellant had\t already  lodged  his  first
\nInformation   Report   against\tthe  respondent\t  with\t the
\nInspector-General  of  Police  on  December  10,  1958.\t  In
\nconnection  with  that report, investigation by\t the  Police
\nmust have been going on, though none of the judgments of the
\nlower Courts mentioned what particular steps had been  taken
\nin that investigation up to the 11th April, 1959, when\tthis
\ncomplaint was filed by the respondent against the appellant.
\nThe facts found only mentioned that in connection with\tthat
\nFirst  Information Report of the appellant,  the  respondent
\nwas arrested on July 18, 1959, and subsequently, the charge-
\nsheet  was  submitted  by the Police to\t the  Court  of\t the
\nMagistrate on July 25, 1959.  This arrest and submission  of
\nthe  charge-sheet were both subsequent to the filing of\t the
\ncomplaint  by  the respondent.\tIn these  circumstances,  we
\nhave  to  examine whether the Magistrate at  Chandigarh\t was
\ncompetent to take cognizance of this complaint on April\t 11,
\n1959,  in  view of the provisions of s. 195<\/a> of the  Code  of
\nCriminal Procedure.\n<\/p>\n
In  dealing with this question of law, the important  aspect
\nthat  has ,to be kept in view is that the point of  time  at
\nwhich the legality of the cognizance taken has to be  judged
\nis the time when cognizance is actually taken under S.\t190<\/a>,
\nCr.  P.C. Under the Code<\/a> of Criminal Procedure which applies
\nto  trials  of\tsuch cases, the only  provision\t for  taking
\ncognizance  is\tcontained  in s. 190<\/a>.\tSection\t 195<\/a>,  which
\nfollows\t that  section,\t is, in fact, a\t limitation  on\t the
\nunfettered  power of a Magistrate to take  cognizance  under
\ns.190.\tUnder the latter section cognizance of\tany  offence
\ncan   be  taken\t by  any  Presidency  Magistrate,   District
\nMagistrate  or\tSub-Divisional\tMagistrate,  and  any  other
\nMagistrate  specially  empowered  in this  behalf  (a)\tupon
\nreceiving  a  complaint\t of  facts  which  constitute\tsuch
\noffence; (b) upon a report in writing of such facts made  by
\nany  police-officer; and (c) upon information received\tfrom
\nany  person  other than a police-officer, or  upon  his\t own
\nknowledge or suspicion, that such
\n527<\/span>
\noffence\t has  been  committed.\tIn  the\t present  case,\t the
\nJudicial  Magistrate  at  Chandigarh  had  before  him\t the
\ncomplaint  filed by the respondent, and if s. 190<\/a>  stood  by
\nitself,\t he  was competent to take cognizance  of  it  under
\nclause\t(a)  of sub-s. (1) of that section.  This  power  of
\ntaking\tcognizance was, however, subject to  the  subsequent
\nprovisions  contained  in  the Code<\/a>  of\t Criminal  Procedure
\nincluding  that contained in s. 195<\/a>.  Sub-s. (1) of s.\t195<\/a>,
\nwhich is relevant for our purposes, is reproduced below —\n<\/p>\n
\t      “195(1).\tNo Court shall take cognizance-\n<\/p><\/blockquote>\n
\t      (a)  of any offence punishable under  sections
\n\t      172<\/a> to 188<\/a> of the Indian Penal Code, except on
\n\t      the complaint in writing of the public servant
\n\t      concerned, or of some other public servant  to
\n\t      whom he is subordinate;\n<\/p><\/blockquote>\n
\t      (b) of any offence punishable under any of the
\n\t      following\t sections of the same Code,  namely,
\n\t      sections\t193<\/a>, 194<\/a>, 195<\/a>, 196<\/a>, 199<\/a>,  200<\/a>,\t205<\/a>,
\n\t      206<\/a>,  207<\/a>,  208<\/a>, 209<\/a>, 210<\/a>, 211<\/a> and  228<\/a>,\twhen
\n\t      such offence is alleged to have been committed
\n\t      in,  or in relation to, any proceeding in\t any
\n\t      Court,  except on the complaint in writing  of
\n\t      such  Court  or of some other Court  to  which
\n\t      such Court is subordinate; or\n<\/p><\/blockquote>\n
\t      (c) of any offence described in section 463<\/a> or
\n\t      punishable  under section 471<\/a>, section 475<\/a>  or
\n\t      section  476<\/a>  of\tthe  same  Code,  when\tsuch
\n\t      offence is alleged to have been committed by a
\n\t      party  to\t any  proceeding  in  any  Court  in
\n\t      respect  of  a document produced or  given  in
\n\t      evidence\tin  such proceeding, except  on\t the
\n\t      complaint in writing of such Court, or of some
\n\t      other   Court   to   which   such\t  Court\t  is
\n\t      subordinate.”\n<\/p><\/blockquote>\n
This sub-section thus bars any Court from taking  cognizance
\nof  the\t offences  mentioned in clauses (a),  (b)  and\t(c),
\nexcept\twhen the conditions laid down in those\tclauses\t are
\nsatisfied.   In the case of an offence punishable  under  S.
\n211<\/a>, I.P.C<\/a>., the mandatory direction is that no Court  shall
\ntake  cognizance  of  any  offence  punishable\tunder\tthis
\nsection, when such offence is alleged to have been committed
\nin,  or in relation to, any proceeding in any Court,  except
\non  the complaint in writing of such Court or of some  other
\nCourt to which such Court is subordinate.  This provision in
\nclause\t(b)  of\t sub-s.\t (1) of s. 195<\/a>\tis  thus  clearly  a
\nlimitation  on\tthe power of the Court\tto  take  cognizance
\nunder  s.  190<\/a>.\t  Consequently, it is at the  stage  when  a
\nMagistrate  is taking cognizance under s. 190<\/a> that  he\tmust
\nexamine the facts of the complaint before him and  determine
\nwhether\t his power of taking cognizance under s. 190<\/a> has  or
\nhas not been taken away by cl. (b) of sub-s. (1) of s.\t195<\/a>,
\nCr.  P.C. In
\n528<\/span>
\nthe present case, therefore, at the time when this complaint
\nwas  filed ‘by the respondent in the Court of  the  Judicial
\nMagistrate at Chandigarh, it was necessary and incumbent  on
\nthat  Magistrate  to  examine whether his  power  of  taking
\ncognizance  of the offence was limited by the provisions  of
\ns.  195\t (1)(b).  He had, therefore,  to  determine  whether
\ncognizance  of\tthis complaint charging the  appellant\twith
\ncommission of an offence under s. 211<\/a>, I.P.C<\/a>., could not  be
\ntaken by him, because that offence was alleged to have\tbeen
\ncommitted  in,\tor  in relation to, any\t proceeding  in\t any
\nCourt,\tand if he found that it was so, whether a  complaint
\nin  writing by such Court or some other Court to which\tsuch
\nCourt  was  subordinate was necessary before he\t could\ttake
\ncognizance.   Consequently,  in deciding this  appeal,\tthis
\nCourt has to examine whether on the date when cognizance was
\ntaken\tby  the\t Judicial  Magistrate  at  Chandigarh\tsuch
\ncognizance was barred under s. 195(1)(b)<\/a>, Cr. P.C.,  because
\nthe offence punishable under s. 211<\/a>, I.P.C<\/a>., included in the
\ncomplaint  was\talleged\t to have been committed\t in,  or  in
\nrelation to, any proceeding in any Court.\n<\/p>\n
    In\tthe interpretation of this cl. (b) of sub-s. (1)  of
\ns. 195, considerable emphasis has been laid before us on the
\nexpression  “in, or in relation to”, and it has\t been  urged
\nthat  the  use\tof  the expression  “in\t relation  to”\tvery
\nconsiderably widens the scope of this -section and makes  it
\napplicable  to\tcases where there can even in  future  be  a
\nproceeding  in\tany Court in relation to which\tthe  offence
\nunder s. 211<\/a>, I.P.C<\/a>., may be alleged to have been committed.
\nA proper interpretation of this provision requires that each
\ningredient in it be separately examined. This provision bars
\ntaking\tof  cognizance if all  the  following  circumstances
\nexist,\tviz., (1) that the offence in respect of  which\t the
\ncase  is brought falls under s. 211<\/a> I.P.C.; (2)\t that  there
\nshould\tbe  a  proceeding in any Court; and  .(3)  that\t the
\nallegation  should  be\tthat the offence under\ts.  211\t was
\ncommitted in, or in relation to, such a proceeding.   Unless
\nall the three ingredients exist, the bar under s.  195(1)(b)<\/a>
\nagainst\t taking\t cognizance by the Magistrate, except  on  a
\ncomplaint  in  writing\tof  a  Court,  will  not  come\tinto
\noperation.  In the present case also, therefore, we have  to
\nsee whether all these three ingredients were in existence at
\nthe   time  when  the  Judicial\t Magistrate  at\t  Chandigarh
\nproceeded  to  take cognizance of the charge under  s.\t211<\/a>,
\nI.P.C<\/a>., against the appellant.\n<\/p>\n
    There  is,\tof course, no doubt that  in  the  complaint
\nbefore the Magistrate a charge under s..211, I.P.C<\/a>., against
\nthe  appellant\twas included, so that the  first  ingredient
\nclearly\t existed. The question on which the decision in\t the
\npresent\t case  hinges  is whether it can be  held  that\t any
\nproceeding  in any Court existed when that  Magistrate\ttook
\ncognizance.  If any proceeding in any Court existed and\t the
\noffence under s. 211<\/a>, I.P.C<\/a>., in the complaint filed  before
\nhim was alleged to have been committed in such a proceeding,
\nor in
\n529<\/span>
\nrelation  to any such proceeding, the Magistrate would\thave
\nbeen  barred from taking cognizance of the offence.  On\t the
\nother  hand, if there was no proceeding in any Court at\t all
\nin which, or in relation to which, the offence under s.\t 211<\/a>
\ncould  have  been  alleged  to\thave  been  committed,\tthis
\nprovision barring cognizance would not be attracted at all.
\nIn this case, as we have already indicated when\t enumerating
\nthe  facts, the complaint of which cognizance was  taken  by
\nthe  Judicial Magistrate at Chandigarh was filed on April  1
\n1,  1959,  and at that stage, the only proceeding  that\t was
\ngoing on was investigation by the Police on the basis of the
\nFirst Information Report lodged by the appellant before\t the
\nInspector-General of Police on December 10, 1958.  There  is
\nno  mention  at\t all  that there was,  at  that\t stage,\t any
\nproceeding in any Court in respect of that F.I.R. When\texa-
\nmining\tthe question whether there is any proceeding in\t any
\nCourt,\tthere  are three situations that can  be  envisaged.
\nOne is that there ,may be no proceeding in any Court at all.
\nThe  second is that a proceeding in a Court may actually  be
\npending at the point of time when cognizance is sought to be
\ntaken of the offence under s. 211<\/a>, I.P.C<\/a>. The third is that,
\nthough\tthere may be no proceeding pending in any  Court  in
\nwhich,\tor in relation to which, the offence under  s.\t211<\/a>,
\nI.P.C<\/a>.,\t could\thave been committed, there may have  been  a
\nproceeding which had already concluded and the offence under
\ns.  211\t may  be alleged to have been committed\t in,  or  in
\nrelation  to, that proceeding.\tIt seems to us that in\tboth
\nthe  latter  two circumstances envisaged above, the  bar  to
\ntaking\tcognizance  under  s.  195(1)(b)<\/a>  would\t come\tinto
\noperation.  If there be a proceeding actually pending in any
\nCourt  and the offence under s. 21<\/a> 1<\/a>, I.P.C<\/a>., is alleged  to
\nhave been committed in, or in relation to, that\t proceeding,
\ns. 195(1)(b) would, clearly apply.  Even if there be a\tcase
\nwhere  there  was, at one stage, a proceeding in  any  Court
\nwhich  may  have  concluded  by the  time  the\tquestion  of
\napplying  the  provisions of s. 195(1)(b)<\/a>  arises,  the\t bar
\nunder  that provision would apply if it is alleged that\t the
\noffence\t under\ts.  211, I.P.C<\/a>., was  committed\t in,  or  in
\nrelation to, that proceeding.  The fact that\\ the proceeding
\nhad concluded would be immaterial, because s. 195(1)(b)<\/a> does
\nnot  require that the proceeding in any Court must  actually
\nbe  pending at the time when the question of  applying\tthis
\nbar arises.\n<\/p>\n
In the first circumstance envisaged above, when there is no
\nproceeding pending in any court at all at the time when\t the
\napplicability  of  S. 195(1)(b)<\/a> has to\tbe  determined,\t nor
\nearlier\t proceeding which may have been of this\t sub-section
\nwould  not be attracted, has there been any  concluded,\t the
\nprovisions  because  the language used in it  requires\tthat
\nthere must be a proceeding in some Court in, or in  relation
\nto,  which the offence under s. 21<\/a> 1<\/a>, I.P.C<\/a>. is\t alleged  to
\nhave been committed.  In such a case, a Magistrate would  be
\ncompetent  to  take cognizance of the offence under  s.\t 211<\/a>
\nI.P.C., if his
\n530<\/span>
\njurisdiction is invoked in the manner laid down in s. 190<\/a> of
\nthe Code of Criminal Procedure.\n<\/p>\n
Mr. Frank Anthony on behalf of the appellant urged before us
\nthat  even  in\tthose cases where there may  be\t no  pending
\nproceeding  in\tany  Court, nor\t any  proceeding  which\t has
\nalready\t concluded  in any Court, the bar  of  s.  195(1)(b)<\/a>
\nshould\tbe  held  to be applicable if it  is  found  that  a
\nsubsequent  proceeding in any Court is under  contemplation.
\nWe  do not think that the language of cl. (b) of sub-s.\t (1)
\nof s. 195<\/a> can justify any such interpretation.\tA proceeding
\nin  contemplation  cannot be said to be a  proceeding  in  a
\nCourt.\t When  there  is mere contemplation  of\t starting  a
\nproceeding  in\tfuture,\t there\tis  no\tcertainty  that\t the
\nproceeding  will  come into existence.\tIt  will  always  be
\ndependent  on the decision to be taken by the person who  is
\ncontemplating  that  the  proceeding  be  started;  and\t any
\ninterpretation of the law, which will make the applicability
\ndependent  on  a  future decision to  be  taken\t by  another
\nperson,\t would, in our opinion, be totally  incorrect.\t The
\napplicability  of  this provision at the sweet will  of\t the
\nperson\tcontemplating  the  proceeding\twill  introduce\t  an
\nelement of uncertainty in the applicability of the law;\t and
\nsuch an interpretation must be avoided.\t In this case, apart
\nfrom this circumstance, the language used clearly lends\t it-
\nself  to the interpretation that the bar has been placed  by
\nthe  Legislature  only in those cases where the\t offence  is
\nalleged\t to have been committed in, or in relation  to,\t any
\nproceeding actually pending in any Court, or any  proceeding
\nwhich has already been taken in any Court.  There is nothing
\nin  the\t language  to indicate\tthat  the  Legislature\talso
\nintended to lay down this bar if a proceeding in a Court was
\nstill under contemplation and if and when that proceeding is
\ntaken, it may be found that the offence alleged to have been
\ncommitted  was,\t in fact, committed in, or in  relation\t to,
\nthat  proceeding.  In this connection, the question of\ttime
\nwhen   the  applicability  of  this  provision\thas  to\t  be
\ndetermined,  assumes importance.  It appears to us  that  at
\nthe time when in the present case the Judicial Magistrate at
\nChandigarh  had to determine the applicability of this\tbar,
\nhe  could not be expected to come to a decision whether\t any
\nproceeding  in any Court was under contemplation in,  or  in
\nrelation  to,  which the offence under s. 21<\/a> 1<\/a>,\t I.P.C<\/a>.,  of
\nwhich  he was asked to take cognizance, was alleged to\thave
\nbeen  committed.   In  fact,  it  would\t be  laying  on\t the
\nMagistrate  a  burden  which he could  not  be\texpected  to
\ndischarge  properly  and judicially as no  Magistrate  could
\ndetermine in advance of a proceeding in a Court whether\t the
\noffence\t under s. 21<\/a> 1<\/a>, I.P.C<\/a>., of which he is\trequired  to
\ntake  cognizance,  will be an offence which  will  be  found
\nsubsequently  to  have\tbeen committed in  relation  to\t the
\ncontemplated  proceeding  to  be  taken\t thereafter.\tThis
\ninterpretation,\t sought\t to be placed on this  provision  on
\nbehalf of the appellant, cannot, therefore, be accepted.\n<\/p>\n
531<\/span><\/p>\n
In  this connection, reliance was placed by learned  counsel
\nfor  the appellant on a series of cases decided\t by  various
\nHigh  Courts.  In Re Vasudeo Ramchandra Joshi(1),  the\tHigh
\nCourt  of  Bombay quashed proceedings for prosecution  of  a
\nlawyer\twho  had  instigated some witnesses  to\t give  false
\nevidence.   It\tappears\t that a\t pleader  was  defending  an
\naccused\t person in a proceeding pending before a  Magistrate
\nagainst\t his  client in respect of a charge  under  s.\t401<\/a>,
\nI.P.C<\/a>. On April 1, 1922, an application made by the  pleader
\non  behalf of the accused for bail was refused.\t  Then,\t the
\nstatements  of three witnesses were recorded under  s.\t164<\/a>,
\nCr.   P.C., on April 18, 1922, and from these statements  it
\nappeared that on April 10, these witnesses had an  interview
\nwith  the  pleader  who had instigated them  to\t give  false
\nevidence.   On April 15, another case against the  pleader’s
\nclient\tin  respect of a dacoity was sent up  to  the  Magis
\ntrate,\tand the allegation against the pleader was  that  it
\nwas  in connection with this case of dacoity which was\tsent
\nup  to\tthe  Magistrate on April 15, that  the\tpleader\t had
\ninstigated the witnesses to give false evidence.  On June 2,
\nthe  witnesses were actually examined before the  Magistrate
\nin this dacoity case which was sent up on April 15; and then
\non  June  7,  a complaint was filed by\tthe  Police  Officer
\nagainst\t the  pleader charging him with having\tabetted\t the
\ngiving\tof  false evidence.  It was in\tthese  circumstances
\nthat  the High Court held that the provisions of  s.  195(1)<\/a>\n<\/p>\n
(b),  Cr.   P.C., were applicable and the case\tagainst\t the
\npleader\t on the charge filed by the Police Officer  was\t not
\nmaintainable  when there was no sanction by  the  Magistrate
\nwho was enquiring into the dacoity case in relation to which
\nthe  witnesses were instigated to give false  evidence.\t  On
\nthe  facts,  it is clear that that case\t is  distinguishable
\nfrom  the case before us.  In that case, the charge  by\t the
\nPolice\tOfficer\t was  filed on June 7, and on  that  date  a
\nproceeding  was\t already pending before\t the  Magistrate  in
\nrelation to which the witnesses had been instigated to\tgive
\nfalse evidence.\t The provisions of s. 195(1)(b)<\/a> were, there-
\nfore, clearly applicable.  Dealing with this matter, one  of
\nthe  learned Judges of the High Court held that\t “the  words
\nare  very  general, and are wide enough, in my\topinion,  to
\ncover a proceeding in contemplation before a Criminal Court,
\nthough\tit may not have begun at the date when\tthe  offence
\nwas committed.\tIf that is so, it is plain that sanction was
\nnecessary   in\tthe  present  case,  and,   therefore,\t the
\nproceedings  which  have been undertaken are  nun  and\tvoid
\nwithout such sanction.”. These views expressed by Crump, J.,
\nhad  been relied upon by learned counsel in support  of\t his
\nproposition that even if an offence is committed in relation
\nto a proceeding which is in contemplation, the provisions of
\ns.  195(1) (b), Cr.  P.C., are attracted.  We do  not  think
\nthat any such general proposition can be inferred from\tthat
\ndecision.  It is to be noted that in that case though it was
\nheld  that the offence of instigation of witnesses  to\tgive
\nfalse evidence was committed when proceedings
\n(1)  Al.R. 1923 Bom. 105.\n<\/p>\n
532<\/span><\/p>\n
before\ta criminal Court were still under  contemplation  in
\nwhich the witnesses were to appear, the actual complaint f9r
\nthat instigation was filed after the Magistrate was  already
\nseized\tof  the\t proceeding  in\t which\tthe  witnesses\twere
\ninstigated to give false evidence.  On the date on which the
\ncomplaint  was\tfiled  by the Police  Officer  charging\t the
\npleader with instigation of giving false evidence, there was
\nalready a pending proceeding before the Court in relation to
\nwhich  that offence had been committed.\t  Consequently,\t the
\nobservations  in that case should be interpreted as  limited
\nto  laying  down that the provisions of\t s.  195(1)(b)<\/a>,\t Cr.
\nP.C.,  will  be attracted even if the  offence\tcharged\t was
\ncommitted  while  the proceeding was in\t contemplation,\t and
\nthat  there was no decision by the Court that  the  sanction
\nunder  s. 195(1)(b)<\/a> would be necessary even in\tthose  cases
\nwhere  the proceeding is still\tunder contemplation  on\t the
\ndate  when  the\t complaint is filed  before  the  Court\t for
\ncommission  of\tthe  offence  mentioned\t in  s. 195(1)(b)<\/a>.
\n    In Ghulam Rasul v. Emperor<\/a>(1) the Police investigated  a
\nreport\tthat a certain person had stolen  the  complainant’s
\nwatch  from  his car, and in the investigation,\t the  Police
\ncame  to the conclusion that the report was false  and\tthat
\nthe watch had been removed by the complainant himself.\t The
\ncase   was  accordingly\t reported  to  the  Magistrate\t for
\ncancellation; and then the Police prosecuted the complainant
\nunder  ss.  193<\/a> and 211<\/a>, I.P.C<\/a>.\t The learned  Judge  of\t the
\nLahore High Court in dealing with the case held: “I am clear
\nthat  the  words  in this sub-section ‘in  relation  to\t any
\nproceeding  in\tany  Court’ apply to this case\tof  a  false
\nreport or a false statement made in an investigation by\t the
\npolice with the intention that there shaH, in consequence of
\nthis,  be a trial in the Criminal Court, and I find  support
\nfor  this  view\t in  the case of  Chuhar  Mal-Nihal  Mal  v.
\nEmperor(2).” The decision in the words in which the  learned
\nJudge  expressed himself appears to support the argument  of
\nlearned\t counsel for the appellant in the present case;\t but
\nwe  think that very likely in that case, the  learned  Judge
\nwas  influenced by the circumstance that the case  had\tbeen
\nreported  by the Police to the Magistrate for  cancellation.
\nHe appears to have held the view that the Magistrate  having
\npassed\tan order of cancellation, it was necessary that\t the
\ncomplaint  should  be filed by the  Magistrate,\t because  s.
\n195(1)(b)<\/a>  had\tbecome\tapplicable.  If\t the  learned  Judge
\nintended  to say that without any proceeding being taken  by
\nthe  Magistrate in the. case which was investigated  by\t the
\nPolice\tit  was still essential that a complaint  should  be
\nfiled\tby  the\t Magistrate  simply  because  a\t  subsequent
\nproceeding   following\t the   police\tinvestigation\t was
\ncontemplated,  we  consider  that  his\tdecision  cannot  be
\naccepted as correct.\n<\/p>\n
1)  A.I.R.  1936 Lah. 238.\t\t    (2)\t A.I.R\t1929
\nSind 132.\n<\/p>\n
533<\/span><\/p>\n
In  Balak  Ram and Others v. Emperor<\/a>(), it was held  that  a
\nperson who sets the criminal law in motion by making a false
\ncharge\tto the police of a cognizable offence by  definitely
\ncharging  a  person with having come to his  house  for\t the
\npurpose\t  of  dacoity,\tand  insisting\tfor   investigation,
\ninstitutes  criminal  proceedings within the meaning  of  s.
\n211<\/a>,  and  that\t criminal  proceedings\tare  just  as\tmuch
\ninstituted   within  the  meaning  of  s.  211<\/a>\twhen   first
\ninformation  of a cognizable offence is given to the  Police
\nunder s. 154<\/a>, Cr.  P.C., as when a complaint is made  direct
\nto a Magistrate under s. 200<\/a>, Cr. P.C. We do not think\tthat
\nthese  comments\t made  in that case can\t be  interpreted  as
\nlaying down that criminal proceedings instituted by  lodging
\na  First Information Report of a cognizable offence  to\t the
\nPolice\tamount to institution of a criminal proceeding in  a
\nCourt.\t What the Court in that case was deciding  was\tthat
\nthere  can  be criminal proceedings apart  from\t proceedings
\ninstituted  by a complaint in Court for purposes of s.\t211<\/a>,
\nI.P.C<\/a>. That decision does not in any way attempt to lay down
\nthat  a\t proceeding in investigation is a  proceeding  in  a
\nCourt.\n<\/p>\n
In  Ramdeo v. The State and Another<\/a>(2), the  question  arose
\nabout the applicability of s. 195<\/a> to a complaint made for an
\noffence under s. 182<\/a>, I.P.C<\/a>., by a Police Officer for giving
\nfalse information to him in a report lodged by an informant.
\nIn that connection, the Court considered the scope of s. 195<\/a>
\nand held that an offence under s. 211<\/a>, I.P.C<\/a>., in connection
\nwith  a\t false charge made before the Police is\t an  offence
\ncommitted in relation to proceedings in a Court contemplated
\nat the time of lodging information with the Police.  But  in
\nthat  case again the complaint by the Police was held to  be
\nincompetent  only on the further basis that the\t proceedings
\nunder contemplation at the time when the offence under s. 21<\/a>
\n1<\/a>,  I.P.C<\/a>.,  was  committed  by\t lodging  the  report,\twere
\nactually  instituted later.  This institution of  that\tcase
\ntook  place before the Police lodged the complaint  for\t the
\noffence\t under\ts. 182, I.P.C<\/a>. Thus, this was again  a\tcase
\nwhere  a proceeding was actually pending in a Court  at\t the
\ntime when cognizance of the offence under s. 182<\/a> was  taken,
\nand it was held that the charge under s. 182<\/a> was covered  by
\na  charge under s. 21<\/a> 1<\/a>, I.P.C<\/a>. and that the latter  offence
\nhad  been committed in relation to the proceeding which\t had
\ncome  into  existence  in the Court at the  time  of  taking
\ncognizance.\n<\/p>\n
In Har Prasad v. Hans Ram and Others<\/a>(3), a private complaint
\nwas  filed  before  a Magistrate  disclosing  commission  of
\noffences under ss. 467<\/a> and 471<\/a>, I.P.C<\/a>., at a time when there
\nwere  no proceedings pending in any Court.   These  offences
\nwere committed for the purpose of using the forged documents
\nin  the\t Court\tof  the\t Tahsildar  who\t was  to  deal\twith
\nsubsequent mutation proceedings
\n(1)   A.I.R. 1942 Oudh 100.   (2) A.I.R. 1962 Raj. 149.
\n(3)  A.I.R. 1966 All. 124.\n<\/p>\n
534<\/span><\/p>\n
and  they  were, in fact, so used subsequently.\t It  was  in
\nthese  circumstances that the Court held that the words\t “in
\nrespect of” in S. 195(1)(c)<\/a> were wide enough to include even
\na document which was prepared before the proceedings started
\nin  a Court of law but was produced or given in evidence  in
\nthat  proceeding.  It was further held that in this view  of
\nthe matter, although the document was fabricated before\t the
\nproceedings started in Tahsildar’s Court and although two of
\nthe  opposite  parties were not impleaded  in  the  mutation
\nproceedings,  it  must be held that the\t cognizance  of\t the
\noffence was barred by s. 195(1)(c)<\/a>.  Once again, it will  be
\nnoticed\t that  all that the Court disregarded was  the\tfact
\nthat  the  substantive\toffence\t mentioned  in\tS.  195\t was
\ncommitted  for a proceeding which was  under  contemplation,
\nbut  the  proceedings in Court for that\t offence  were\theld
\nbarred\tby S. 195<\/a> only because subsequently, proceedings  in
\nthe  Court  of\tthe Tahsildar were actually  taken  and\t the
\ndocuments  concerned were used in it and were found to\thave
\nbeen  forged in relation to those proceedings.\tOn the\tdate
\non  which  the\tcognizance was\ttaken,\tthe  proceeding,  in
\nrelation  to  which  the offence  had  been  committed,\t was
\nalready pending.\n<\/p>\n
In The Queen v. Subbanna Gaundan and Others<\/a>(), it was  found
\nthat some persons were convicted under s. 21<\/a> 1<\/a>, I.P.C<\/a>.,\t for
\nfalsely\t charging the complainant with having committed\t the
\noffence\t of highway robbery, knowing that there was no\tjust
\nor  lawful  ground  for such charge.  The  charge  had\tbeen
\npreferred before an Inspector of Police, who disbelieved and
\nrefused to act upon it.\t It was held that to constitute\t the
\noffence\t of preferring a false charge contemplated in S.  21<\/a>
\n1<\/a>,  I.P.C<\/a>., it was not necessary that the charge  should  be
\nbefore a Magistrate.  In that connection, the Court  further
\nheld that it is enough in a case like that one if it appears
\nthat the charge was still not pending and that an indictment
\nfor   falsely  charging\t could\tnot  be\t sustained  if\t the
\naccusation were entertained and still remained under  proper
\nlegal  enquiry.\t Reliance is placed on the last dictum\tthat
\nan indictment for falsely charging, as in the present  case,
\ncannot\tbe  sustained  while the  accusation  made  in\tthat
\nalleged\t false charge is still under proper  legal  enquiry.
\nIn  the\t present case, there is no doubt that at  the  stage
\nwhen  the complaint was filed by the respondent against\t the
\nappellant  for\tthe  offences under ss. 204<\/a>,  211<\/a>  and\t385<\/a>,
\nI.P.C<\/a>.,\t enquiry on the First Information Report  lodged  by
\nthe  appellant was still being conducted by the Police.\t  In
\nsuch  a case, there may be no justification for\t the  Police
\nbringing  a  charge of false information being given  to  it
\nuntil  the investigation is completed.\tBut we do  not\tfind
\nany requirement anywhere in law that the person affected  by
\nthe false charge could not file his complaint in Court until
\nthe  Police  had  decided that the charge  was\tfalse.\t The
\ndiscretion  of the person affected by the false\t charge\t was
\nnot  to\t be fettered or tied down to the view taken  by\t the
\nPolice.\n<\/p>\n
(1) (1862 & 1863) I Madras High Court Reports, 30.\n<\/p>\n
535<\/span><\/p>\n
The  case  of Gati Mandal v. The, Emperor() is again  of  no
\nhelp, because in that case also the only principle that\t was
\nlaid down was that a Magistrate had no jurisdiction to order
\na  prosecution\tfor  making  a\tfalse  complaint,  till\t the
\ncomplaint  was dismissed.  That case does not relate to\t the
\nright  of  a private person to file a complaint at  a  stage
\nwhen  no  case is pending in any Court against\thim  and  no
\nquestion of intervention of any Court under s. 195<\/a>, Cr.P.C<\/a>.,
\narises.\n<\/p>\n
In Fakir Mohamed v. Emperor<\/a>(2), it was held that if there is
\nno complaint by a public servant as required by S. 195<\/a>,\t the
\ndefect\t cannot\t be  said  to  be  an  error,  omission\t  or
\nirregularity in a complaint, because the complaint was never
\nmade.\tBefore\tan  error, omission  or\t irregularity  in  a
\ncomplaint  can\tbe  cured, the\tcomplaint  must\t exist,\t and
\nconsequently,  the  provisions of s. 537<\/a>, Cr.\tP.C.  cannot
\napply.\t In  such a case, the trial without a  complaint  as
\nrequired by s. 195<\/a> would be void.  These comments brought to
\nour  notice  do\t not  have any\tparticular  bearing  on\t the
\nquestion  that we are called upon to examine.  In  the\tsame
\ncase,\tthe   Additional  Judicial  Commissioner   of\tSind
\ninterpreted  the effect of s. 195<\/a>, Cr.\tP.C. He was  of\t the
\nview  that “section 195<\/a>, though it forms a part of the\tCode<\/a>
\nof  Procedure, in reality contains a provision of  the\tsub-
\nstantive  law of crimes.  For s. 195<\/a> does not deal with\t the
\ncompetency  of\tthe Courts, nor lays down which\t of  several
\nCourts shall, in any particular matter, have jurisdiction to
\ntry the case; and yet the language of s. 195<\/a> is apt to these
\nmatters,  and it forms part of the Chapter entitled ‘of\t the
\njurisdiction  of  the  Criminal\t Courts\t in  enquiries\t and
\ntrials’.  Section 195<\/a> in reality lays down that the offences
\ntherein\t referred to (or rather the acts constituting  those
\noffences)  shall  not be deemed to be any offences  at\tall,
\nexcept on the complaint of the persons or the Courts therein
\nspecified; it enhances the connotation of those offences and
\nlimits\tthe scope of their definition.\tThis  limitation  of
\nthe  definition\t is brought about by saying  that  no  Court
\nshall take cognizance of the offences unless this condition,
\nrequisite for initiation of proceedings, is satisfied”.
\nRelying\t on  these  observations, learned  counsel  for\t the
\nappellant urged before us that in this case also, we  should
\nhold that no offence under s. 211<\/a> could come into  existence
\nand  no charge for that commission could be brought  against
\nthe appellant, unless there was a complaint by a Court under
\nS.  195,  Cr.\tP.C. We are unable to agree  with  the\tview
\nexpressed  by the learned Additional  Judicial\tCommissioner
\nthat  S. 195<\/a>, Cr.  P.C., really lays down that the  offences
\ntherein\t referred to shall not be deemed to be any  offences
\nat all, except on the complaint of the persons or the Courts
\ntherein specified.  An offence is constituted as soon as  it
\nis  found that the acts which constitute that  offence\thave
\nbeen  committed\t by the person accused of the  offence.\t  It
\nremains an offence whether it is triable by a Court or\tnot.
\nIf a law prescribes punishment for that offence,
\n(1) 27 Cr.  L.J. 1105.\n<\/p>\n
upSC.I.\/66-6
\nA.I.R. 1927 Sind 10
\n536<\/span>
\nthe fact that the trial of that offence can only be taken up
\nby courts. after certain specified conditions are  fulfilled
\ndoes  not  make that offence any the less an  offence.\t The
\nlimitation  laid down by s. 195<\/a>, Cr.  P.C., is, in  fact,  a
\nlimitation  only on the power of Courts to  take  cognizance
\nof,  and  try,\toffences and does not in any  way  have\t the
\neffect\tof converting an act, which was an offence, into  an
\ninnocent  act.\tWe cannot, therefore, subscribe to the\tview
\nexpressed  in that case.  There is the further\tcircumstance
\nthat  in the case before us we have held that the  provision
\ncontained  in  s. 195(1)(b)<\/a> was not applicable at  the\ttime
\nwhen  the Judicial Magistrate at Chandigarh took  cognizance
\nof  the offence, and consequently, this principle sought  to
\nbe laid down by the Additional Judicial Commissioner of Sind
\nhas no application.\n<\/p>\n
In  Gunamony  Sapui v. Queen Empress(), the  High  Court  of
\nCalcutta  dealt\t with a case in which a complaint  had\tbeen
\nlodged\tby  one Syambar, accompanied by\t Gunamony,  charging
\ncertain persons with murder and other offences.\t The Police,
\nafter  investigation, made a report to the effect  that\t the
\ninformation   was  false,  and\tthereupon,  the\t  Magistrate
\ndirected  proceedings  to  be  taken  against  Syambar\t and
\nGunamony  to show cause why they should not  be\t prosecuted.
\nSyambar,  who had made the report, then appeared before\t the
\nMagistrate,  and repeating the information contained in\t his
\nreport\tto  the Police he asked for an\tenquiry,  which\t was
\nordered by the Magistrate.  Once again, a report was made by
\nthe  police  that the complaint was false.   Thereupon,\t the
\nMagistrate,  without  putting and end to that  complaint  of
\nSyambar by dismissing it under s. 203<\/a>, or passing any  other
\norder as he might think fit, instituted proceedings  against
\nGunamony  under\t s. 21<\/a> 1<\/a>, I.P.C<\/a>. On these  facts,  the\tHigh
\nCourt  held  that the proceedings against Gunamony  must  be
\nquashed, because there was no final order by the  Magistrate
\non  the complaint of Symabar dismissing his  complaint,\t and
\nthat  complaint was still pending.  On the analogy  to\tthis
\ncase,  it  was urged by learned counsel that  in  this\tcase
\nalso,  the  proceedings\t against  the  appellant  should  be
\nquashed on the ground that, at the stage when the respondent
\nfiled  his complaint against the appellant, the\t proceedings
\nbeing taken by Police on the report of the appellant had not
\ncome  to an end.  We do not think that the two cases can  be
\ncompared.   In that case, the proceedings were in Court\t and
\nthe  Court  filed a complaint for bringing false  charge  or
\ninstitution of false criminal proceedings without putting an
\nend to those proceedings.  In the case before us, there were
\nno proceedings before any Court on the, basis of the  report
\nlodged\tby  the appellant at the time  when  the  respondent
\nfiled  his complaint.  It was not at all necessary that\t the
\nproceedings  being  taken  by the  Police  should  terminate
\nbefore\tthe Court could competently take cognizance of\tthis
\ncomplaint filed by the respondent against the appellant.
\n(1) (1898-99) 3 C.W.N. 758.\n<\/p>\n
537<\/span><\/p>\n
In  K.Ramaswami Iyengar v. K. V. Panduranga  Mudaliar<\/a>(1),  a
\nlearned\t Judge\tof the Madras High Court, dealing  with\t the
\nprinciple  underlying s. 195<\/a>, Cr.  P.C. held: “where an\t act
\namounts\t to the offence of contempt of the lawful  authority
\nof  public servants (ss. 172-188, I.P.C<\/a>.), or to an  offence
\nagainst\t public\t justice such as giving false  evidence\t (s.
\n193,  et  seq.,\t I.P.C<\/a>.),  or  to  an  offence\trelating  to
\ndocuments  actually used in a Court (s. 471  etc.),  private
\nprosecutions  are barred absolutely, and only the Court,  in
\nrelation  to which the offence was committed,  may  initiate
\nproceedings.   This  salutary  rule of\tlaw  is\t founded  on
\ncommonsense.  The dignity and prestige of courts of law must
\nbe upheld by their presiding officers, and it would never do
\nto  leave  it  to  parties  aggrieved  to  achieve  in\t one
\nprosecution   gratification   of   personal   revenge\t and
\nvindication of a Court’s honour and prestige.  To allow this
\nwould  be  to sacrifice deliberately the  dispassionate\t and
\nimpartial calm of tribunals and to allow a Court’s  prestige
\nto  be\tthe sport of personal passions.” We  are  unable  to
\ninterpret these views expressed by the Madras High Court  as
\nimplying   that\t private  prosecutions\tfor   the   offences
\nmentioned in clauses (b) & (c) of sub-s. (1) of s. 195<\/a>,\t Cr.
\nP.C., are barred absolutely and tinder no circumstances\t can
\nsuch  offences be brought before courts by private  persons.
\nIn  the case of cl. (b), there is the clear limitation\tthat
\nprivate\t  prosecutions\tare  barred  only  if  the   offence
\nmentioned in that section was alleged to have been committed
\nin, or in relation to, any proceeding in any Court.  If\t the
\noffence\t was  not  committed  in, or  in  relation  to,\t any
\nproceeding  in\tany Court, a private  complaint\t is  clearly
\npermissible.   The  question of upholding  the\tdignity\t and
\nprestige  of  courts  of law only  arises  after  there\t are
\nproceedings in the Courts and not at the stage when no\tsuch
\nproceedings have been instituted or have come into existence
\nin  any\t Court.\t  In  the  present  case,  we  have  already
\nindicated that the cognizance of the complaint filed by\t the
\nrespondent  against the appellant was taken at a stage\twhen
\nthere\twas  no\t proceeding  in\t any  Court  of\t  law,\t and
\nconsequently,  at that stage, there could be no question  of
\ndignity\t or prestige of a court of law being upheld or of  a
\nprivate complaint being barred.\n<\/p>\n
In Emperor v. Hardwar Pal<\/a> (2), the complaint in question was
\nheld to clearly constitute an offence under s. 182<\/a>,  I.P.C<\/a>.,
\nbut  the High Court accepted the view held in earlier  cases
\nthat the facts in the complaint also constituted an  offence
\nunder  the first part of s. 21<\/a> 1<\/a>, I.P.C<\/a>. The High Court\t was
\ncalled\tupon  to,  decide  whether  in\tthose  circumstances
\ncognizance  of the complaint for the offence under  s.\t182<\/a>,
\nI.P.C<\/a>.,\t on  the complaint of the Police  Officer  concerned
\ncould  be competently taken when the case related  to  false
\ninformation report made to the police on the basis of  which
\na  case was sent up to Court and was tried by a\t Magistrate.
\nThe  Court  held that the complaint under  s.  182<\/a>,  I.P.C<\/a>.,
\ncould not be proceeded with,
\n(1) A.I.R. 1938 Mad. 173.\n<\/p>\n
(2) I.L.R. 34 All. 522.\n<\/p>\n
538<\/span><\/p>\n
because,  on  the  basis of the alleged\t false\treport,\t the
\nPolice\tmade an inquiry and sent up some accused for  trial,
\nand  the offence, which had been committed under  the  first
\nparagraph of s. 211<\/a> by falsely implicating an accused in the
\nreport,\t was  one committed in relation to a  proceeding  in
\ncourt.\t  It  was  held\t to  be\t obvious  that\t there\t was
\nconsiderable  relation\tbetween\t the first  report  and\t the
\nproceeding  in Court, for the latter was the result  of\t the
\nformer.\t  The  report  led to the  police  inquiry  and\t the
\ninquiry\t to  the  proceeding in\t court.\t  Consequently,\t the
\noffence\t committed  was one under s. 211<\/a> in  relation  to  a
\nproceeding in court and sanction of the Court was necessary.
\nThis  case,  again, does not, therefore, indicate  that\t any
\nview was taken contrary to our opinion expressed above.
\nTwo  other  cases brought to our notice are A.\tT.  Krishna-
\nmachari\t v.  Emperor<\/a>,(1)  and Badri v. State<\/a>  (2).   In\t the
\nformer case a statement was recorded under s. 164<\/a>, Cr.\tP.C.
\nby a Magistrate in relation to a case which was subsequently
\ntried  on that matter.\tEven though the Court,\twhich  tried
\nthe  case, had not recorded the statement under s.  164<\/a>,  it
\nwas  held  that\t it  was competent for\tthat  Court,  on  an
\napplication  under s. 476<\/a>, to make a complaint\tagainst\t the
\nperson\tin  respect of a statement made by  him\t to  another
\nMagistrate  under  s. 164<\/a>, Cr.\tP.C. This was again  a\tcase
\nwhere  the statement under s. 164<\/a>, Cr.\tP.C., was  found  to
\nrelate to a proceeding that subsequently came into existence
\nin a Court, and the question of filing the complaint for the
\noffence\t of  making  that  false  statement  or\t of   taking
\ncognizance in respect of that offence only arose after\tthat
\nproceeding in Court had already come into existence.
\nIn the case of Badri v. State<\/a>(2), where an offence under  s.
\n21<\/a>  1<\/a>,\tI.P.C<\/a>., was alleged to have been  committed  by\t the
\nperson\tmaking\ta false report against the  complainant\t and
\nothers to the Police, it was held that it was an offence  in
\nrelation  to the remand proceeding and the bail\t proceedings
\nwhich  were  subsequently  taken  before  a  Magistrate\t  in
\nconnection  with that report to the Police, and,  therefore,
\nthe  case  was governed by s. 195(1)(b)<\/a>, Cr.  P.C.,  and  no
\ncognizance  of\tthe  offence  could be\ttaken  except  on  a
\ncomplaint  by  the Magistrate who held the remand  and\tbail
\nproceedings.  We do not consider it necessary to express any
\nopinion\t whether the remand and bail proceedings before\t the
\nMagistrate  could be held to be proceedings in a Court,\t nor
\nneed  we consider the question whether the charge of  making
\nof the false report could be rightly held to be in  relation
\nto  those  proceedings.\t  That aspect need  not\t detain\t us,
\nbecause,  in  the case before us, the facts  are  different.
\nThe  complaint\tfor the offence under s. 21<\/a>  1<\/a>,\t I.P.C<\/a>.\t was
\ntaken cognizance of by the Judicial Magistrate at Chandigarh
\nat  a stage when there had been no proceedings\tfor  arrest,
\nremand\tor  bail of the respondent and the  case  was  still
\nentirely in the hands of the Police.\n<\/p>\n
(1) A.I.R. (1933) Mad.767.\n<\/p>\n
(2) I.L.R. [1963] 2 All. 359.\n<\/p>\n
539<\/span><\/p>\n
There  was,  in\t fact, no order by  any\t Magistrate  in\t the
\nproceedings  being taken by the Police on the report  lodged
\nby  the\t appellant  up to the stage  when  the\tquestion  of
\napplying the provisions of s. 195<\/a> (1)(b), Cr.  P.C.,  arose.
\nThese two cases are also, therefore, of no assistance to the
\nappellant.   On the same ground, the decision of the  Bombay
\nHigh  Court in J. D. Boywalla v. Sorab Rustomji\t Engineer<\/a>(1)
\nis also inapplicable, because in that case also orders\twere
\npassed\tby  a  Magistrate on the final report  made  by\t the
\nPolice\tafter  investigation of the facts in the  report  in
\nrespect\t of which the complaint under s. 21<\/a> 1<\/a>,\tI.P.C<\/a>.,\t was
\nsought to be filed.\n<\/p>\n
In  support  of his proposition that no\t criminal  complaint
\nunder  s. 21<\/a> 1<\/a>, I.P.C<\/a>., can be filed by a private person  if
\nthe  First  Information Report is  under  investigation\t and
\nrelates\t to a cognizable offence, Mr. Anthony urged that  we
\nshould examine the scheme of the Code<\/a> of Criminal  Procedure
\nrelating  to  investigation contained in ss. 154<\/a> to  173<\/a>  of
\nthat Code and should hold that this scheme itself  envisages
\nthat,  invariably,  the proceedings  of\t investigation\twill
\nterminate  in  a judicial order by a Magistrate,  and  while
\nsuch  proceedings are pending, it should not be\t permissible
\nfor  a\tprivate person to file the complaint on\t the  ground
\nthat the report under investigation was a false one.  It  is
\nperfectly correct that when a report of a cognizable offence
\nis  made, a duty is cast on the Police Officer in charge  of
\nthe  station to investigate that case, and in certain  cases
\nof serious offences, immediate report has to be sent to\t the
\nMagistrate who has power to take cognizance of the offences.
\nThere  is,  however, nothing in these sections\tto  indicate
\nthat  the  Magistrate  is  required  to\t intervene  in\t the
\ninvestigation  until the investigation is completed and\t the
\ninvestigating\tofficer\t arrives  at  some   conclusion\t  in
\naccordance  with s. 169<\/a> or s. 170<\/a>, Cr.\tP.C. After  arriving
\nat  this conclusion under either of those two  sections,  he
\nhas  to submit a report to the Magistrate empowered to\ttake
\ncognizance  of the offence under s. 173<\/a>.  If his  conclusion
\nis  covered  by\t the provisions of s. 170<\/a>,  Cr.\t  P.C.,\t the
\nreport\t submitted   by\t the  investigating   officer\twill
\nnecessarily  show  that a cognizable offence has  been\tcom-
\nmitted and such a report will satisfy the requirements of s.
\n190(1)(b)<\/a>,   Cr.  P.C.\tOn  that  report,   therefore,\t the
\nMagistrate  concerned can take cognizance and  proceed\twith
\nthe trial of the case.\tOn the other hand, if the report  is
\nbased  on  conclusions envisaged in s. 169<\/a>, Cr.\t  P.C.,\t the
\nreport\twill contain facts found by the Police Officer,\t and
\nwould  normally indicate that no such offence was  committed
\nof which he could recommend a trial by the Magistrate.\tEven
\non  the\t receipt  of such a report, the\t Magistrate  is,  of
\ncourse,\t competent to take cognizance under s. 190(1)(b)<\/a>  if
\nhe is of the opinion that the facts stated in the report  of
\nthe  Police  constitute an offence.  On the other  hand,  if
\nthose  facts do not constitute an offence, no cognizance  of
\nthe case can be taken by the Magistrate, though he can order
\nfurther
\n(1) A.I.R. (1941) Bom. 294.\n<\/p>\n
540<\/span><\/p>\n
investigation.\t If  he\t does not choose  to  order  further
\ninvestigation, all that the Magistrate has to do is to\tmake
\nan order under sub-s. (3) of s. 173<\/a>, Cr.  P.C.,\t discharging
\nthe  bond if the accused has been released by the Police  on
\nhis bond.\n<\/p>\n
This  scheme of investigation and its termination  contained
\nin these sections of the Code<\/a> of Criminal Procedure came  up
\nfor  consideration in several cases.  In Appa  Ragho  Bhogle
\nand  Others v. Emperor(1) it was held that a case which\t was
\ninvestigated  by the police under authority of a  Magistrate
\nunder  s. 155<\/a>, Cr.  P. C., could not be disposed of  without
\nthe order of the Magistrate in some form or another after  a
\nreport\twas  submitted\tto him.\t In State  v.  Vipra  Khimji
\nGangaram(2), it was held that where information relating  to
\nthe  commission\t of  a cognizable offence  is  given  to  an
\nofficer in charge of a Police Station under s. 154<\/a> Cr. P. C.
\n, and is followed by investigation by him, he is bound under
\ns.  173(1)  to\tforward his final  report  to  a  Magistrate
\nempowered  to  take cognizance of the offence  on  a  police
\nreport.\t This Court also in H. N. Rishbud and Inder Singh v.
\nThe  State  of\tDelhi<\/a>(3),  examined  the  scheme  of   these
\nprovisions  of the Code<\/a> of Criminal Procedure and held\tthat
\nupon  the  completion of  investigation,  the  investigating
\nofficer\t has to submit a report to the Magistrate  under  s.
\n173<\/a>,  Cr. P. C., in the prescribed form, furnishing  various
\ndetails,  whether  it  appears\tto  him\t that  there  is  no
\nsufficient  evidence  or reasonable ground,  or\t whether  he
\nfinds that there is sufficient evidence or reasonable ground
\nto  place the accused on trial.\t Similar  observations\twere
\nmade  by  the  Bombay  High Court in  State  and  Others  v.
\nMurlidhar  Govardhan and Others<\/a>(4).  In two of these  cases,
\nviz.,  .State v. Vipra Khimji Gangaram(2), and State &\tOrs.
\nv.  Murlidhar  Govardhan & Ors<\/a>.(4) the Courts  further\theld
\nthat  when a Magistrate passes an order on  the\t proceedings
\nunder  s.  173<\/a>, Cr.  P. C., that order is a  judicial  order
\nmade  by  him.\tFor purposes of considering  the  effect  of
\nthese  cases  in  the  case before us,\tit  is\tnot  at\t all
\nnecessary  to express any opinion on the correctness of\t the
\nview that the order passed under s. 173<\/a>, Cr.  P. C., by\t the
\nMagistrate is a judicial order when he either discharges the
\nbond under sub-s. (3) of s. 173<\/a> or takes cognizance under s.
\n190<\/a> (1) (b), Cr.  P.C. Even if it be accepted that the final
\norders to be made by the Magistrate are judicial orders, the
\nonly  conclusion that follows is that at the last stage,  on
\nreceipt\t of the report under s. 173<\/a>, the Magistrate  has  to
\nact in his judicial capacity.  Until that stage is  reached,
\nthere  is no intervention by the Magistrate in his  judicial
\ncapacity  or as a Court.  Consequently, until some  occasion
\narises\tfor  a\tMagistrate  to\tmake  a\t judicial  order  in
\nconnection with an investigation of a cognizable offence  by
\nthe  police, no question can arise of the Magistrate  having
\nthe power of filing a complaint under s. 195(1)(b)<\/a>,
\n(1)   16 Cr.  L. J. 161.\n<\/p>\n
(3)   [1955] I. S.C.R. 1150.\n<\/p>\n
(2)  A.I.R. (1952) Sau. 67.\n<\/p>\n
(4)  A.I.R. (1960) Bom. 240.\n<\/p>\n
541<\/span><\/p>\n
Cr.  P.\t C.  In such circumstances,  if\t a  private  person,
\naggrieved  by the information given to the police,  files  a
\ncomplaint for commission of an offence under s. 21<\/a> 1<\/a>, 1<\/a>.  P.
\nC., at any stage before a judicial order has been made by  a
\nMagistrate,  there can be no question, on the date on  which
\ncognizance  of that complaint is taken by the Court, of\t the
\nprovisions  of\ts. 195(1) (b) being attracted,\tbecause,  on
\nthat  date,  there would be no proceeding in  any  Court  in
\nexistence in relation to which the offence under s. 21<\/a> 1<\/a>, 1<\/a>.
\nP.  C., can be said to have been committed.  The  mere\tfact
\nthat  on a report being made to the police of  a  cognizable
\noffence, the proceedings must, at some later stage, end in a
\njudicial order by a Magistrate, cannot, therefore, stand  in
\nthe way of a private complaint being filed and of cognizance
\nbeing taken by the Court on its basis.\n<\/p>\n
The last submission made on behalf of the appellant was that
\na  very anomalous position can arise if a private person  is
\nallowed\t to file a complaint that the report to\t the  police
\nagainst him is false before investigation is completed.\t  It
\nwas  urged  that there can be cases where a  report  may  be
\nlodged against a person for commission of a serious  offence
\nlike murder, and while investigation is still going on,\t the
\naccused may file a complaint against the person, who  lodged
\nthe  report,  under s. 21<\/a> 1<\/a>, 1<\/a>. P. C., for  making  a  false
\nreport.\t  Subsequently,\t when  the  police  prosecute\tthat
\naccused,  there would, simultaneously, be two trials in\t one
\nof  which  the person accused of the murder would  be  under
\ntrial,\twhile in the other case the person, who\t lodged\t the
\nFirst  Information Report, would appear as the accused.\t  It
\nwas  suggested\tthat  a person accused of  a  serious  crime
\nshould not be given the advantage of putting his complainant
\nin  jeopardy  by  instituting a case  against  him  for\t the
\noffence\t under s. 21<\/a> 1<\/a>, 1<\/a>. P. C. We are unable to hold\tthat
\nit  is\tnecessary to interpret the law in such a way  as  to
\nnecessarily avoid such a situation.  There appears to be  no
\ndifficulty  in both cases being tried together in  the\tsame
\nCourt or one after the other by different Courts.  In  fact,
\neven  if we were to accept the submission made on behalf  of
\nthe  appellant, a similar situation can still arise.   There
\nmay   be  a  case  where  the  police  may  report  to\t the
\nMagistrate that the First Information Report was false,\t and
\nin such a case, according to the submissions made by learned
\ncounsel\t for  the appellant, the  Magistrate  receiving\t the
\nreport under s. 173<\/a>, Cr.  P. C., would be competent to\tfile
\na  complaint against the informant for the offence under  s.
\n21<\/a> 1<\/a>, 1<\/a>. P. C., in exercise of his power -under s.195(1)(b),
\nCr.   P. C. At the same time, there would be no bar to\tthat
\ninformant  filing  a complaint direct in the  Court  of\t the
\nMagistrate  on\tthe basis of his F. 1. R., so  that,  again,
\nthere  can  be two trials in the Court in one of  which\t the
\ninformant would be the accused, and in the other, the person
\ncharged\t in  the  First\t Information  Report  would  be\t the
\naccused.  The situation will not, therefore, differ  whether
\nwe accept the submission made on behalf of the appellant, or
\ndo not do so.\n<\/p>\n
542<\/span><\/p>\n
This   aspect\tis,  therefore,\t not  at  all\thelpful\t  in
\ninterpreting  the  scope  of s. 195(1)(b)<\/a>, Cr.\t P.  C.\t We,
\nconsequently,  hold that in this case the  complaint,  which
\nwas filed by the respondent, was competent and the  Judicial
\nMagistrate  at\tChandigarh,  in\t taking\t cognizance  of\t the
\noffence, only exercised jurisdiction rightly vested in\thim.
\nHe was not barred from taking cognizance of the complaint by
\nthe provisions of s. 195(1)(b)<\/a>, Cr.  P. C.\n<\/p>\n
In  this case, one more point that was canvassed  before  us
\nwas that the two offences under sections 204<\/a> and 385<\/a>, I.  P.
\nC., which were included in the complaint of the\t respondent,
\nwere so inter-mixed with the offence under s. 21<\/a> 1<\/a>, I.P. C.,
\nthat a trial for those two offences could not proceed if the
\ntrial for the offence under s. 21<\/a> 1<\/a>, I. P. C. was barred  by
\ns.  195(1)(b),\tCr.  P. C. That question need not  be  dealt
\nwith  by us in view of our decision that cognizance  of\t the
\noffence under s. 21 I,, 1. P. C., has been rightly taken and
\nthe  trial  for that offence is not  vitiated.\t The  appeal
\nfails and is dismissed.\n<\/p>\n
V.P.S.\t\t       Appeal dismissed.\n543<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. L. Sethi vs R. P. Kapur & Anr on 23 September, 1966 Equivalent citations: 1967 AIR 528, 1967 SCR (1) 520 Author: V Bhargava Bench: Bhargava, Vishishtha PETITIONER: M. L. SETHI Vs. RESPONDENT: R. P. KAPUR & ANR. DATE OF JUDGMENT: 23\/09\/1966 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. […]<\/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-258321","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. L. Sethi vs R. P. 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