Kamlapati Trivedi Vs. State of West Bengal [1978] INSC 256 (13 December 1978)
KAILASAM, P.S.
KAILASAM, P.S.
SINGH, JASWANT KOSHAL, A.D.
CITATION: 1979 AIR 777 1979 SCR (2) 717 1980 SCC (2) 91
CITATOR INFO :
RF 1981 SC 22 (15,16) RF 1982 SC1238 (10)
ACT:
Code of Criminal Procedure 1898-S. 195(1)(b)-Scope of- 'In relation to any proceedings in any court' meaning of- Police submitting final report under s. 173 Cr. P.C. and Magistrate passing an order thereon-Whether judicial order- Attracting the bar in s. 195(1)(b).
HEADNOTE:
Section 195(1)(b) of the Code of Criminal Procedure provides that no court shall take cognizance of any offence punishable under any of the sections enumerated therein (one of which is s. 211) if such offence is alleged to have been committed in or in relation to any proceedings in any court.
The appellant filed a complaint with the police that the accused criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school of which he was the secretary. After investigation the police found that there was no evidence against the accused and therefore, the Magistrate discharged all the accused.
One of the accused thereupon preferred a complaint under s. 211 IPC alleging that the appellant had instituted criminal proceedings with the intent to cause injury to him and others knowing that there was no just or lawful ground and thereby caused pecuniary loss and agony to him.
The appellant moved the High Court for quashing the proceedings before the Magistrate because in the absence of a complaint in writing of the Magistrate himself, the Magistrate had no jurisdiction to take cognizance of the offence under s.211 IPC in view of the provisions of s. 195 (1)(b) of the Cr. P.C. The High Court refused to quash the proceedings.
On further appeal it was contended that an order passed by a Magistrate on a report submitted by the police under s. 173 Cr. P. C. being a judicial order the bar of s. 195(1)(b) would be attracted.
Allowing the appeal, ^ HELD: Per Koshal, J. (with whom Jaswant Singh, J.
agreed) 1. The complaint against the appellant was in respect of an offence alleged to have been committed in relation to a proceeding in court. In taking cognizance of it the Magistrate acted in contravention of the bar contained in s. 195(1)(b) because there was no complaint in writing either of the Magistrate or of a superior court.
[756 D]
2. Taking cognizance of any offence by a Magistrate under s. 190 is not a condition precedent for him to be regarded as a court. Magistrates are specifically labelled as courts by s. 6 of the Code of Criminal Procedure and, therefore, have to be regarded as such. It is true that a Magistrate also performs functions which are of an executive nature and do not fall within 718 the sphere of judicial duties and it may plausibly be argued that in the discharge of those functions he does not act as a court. But then he cannot but be regarded as a court when he acts judicially. Sections 496 and 497 which make provision for bail matters describe a Magistrate while dealing with those matters as a court and these sections operate at all stages of a case including that when the investigation has just started. Neither in these sections nor in s. 195 is there anything to show that the word "court" has been used in two different senses and therefore the legislature must be deemed to have used it in one sense wherever it occurs in the Code. [743 B, 742 D-H]
3. The well accepted position is that a court created by a statute, when it performs judicial functions, would be deemed to act as a court; and Magistrates' courts are regarded as such unless they are performing executive or administrative functions. [744 F-G].
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, [1931] AC 275 PC and Halsbury's Laws of England (3rd Edn.) Vol. 9 p. 342; Virinder Kumar Satyawadi v. The State of Punjab, [1955] 2 SCR 1013; Smt. Ujjam Bai v. State of U.P., [1963] 1 SCR 778; referred to.
4. The source of power exercised by the authority, i.e. whether it is executive or judicial power, would make all the difference in the determination of the question whether the authority acts as a court or merely as a quasi judicial tribunal. [746 F].
5. Section 4(2) of the Code of Criminal Procedure provides that "all words and expressions used herein and defined in the IPC and not hereinabove defined shall be deemed to have the meanings respectively attributed to them by the Code." In the matter of dispensation of criminal justice the Indian Penal Code (which contains the substantive law) and the Criminal Procedure Code (which deals with procedure) may be regarded as supplementary to each other. The term "Judge" and "Court of justice" used in ss. 19 and 20 of the Indian Penal Code give an indication of the attributes of a court as used in criminal law generally.
Although the term "court of justice" has not been used in the Cr. P.C. the expression "Judge" is used in s. 197 and, therefore, when a judge (including a Magistrate) who is empowered to act judicially and does so act, constitutes not merely a Court but a Court of Justice. [747 E, D, C, F-G].
6. The caption of Chapter XIV is not decisive of the question whether a particular provision contained in it is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a court. Although Chapter XIV is headed "Information to the police and their powers to Investigate", it is not confined to matters which are strictly concerned with the investigation stage but also deals with situations arising after the investigation has been finalised. For example, s. 172(2) clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but as a court. Similarly sections 169 and 170 are another instance in point in which an order passed by a Magistrate is a judicial order determining the rights of the parties after application of his mind. If that 719 be so the order passed by the Magistrate in the instant case must be characterised as a judicial act and therefore as one performed in his capacity as a court. [748 D, 747 G-748 C, 750 G, 751 E]
7. For a tribunal to be acting as a court, it is not necessary that the parties must have a right of hearing of adducing evidence at every stage of the proceedings before it. While passing interlocutory orders, issuing temporary injunctions etc., the presiding officer of a court does act as a court. [751 H-752 B].
8. All orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub-s. (3) of s. 173 of the Code discharging the accused or orders taking cognizance of an offence complained of) are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial or earlier, according to the exigencies of the situation obtaining at a particular stage and which involves, if the need be, the adducing of evidence and the decision of the Magistrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. [752 E-F].
Abhinandan Jha & Ors. v. Dinesh Mishra, [1967] 3 SCR 668; M. L. Sethi v. R. P. Kapur & Anr., [1967] 1 SCR 520;
referred to.
Kailasam, J. (dissenting) The restricted meaning given to "Court" in s. 195(2) Cr. P.C. read along with the conditions to be specified before a complaint is preferred by the court, indicate that the proceedings before a Magistrate in which he agrees with the report by the police under s. 169 Cr. P.C. and the proceedings in remand or bail applications during investigations will not amount to proceedings 'in or in relation to court.' [737 H].
1. The policy behind the bar against institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence is committed against public justice, it should be the concerned authority that should prefer a complaint and no one else. [723 H].
2. A court is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law [725 B-C].
3. It is settled law that when a Magistrate applies his mind on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for the purpose of ordering investigation under s. 156(3) Cr. P.C. or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence. [727 E]
4. When the Magistrate receives a report under s. 169 of the Cr. P.C. that there is not sufficient evidence or reasonable ground for suspicion and agrees 720 with it, he may be doing so in exercise of his judicial function but the question is whether he is acting as a court. Most of the requirement of a court are lacking at this stage. [727 F, 729 C].
5. To be classified as a court, an authority must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment.
This involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. [729 D-E].
6. Though the Magistrate in deciding whether or not to accept the report of a police officer under s. 169 Cr. P.C.
may be exercising his judicial mind and though there may be some of the trappings of the court, at this stage he cannot be termed as a court within the provisions of s. 195(2) Cr.P.C. At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate. The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage. It cannot, therefore, be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him. [729 B, F-H]
7. The proceeding under s. 167 Cr. P.C. is during investigation. The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in whole. If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction.
In investigation by the police the Magistrate is associated in a supervisory capacity. The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power. The trial commences only after the offence has been taken cognizance of. [735 E-F]
8. Section 496 provides as to when bail may be taken in non-bailable offences. The provisions of s. 496 and s. 497 speak of an accused person in custody charged with a non- bailable offence being produced before court at any stage of the proceedings. The section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a Court while in the custody of the police officer. Though there may be some trappings of a court and the section itself mentions the word 'court', the requirements for being a court for the purpose of s. 195(2) have not been satisfied. [735 H-736 D] 9(i) There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under s. 169 the Magistrate does not take any further action. The Bombay, Saurashtra and Andhra Pradesh High Courts in 1946 Bom. 7(11), 1952 Saurashtra 67(68) and 1969 AP 281 (287) have held that a Magistrate passing an order on a final report of police under s. 173 referring the case as false should be deemed to be a court passing a judicial order disposing of the information to the police, and that in such a case, the complaint of the Magistrate is necessary for the prosecution of the informant under s. 211 IPC . The Madras, Calcutta and 721 Allahabad High Court in AIR 1934 Mad. 175, AIR 1948 All. 184 FB and AIR 1916 Cal. 593 have held the other view. (ii) When no further proceedings are taken by the Magistrate or receipt of a police report under s. 169 there is no proceeding in or in relation to any court and therefore, no complaint by the court is necessary. [733 G-734 B].
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 45 of 1972.
Appeal by Special Leave from the Judgment and Order dated 18-8-71 of the Calcutta High Court in Crl. Revision No. 1006 of 1970.
Sukumar Ghosh for the Appellant.
M. M. Kshatriya and G. S. Chatterjee for the Respondent.
Jaswant Singh, J. concurred with the Opinion of Koshal, J. Kailasam, J. gave a dissenting Opinion.
JASWANT SINGH, J. I have had the advantage of going through the judgments prepared by my esteemed Brothers Kailasam and Koshal. While I find myself unable to agree with the view expressed by my learned Brother Kailasam, I am inclined to agree with the opinion of and the conclusion arrived at by my learned brother Koshal.
KAILASAM, J. This appeal is filed by special leave by Kamlapati Trivedi against the judgment of the Calcutta High Court in Criminal Revision No. 1006 of 1970 by which it refused to quash the proceedings which were taken cognizance of by the Magistrate, on a complaint given by one Satya Narayan Pathak.
Satya Narayan Pathak is the Secretary of Bhartiya Primary School in Howrah. The appellant before us, Kamlapati Trivedi, was a Head Teacher of the Bhartiya Primary School.
On 18th April, 1970 Satya Narayan Pathak served a Notice on the appellant calling upon him to show cause why he should not be found guilty of negligence of duty. On receipt of the Notice, the appellant attempted to remove certain records from the school but he was prevented. On the same day, that is, on 18th April, 1970 the appellant complained in writing to the Officer In-charge of Bally Police Station, Howrah at 21.40 hours that Satya Narayan Pathak and others criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school. The Police treating the complaint of the appellant as First Information Report took cognizance of an offence under Sections 147, 448 and 722 379 I.P.C. and registered it. A warrant of arrest was issued against Satya Narayan Pathak and others. Satya Narayan Pathak attended the Court on 21-5-1970 and 21-7-1970 the dates fixed for submission of the Police report. The Police Officer who investigated the case on finding no evidence against Satya Narayan Pathak and others, named as accused, submitted a final report and the magistrate agreeing with the report discharged all the accused.
As Satya Narayan Pathak felt that the appellant instituted criminal proceedings with intent to cause injury to him and others, for offences under Sections 147, 448 and 379 knowing that there was no just or lawful ground and had caused pecuniary loss and agony to him, he preferred a complaint against the appellant for offences under Sections 211 and 182 of the I.P.C. on 20th October, 1970. The learned Magistrate took cognizance of the case and summoned the appellant under Section 211 of the Indian Penal Code . fixing 10th December, 1970 for appearance of the appellant. On 16th November, 1970 the appellant appeared in court and was released on bail. The appellant moved the High Court of Calcutta for quashing the proceeding of the Magistrate on the ground that the cognizance taken by the Magistrate was bad and without jurisdiction for non-compliance of the provisions of Section 195(1) (b) of Criminal Procedure Code.
The learned Judge refused to quash the proceedings and discharge the accused, by judgment dated 18th August, 1971.
Against the order of the Single Judge of the High Court, the present appeal to this Court has been filed.
The main ground of attack in this appeal is that the High Court failed to appreciate the meaning of the words "in relation to any proceedings in any court" in Section 195 (1) (b) of the Code of Criminal Procedure. It is submitted that when a final report was submitted by the Police under Section 173 of Criminal Procedure Code and the Magistrate passed an order it would be a judicial order and the bar under Section 195 (1) (b) would be attracted.
The question that arises for consideration is whether on the facts of the case the bar against taking cognizance in Section 195(1)(b) is attracted. Section 195(1)(b) so far as it is relevant for the purpose of this case may be extracted:
"195(1) No court shall take cognizance (a) ....... .......
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 723 193, 194, 196, 195, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) ...............
(2) In clauses (b) and (c) of sub-section (1), the term "Court" (includes) Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.
While Section 190 of the Criminal Procedure Code enumerates the conditions requisite for initiation of proceedings, Section 195 bars taking cognizance of certain offences except on complaint by authorities specified in the Section. Section 195(1) (a) requires that the complaint should be by a public servant if the offences complained of are under Sections 172 to 188 of the Indian Penal Code . Sub- section (1)(b) refers to offences under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and requires the complaint in writing of the Court before whom the offence is alleged to have been committed in or in relation to any proceeding in any Court. Sub-section (c) relates to offences under Sections 463, 471, 475 or 476 when the offence is committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding a complaint in writing by the court is required. Sections 172 to 190 of the Indian Penal Code deal with offences constituting contempt of lawful authority of public servants. The bar to taking cognizance of offences under Sections 172 to 188 except on a complaint by the public servant is laid down in Section 195(1) (a) of the Code of Criminal Procedure. Chapter XI, of the Indian Penal Code relates to false evidence and offences against public justice. The cases of offence such as under Section 463, 471, 475 or 476 alleged to have been committed by a party in a proceeding in any court in respect of a document produced or given in evidence in such proceeding, the complaint in writing of such court is required. The policy behind the bar for institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence committed against public justice, it should be the concerned authority that should prefer a complaint and no one else.
724 In this appeal we are concerned with the question whether the offence under Section 211 I.P.C. is "committed in or in relation to any proceeding in any court". Before I deal with the question whether the offence is committed in or in relation to any proceeding in any court, I have determined the meaning of the word 'court' for the purpose of this Section. Sub-section (2) to Section 195 states that in clauses (b) and (c) of sub-section (1), the term "Court includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877. It may be noted that the word 'includes' was introduced by an amendment to sub-clause (b) Act 18 of 1923 instead of the word "means". In the Criminal Procedure Code 1974 the word 'means' has been introduced in the place of 'includes'. To some extent the use of the word 'includes' may widen the scope of the definition. In Halsbury's Laws of England, third edition, volume 9 at page 342, the meaning of court is given. At page 343 it is stated: "many bodies are not courts, although they have to decide questions, and in so doing have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality". Lord Sankley in Shell Co. of Australia Ltd. vs. Federal Commissioner of Taxation has enumerated some negative propositions as to when a Tribunal is not a court. The learned Judge observed "The authorities are clear to show that there are Tribunals with many of the trappings of a court which nevertheless are not courts in the strict sense of exercising judicial power". In enumerating the propositions Lord Sankey observed:
"In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision. (2) Nor because it hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects. (5) Nor because there is an appeal to a Court. (6) Nor because it is a body to which a matter is referred by another body".
In enumerating the negative propositions the learned Judge relied on the decision in Rex. vs. Electricity Commissioners.
In Shri Virinder Kumar Satyawadi vs. The State of Punjab. Venkatarama Ayyar, J. speaking for this Court quoted with approval the decision in Shell Co. of Australia (supra) and observed that the dis- 725 tinction between Courts and tribunals exercising quasi- judicial functions is well established, though whether an authority constituted by a particular enactment falls within one category or the other may, on the provisions of that enactment, be open to argument. After referring to the various decisions, the learned Judge observed "it may be stated broadly that what distinguishes a Court from a quasi- judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law.
This view was accepted by the Supreme Court in Smt. Ujjam Bai v. State of Uttar Pradesh where Justice Hidayatullah observed that though the taxing authorities follow a pattern of action which is considered judicial, they are not converted into courts of civil judicature and they still remain instrumentalities of the State and are within the definition of the State.
The answer to the question as to what is 'court' in the Criminal Procedure Code is not free from difficulty for in many places the word Magistrate as well as court is used in identical situations. Section 6 of the Criminal Procedure Code states that besides the High Courts and the Courts constituted under any law other than this Code for the time being in force there should be five classes of Criminal Courts in India, namely: (i) Courts of Sessions; (ii) Presidency Magistrate, (iii) Magistrates of the first class (iv) Magistrates of the second class, (v) Magistrates of the third class. Criminal courts according to this section therefore, consist of courts specified besides the High Court and courts that are constituted under any other law other than Criminal Procedure Code. The Code of Criminal Procedure provides not merely judicial enquiry into or trial of alleged offences but also for prior investigation thereof. Section 5 of the Code provides that all offences under Indian Penal Code shall be investigated, inquired into and tried and otherwise dealt with in accordance with the provisions hereinafter contained. For the purposes of investigation offences are divided into two categories 'cognizable' and non-cognizable. When information of the commission of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on investigation.
726 In case of non-cognizable offence the officer shall not investigate without the order of a competent Magistrate.
According to scheme of the Code investigation is preliminary to a case being put up for trial for a cognizable offence.
Investigation starts on an information relating to commission of an offence given to an officer in-charge of Police Station and recorded under Section 154 of the Code.
Investigation consists generally of various steps, namely proceeding to the spot-ascertainment of facts and circumstances of the case, discovery and arrest of suspected offender, collection of evidence relating to the commission of the offence which may consist of examination of various persons including the accused, and the reduction of the statement into writing such as places and seizure of things and formation of opinion as to whether on material collected there is a case to place the accused before the Magistrate for trial and filing of the charge-sheet under Section 173 of the Criminal Procedure Code . After the investigation is completed and a chargesheet is filed under Section 173 of the Criminal Procedure Code the question of taking cognizance arises. Section 190 of the Criminal Procedure Code lays down conditions necessary for initiation of proceedings. It provides for that any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence.
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police-officer or upon his own knowledge or suspicion, that such offence has been committed.
One mode of taking cognizance by the Magistrate is upon a report in writing of such facts made by any police officer. This stage is reached when the police officer submits a report under Section 173. When the Police Officer upon investigation forms an opinion that there is sufficient evidence or reasonable ground he shall forward the case to the Magistrate empowered to take cognizance of the offence upon a Police report. Under Section 190 of the Criminal Procedure Code , if the Magistrate to whom the report is sent by the Police Officer, agrees with the opinion of the police officer, he proceeds to take cognizance, and issues process under Section 204. The judicial opinion is unanimous that when once Magistrate taking cognizance of an offence finds that there is sufficient ground for proceeding and issues 727 summons or a warrant as the case may be, he takes cognizance, and the trial begins, and further proceedings will be undoubtedly before a criminal court.
In Jamuna Singh and others v. Bhadai Sah, Das Gupta, J.
observed "The Code does not contain any definition of the words 'institution of a case'. It is clear, however, and indeed not disputed, that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein." When once this stage is reached the requirement of Section 211 of the Indian Penal Code "institutes or causes to be instituted any criminal proceeding" is satisfied. The second part of Section 211 I.P.C. refers to falsely charging a person with having committed an offence. A person falsely charging another of a cognizable offence before a police officer will come within the mischief of the second part of the Section.
The crucial question that arises in this case is whether it can be said that when a person falsely charges another person of a cognizable offence before a Police Officer and when the Police Officer upon investigation finds that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate under Section 169 and the Magistrate agrees with him, an offence under Section 211 is committed in or in relation of any proceeding in any court'. It is settled law that when a Magistrate applies his mind under Chapter XVI that is on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for purpose of ordering investigation under Section 156 (3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence vide R. R. Chari v. State of U.P. and in Gopal Das v. State of Assam. When the Magistrate receives a report under Section 169 of the Criminal Procedure Code that there is not sufficient evidence or reasonable ground for suspicion and agrees with it, he may be doing so in exercise of his judicial function but the question is whether he is acting as a court.
In Abhinandan Jha & Ors. v. Dinesh Mishra this Court has pointed out the difference between the report by the police filed under Section 170 of the Criminal Procedure Code which is referred to as a charge-sheet and a report sent under Section 169 which is termed variously in different States as either 'referred charge', 'final report' or 728 summary. This court observed that when the police submitted a report that no case has been made out for sending up accused for trial it is not open to the Magistrate to direct the police officer to file a chargesheet. In such circumstances the Magistrate is not powerless as it is open to him to take cognizance of an offence on the report submitted by the Police under Section 190(1)(c) of the Criminal Procedure Code. Dealing with the position of the Magistrate when a report is submitted by the police that no case is made out for sending a case for trial the court observed that it is open to the magistrate to agree with the report and close the proceedings. Equally it will be open to the Magistrate if he takes a different view to give directions to the police under Section 163(1) to make further investigations. After receiving a report from the police on further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under Section 190(1) (c) notwithstanding the opinion of the police expressed in final report. This court held in conclusion that there is no power expressly or impliedly conferred on the Magistrate under the Code to call upon the police to submit a charge-sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending the case for trial.
The same view is expressed in the decision in Kamla Prasad Singh v. Hari Nath Singh and another. In R. N. Chatterji v.
Havildar Kuer Singh, A. N. Ray J. as he then was, followed the decision in Abhinandan Jha & Ors. v. Dinesh Mishra (supra) and held that the provisions of the Criminal Procedure Code do not empower the Magistrate to direct the police officer to submit a charge-sheet but if he is of the opinion that the repot submitted by the police requires further investigation, the Magistrate may order investigation, under Section 163 of the Criminal Procedure Code . It was held that directing further enquiry is entirely different from asking police to submit a charge-sheet. The only source open for the Magistrate if he is not satisfied with the police report under Section 169 is to take cognizance of an offence under Section 190(1) (c) of the Criminal Procedure Code. It may be noted that in M. L. Sethi v. R. P. Kapur & Anr., it was held that if the Magistrate disagrees with the opinion of the police he may proceed to take cognizance on the facts stated in the police under Section 190(1) (b).
It is clear that when a Magistrate applies his mind to the contents of a complaint before him for the purpose of proceeding under Section 729 200 and the other provisions of the Code following it, he is taking cognizance of an offence as held by five judges Bench decision of this Court in Mowu v. The Superintendent, Special Jail, Nowgong, Assam and Others. The position regarding the case in which Magistrate accepts a report under Section 169 Criminal Procedure Code is different. On an analysis of the various sections, it appears that a report under Section 169 of the Cr. P. C. and the magistrate agreeing with it, are proceedings under Chapter XIV which relates to information to the police and their power to investigate. The Chapter provides for supervision by the Magistrates of the investigation by the police. It has been laid down that Magistrate has no option except to agree with the report of the Police Officer unless he proceeds to take cognizance of the offence under Section 190(1) (c). Though the Magistrate in deciding whether to accept the report or not may be exercising his judicial mind, it cannot be said that he is acting as a court. The Magistrate acting at this stage cannot be said to fulfil the positive requirements enumerated by Venkatarama Ayyar, J. in Shri Virinder Kumar Satvawadi v. The State of Punjab (supra). To be classified as court it must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment and to decide in a judicial manner. It involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. As pointed out by Lord Sankey in Shell Co. case (supra) though there may be some of the trappings of the court the magistrate at this stage cannot be termed as a court within the provisions of Section 195(2) Cr. P. C. The magistrate may decide the question finally which may affect parties but that is not enough. Even when a tribunal bears witnesses on oath and decides rights of parties and a right of appeal is provided, it may not, as observed by Lord Sankey, become a court. Most of requirements of a court are lacking when the Magistrate agrees with the report of the police officer under Section 169. At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate. The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage. It cannot be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him.
730 Taking into account the scheme of the Criminal Procedure Code, the function of the Magistrate in agreeing with a report under Section 169 can only be said to be in the course of investigation by the police. In Chapter XIV which relates to information to the police and their powers to investigate, the Magistrate having jurisdiction over the area and empowered to take cognizance is given certain supervisory powers. Thus the Police Officer incharge of Police Station is required to refer the informant to the Magistrate when information as to a non-cognizable offence is received by him. The Police Officer shall not investigate a non-cognizable case without the orders of the Magistrate though the Police Officer is entitled to investigate a cognizable offence without the order of the Magistrate. The Magistrate under Section 190 is entitled to order an investigation into a cognizable offence. Section 157 Cr.
P.C. requires the officer incharge of the Police Station to send a report to the Magistrate empowered to take cognizance of the offence of which he has received information. Under Section 159 Crl.P.C. the Magistrate receiving a report under Section 157 may proceed or depute any magistrate subordinate to him to proceed to hold a preliminary inquiry into the case. Section 164 empowers Presidency Magistrate or any Magistrate of first-class or any Magistrate of second class specially empowered by the State Government to record a statement or confession made to him in the course of an investigation under this Chapter. When a search is conducted by a Police Officer, he is required to send copies of the record to the nearest Magistrate empowered to take cognizance. Section 167 of the Crl.P.C. requires that when investigation cannot be completed within 24 hours and when there are grounds of believing that the accusation or information is well-founded, the Officer incharge of the Police Station shall transmit to the nearest Magistrate the copy of the entries in the diary relating to the case and forward the accused to such Magistrate. The Magistrate to whom the accused is forwarded is empowered to authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days. If the period is to exceed 15 days he is required to forward the accused to the Magistrate having jurisdiction. When an investigation is completed and when the Police Officer is of the opinion that there is sufficient evidence, he shall forward the accused to the Magistrate along with his report. The final report of the Police Officer is to be submitted under Section 173. It may be noticed that Section 169 does not require the Police Officer to send a report as he is required under Section 170 when he is of the opinion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate. The only precaution he has to take is to take steps to ensure the appearance of 731 the accused in the event of the Magistrate empowered to take cognizance wants his presence. A perusal of the various Sections under Chapter XIV shows that the Magistrate is associated with the investigation by the Police in a supervisory capacity. It has been laid down that when the Magistrate applies his mind for ordering an investigation under Section 156(3) of the Cr.P.C. or for issue of a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. The Magistrate during this stage functions as a Magistrate during investigation. As the trial has yet to commence it cannot be said that he is acting as a court.
Before leaving this aspect of the case I would refer to some of the decisions which were cited before us on this point. Strong reliance was placed by the learned counsel for the appellant on a decision in J. D. Boywalla v. Sorab Rustomji Engineer. Boywalla, the appellant in the case, lodged a complaint with the police against the respondent Sorab Rustomji Engineer for cheating in respect of three rupees. The police after investigation submitted a report stating that no offence has been disclosed against him with a request that he may be discharged and his bail bond cancelled. On receipt of the report the Magistrate discharged the accused and cancelled the bail bond. Sorab Rustomji Engineer, against whom the complaint was filed, filed a case under Section 211 of the I.P.C. alleging that the appellant Boywalla instituted criminal proceedings against him knowing that there is no just or lawful ground for such proceedings. The appellant contended that it is the Magistrate that can lodge a complaint under Section 195 (b) of the Cr.P.C. and that no court shall take cognizance of the offence punishable under Section 211 of the I.P.C. when such offence is alleged to have been committed in or in relation to any proceeding to a court except on a complaint in writing of such court. John Beaumont Chief Justice held that in doing what he had done the Magistrate had taken cognizance of the case and therefore under Section 195(b) Cr.P.C. it was the Magistrate alone who could lodge a complaint. Two reasons were given by the Chief Justice. The second ground with which we are concerned at the moment deals as to the capacity in which Magistrate acted when he accepted the police report under Section 169 and discharged the accused. The Chief Justice expressed that after considering the report if the Magistrate thinks that there is no sufficient ground of proceeding he may discharge the accused and though the Code does not expressly provide there can be no doubt that when the Magistrate can act upon the report of the 732 police officer and discharge an accused person without further inquiry only by acting in his judicial capacity which should be open to review by the High Court. The learned Chief Justice proceeded on the basis that before a magistrate passed orders on the report of the police under Section 169 he should take cognizance of the offence. The Chief Justice thus took the view that (1) the Magistrate before discharging the accused in pursuance of a police report under Section 169 takes cognizance and (2) acts in his judicial capacity. While there could be no doubt that the magistrate is acting judicially, I am unable to hold that before a magistrate discharges an accused agreeing with the report of the police under Section 169 Cr. P.C., he takes cognizance. This Court has held that the stage of laking cognizance arises only when he acts under Section 190(1) (b). Further this Court has taken the view that if the magistrate does not agree with a police report under Section 169 Cr.P.C. , he can only proceed under Section 190(1)(c). The facts of the case were the accused was arrested and later after the order of discharge the bail bond was cancelled. The circumstances of the arrest of the accused his being released on bail during investigation and his discharge after the police report were the reasons for the learned Chief Justice coming to the conclusion that the Magistrate was acting in a judicial capacity. The learned Judge observed "indeed it is a novelty to me to hear it suggested that there is any authority which can make an administrative order discharging the arrested person from judicial capacity". But as he has pointed out acting in a judicial capacity alone is not enough. The Supreme Court in M. L. Sethi's case (supra) expressed its dissent from the view taken in Ghulam Rasul v. Emperor where the learned Judge held that a complaint by criminal court is necessary when a false report is made in an investigation by the police. The facts of the case are that Ghulam Rasul made a report to the police that a certain person stole his watch from his car. On investigation the police came to the conclusion that the report was false and that the watch had been removed by the petitioner himself. The case was reported to the Magistrate for cancellation. A complaint was given against Ghulam Rasul for offence under Sections 193 and 211 I.P.C. and the Magistrate took cognizance and recorded the evidence of the prosecution witnesses and framed charge against him. Accepting the contention on behalf of Ghulam Rasul the High Court held that in view of section 195(1) (b), Criminal Procedure Code, the Magistrate's taking cognizance of the offence was illegal.
The Court observed: "I am clear that the words in this sub- section 'in relation to any proceeding in any court' apply to this case of a false report or a false 733 statement made in an investigation by the police with the intention that there shall in consequence of this, be a trial in the Criminal Court". The facts of the case show that a report under Section 169, Criminal Procedure Code was submitted by the police for cancellation and the Magistrate dropped further proceedings. The Supreme Court referring to the view of the High Court observed: "He appears to have held the view that the Magistrate having passed an order of cancellation, it was necessary that the complaint should be filed by the Magistrate, because section 195(1)(b) had become inapplicable. If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding following the police investigation was contemplated we consider that his decision cannot be accepted as correct". This decision makes it clear that even though the Magistrate passed an order of cancellation on the report by the police under section 169 if the Magistrate has not taken any proceeding, a complaint by the Magistrate is not necessary. The decision of the Supreme Court covers the facts of the present case so far as the discharge of the accused on a police report under section 169, Criminal Procedure Code , is concerned.
Referring to the Bombay decision, the Supreme Court observed that "the decision of the Bombay High Court in J. D. Roywalla v. Sorab Rustomji Engineer (supra) is also inapplicable because in that case also orders were passed by a Magistrate on the final report made by the police after investigation of the facts in the report, in respect of which complaint under section 211 I.P.C. was filed". In Sethi's case (supra) at the stage when the complaint was filed by the respondent under Section 211 I.P.C., the police were enquiring into the appellant's report. When there is no proceeding pending before any court at the time when the applicability of section 195(1) (b) is to be determined, a complaint by the court is not necessary. The decision in Bombay case is therefore not applicable to the facts in Sethi's case as in the Bombay case orders were passed by the magistrate on the final report of the police.
There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under Section 169 the Magistrate does not take any further action. The Bombay, Saurashtra and Andhra Pradesh High Courts in 1946 Bombay 7(11), 1952 Saurashtra 67(68) and 1969 A.P. 281 (287) have held that a Magistrate passing an order on a final report of police under Section 173 referring the case as false should be deemed to be a Court passing a judicial order disposing of the information to the police, and 734 that in such a case, the complaint of the Magistrate is necessary for the prosecution of the informant under Section 211 of the I.P.C. The Madras, Calcutta and Allahabad High Courts in A.I.R. 1934 Madras 175, A.I.R. 1948 Allahabad 184 Full Bench and A.I.R. 1916 Calcutta 593 following 1921 Patna 302 and 1917 Calcutta 593 have held the other view. For the reasons already stated I hold that when no further proceedings are taken by the Magistrate on receipt of a police report under Section 169 there is no proceeding in or in relation to any court and, therefore, no complaint by the court is necessary.
The next question which arises in this case is that whether a complaint by the court is necessary because of the arrest and release on bail of the accused Satya Narayan Pathak in consequence of the complaint given by the appellant. The police after taking cognizance of the complaint by Kamlapati Trivedi, the appellant in this case, took cognizance under Sections 147, 448 and 379 I.P.C., registered a case and issued a warrant of arrest against Satya Narayan Pathak and five others. They all surrendered in court on 6-5-1970 and were released on bail on a bond of Rs. 200/- each. They attended court on 21-5-1970 and 21-7- 1970 when the police report was expected to be filed. The High Court found that there was a police investigation and during investigation Satya Narayan Pathak surrendered before the Magistrate who released him on bail and police submitted a final report and the Magistrate discharged him from his bail bond. On this evidence the High Court came to the conclusion that the proceedings before the court become a criminal proceeding only when the court takes cognizance and not before. On these facts the question arises whether the proceedings when the accused were released on bail and later after the receipt of the report from the police they were discharged, would be in or in relation to a court. It was submitted that when in pursuance of a complaint the accused was arrested and remand and bail proceedings were subsequently taken before a Magistrate in connection with the report to the police, they were proceedings in court and a complaint by the court was necessary. In support of the proposition a decision in Badri v. State was relied upon. In that case the Allahabad High Court held that an offence under section 211, Indian Penal Code, alleged to have been committed by the appellant by making a false report against the complainant and others to the police, was an offence in relation to the remand proceedings and the bail proceedings because those proceedings were a direct consequence of the making of the report and the subsequent arrest and, therefore, the case is governed by section 195(1)(b) of Code of 735 Criminal Procedure. The Supreme Court in Sethi's case (supra) at page 538 did not consider it necessary to express any opinion whether remand and bail proceedings before the Magistrate can be held to be proceedings in a court nor did they consider the question whether the charge of making a false report could be rightly held to be in relation to these proceedings. The position, therefore, is the question whether remand and bail proceedings before the Magistrate in pursuance of information given to the police of a cognizable offence are proceedings in or in relation to a court is left open.
To determine whether the remand or bail proceedings are proceedings in a court it is useful to refer again to Chapter XIV of the Criminal Procedure Code. On a complaint by an informant relating to a commission of a cognizable offence the investigation starts. The information may not be against any person. When an investigation cannot be completed in 24 hours after the arrest of the accused and when the officer is of the view that there are grounds for believing that the accusation or information is well-founded the officer is required to transmit to the nearest Magistrate a copy of the entries in the diary and to forward the accused to the Magistrate. When the accused is produced the Magistrate is required to act under Section 167(2) of the Criminal Procedure Code. The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in whole. If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary, he may order the accused to be forwarded to a Magistrate having jurisdiction. We have seen that in investigation by the police the Magistrate is associated in a supervisory capacity. The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power. Even the Magistrate who has jurisdiction to try the accused when acting under the Section is not acting as a court for the words used are the Magistrate having jurisdiction. The trial commences only after the offence has been taken cognizance of. The proceedings under Section 167, is during investigation. But it has to be noted that when the bail and remand proceedings are before the Magistrate, he has to act judicially. If the accused applies for bail the Magistrate has to act judicially and take into account the facts of the case before he decides to release the accused on bail or refuse bail. Chapter XXXIII Cr. P. C. deals with bail.
Section 496 provides as to when bail may be taken of non- bailable offences. The provisions of Sections 496 and 497 speak of an accused person in custody charged with a non- bailable offence 736 being produced before court at any stage of the proceedings.
The Section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a court while in the custody of the police officer.
According to the wording of Section, the bail proceedings would be before a court even though the accused is produced while in custody of a police officer. Even though the word 'court' is used in Sections 496 and 497, we have to consider whether proceedings can be said to be taken before a court as defined in Section 195(2) of Cr. P. C. In deciding the question we have to bear in mind the restricted meaning given to the word in the observations of Lord Sankey in Shell Company's case reported in Shell Co. of Australia Ltd.
v. Federal Commissioner of Taxation (supra) and the tests laid down by Venkatarama Ayyar, J. in Shri Virinder Kumar Satyawadi v. The State of Punjab and Hidayatullah, J. in Smt. Ujjam Bai v. State of Uttar Pradesh (supra). Though there may be some trappings of a court and the section itself mentions the word 'court', I feel that the requirements for being a court for the purpose of Section 195(2) have not been satisfied. The intention of the legislature in prescribing a bar when an offence under Chapter XI of I.P.C. is committed, that is, when false evidence is given or offence against public justice is committed is that the court should decide whether a complaint should be given for an offence committed before it and if satisfied should prefer the complaint itself. Before a court gives a complaint, it will have to satisfy itself that a prima facie case is made out and that it is in the interest of justice that a complaint should be lodged. The purpose, therefore, is that a private party should not be permitted to make a complaint regarding offences committed in or in relation to court proceedings. In an investigation by the police the complainant is only in the background. He might not have mentioned the name of any person as being involved in the crime. Taking all the circumstances into account, I am, in the absence of the complainant, unable to hold that remand and bail proceedings before cognizance of the offence is taken could be held to be proceedings before a court bearing in mind the restricted meaning given to the word 'court'.
The second question is whether the charge of making of the false report could be rightly held to be in relation to proceedings in court. When an information is given of a commission of a cognizable offence, the police register a case and start investigation. For facilitating the investigation provision for remand is provided for. If the investigation is not completed within 24 hours the police may ask for further remand and the court may grant according to provisions of section 167 of 737 Criminal Procedure Code. At this stage though the remand and bail proceedings arise as a consequence of complaint given, it cannot be said that it is the direct result of a false report to a court for no one might have been mentioned in the complaint as a suspect. Further, it will be seen that the complainant is not entitled to appear in court and oppose grant of bail. The court dealing with the remand or bail proceedings cannot be said to fulfil the conditions laid down by Venkatarama Ayyar as the parties are not entitled as a matter of right to be heard in support of their claim and adduce evidence in proof of it.
The Magistrate dealing with remand proceedings or a bail petition does not hear the complainant. He acts on the material that is placed before him by the police during investigation. The complainant has no opportunity of substantiating or presenting his case before the Magistrate at this stage. If the action of the Magistrate in agreeing with the report under section 169 Cr. P.C. and the proceedings taken during investigation by way of remand or bail are understood to be proceedings in or in relation to court a complaint may be preferred by the Magistrate without giving an opportunity to the complainant to satisfy the Magistrate about the truth of his case. In this connection, it is useful to refer to section 476 of the Cr. P. C. The section provides that when any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, sub-section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction. Before making a complaint a preliminary inquiry is contemplated. Normally, it would mean that the person against whom a complaint is preferred has an opportunity to show why a complaint should not be preferred against him. These stages are not reached in a case when the Magistrate has still to take cognizance of an offence. The restricted meaning given to the Code in section 195(2) Cr. P.C. read along with the conditions to be specified before a complaint is preferred by the court, inclines me to hold that the proceedings before a Magistrate in which he agrees with the report by the police under section 169, Criminal Procedure Code , and the proceedings in remand or bail applications during investigation will not amount to proceedings in or in relation to court.
738 In the result I agree with the High Court that there was no proceeding in or in relation to a court, and, therefore, section 195(1)(b) of Criminal Procedure Code is not attracted. The appeal is dismissed.
KOSHAL, J. I have had the advantage of going through the judgment prepared by my learned brother, Kailasam, J.
Having given it my best consideration, I regret that I have to differ with him.
2. The facts giving rise to this appeal lie in a narrow compass and may be stated in brief. The appellant before us is one Kamlapati Trivedi (hereinafter called Trivedi) on whose complaint a case was registered under sections 147, 448 and 379 of the Indian Penal Code at the Bally Police Station on the 18th April, 1970 against six persons including one Satyanarayan Pathak (called Pathak hereinafter). Warrants were issued for the arrest of the accused, all of whom surrendered on the 6th of May, 1970 in the Court of the Sub-Divisional Judicial Magistrate, Howrah (referred to later herein as SDJM) who who was the magistrate having jurisdiction and who passed an order releasing them on bail.
The police held an investigation culminating in a report dated the 25th of July, 1970 which was submitted to the SDJM under section 173 of the Code of Criminal Procedure , 1898 (the Code, for short). The contents of the report made out the complaint to be false and included a prayer that the accused "may be released from the charge".
On the 31st of July, 1970 the SDJM, agreeing with the report, passed an order discharging the accused.
On the 20th of October, 1970 Pathak filed a complaint before the SDJM accusing Trivedi of the commission of offences under sections 211 and 182 of the Indian Penal Code by reason of the latter having lodged with the police the false complaint dated the 18th of April, 1970. Trivedi appeared in the Court of the SDJM on the 16th of November, 1970 in response to a summons issued by the latter only in respect of an offence under section 211 of the Indian Penal Code and was allowed a fortnight to furnish security while the case itself was adjourned to the 10th of December, 1970.
It was then that Trivedi presented a petition dated the 23rd December, 1970 to the High Court at Calcutta praying that the proceedings pending against him before the SDJM be quashed inasmuch as the latter was debarred from taking cognizance of the offence under section 211 of the Indian Penal Code in the absence of a complaint in writing of the SDJM himself in view of the provisions of clause (b) of sub- section (1) of section 195 of the Code. Sub-sections (1) and (2) of that section may be reproduced here for ready reference:
739 195. (1) No Court shall take cognizance- (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code , except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is sub-ordinate; or (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
(2) In clauses (b) and (c) of sub-section (1), the term "Court" includes a Civil, Revenue, or Criminal Court, but does not include a Registrar or sub- Registrar under the Indian Registration Act, 1977." It was argued before the High Court that part of the proceedings which started with the registration of the case by the police on the 18th of April, 1970 at the instance of Trivedi and culminated in the order dated the 31st of July, 1970 discharging Pathak and his five co-accused constituted proceedings before a Court, that the offence under section 211 of the Indian Penal Code attributed to Trivedi was committed in or, in any case, in relation to such part and therefore the case against Trivedi fell within the ambit of clause (b) above extracted. The argument did not find favour with the High Court and the learned Single Judge before whom it was made rejected it with the following observations:
"The police submitted a final report and so the Magistrate discharged him from his bail bond but there was no criminal proceeding before the Court against Satyanarayan. The proceeding before the Court becomes a criminal proceeding only when a Court takes cognizance and not before. Whatever the view of the other High Court’s may be, the consi
