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PETITIONER: GOVIND MEHTA

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT07/05/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1971 AIR 1708            1971 SCR  777  1971 SCC  (3) 329

ACT: Code of Criminal Procedure, 1898, s. 195(1)(c), 476-Transfer applications  before  District Magistrate of  cases  pending before  magistrate-Magistrate charged with offence under  s. 471 for committing forgery on the order sheets of the  cases on complaint by District Public Prosecutor-Applicability  of bar of s. 195(1) (c)-Magistrate cannot be said to be  "party to any proceeding in any court."

HEADNOTE: When  the appellant came to know that transfer  applications had  been filed in respect of certain cases on his  file  he recorded  orders  on the order sheets of  the  cases  making serious  allegations against the District Magistrate  before whom  the transfer applications were pending to  the  effect that ,the latter was attempting to interfere with the course of justice in the proceedings connected with the cases.  The Additional  District  Magistrate,  who  heard  the  transfer applications  sent  a report for initiation  of  proceedings against  the appellant for having committed forgery  in  the order-sheets.  On a complaint by the District Prosecutor the appellant was committed to the sessions to take trial  under ss.  167,  466  and 471 Penal Code.   ’The  appellant  filed applications  questioning the legality of the trial  on  the :grounds  that the mandatory pro-visions of ss. 195 and  476 of  the Code ,of Criminal Procedure were not complied  with. These  were rejected by the Sessions Judge.   Revisions  to the High Court were also dismissed, In appeal to this  Court it  was contended : (i) the authority to file the  complaint against  the appellant was the Court to which the  appellant was  subordinate at the material time as is mandatory  under s. 195(1)(b) and (c) and, therefore, cognizance could not be taken of the complaint filed by the District Prosecutor; and (ii)  there was violation of the mandatory provisions of  s. 476 of the Code, inasmuch as the complaint was not filed  by ,the Additional District Magistrate. Dismissing the appeal, HELD:(i)  The High Court has, after analysis  and  very elaborate  ,consideration, come to the conclusion  that  the charge  framed under s. 167 of the Penal Code is  justified. Therefore,  the contention that with a view ’to evading  the bar  of  cl. (b) of s. 195(1) the  prosecution  adopted  the

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device  of  not charging the appellant under s.  193,  Penal Code,  cannot  be accepted. As the charge  has  been  framed under  s.  167, the bar under s. 195(1)(b) and  (c)  has  no application. [782F, G.] (ii)The offence under s. 466, Penal Code, is not covered by cls.  (b) ,or (c) of s. 195(1).  Therefore s. 195  does  not operate as a bar in respect of this offence. [783A] (iii)Though  s. 471 of the Code is taken in by cl.  (c) of s. 195(1), for the clause to operate as a bar to  taking cognizance  of an offence under s. 471 it is essential  that the  offence  must be alleged to have been committed  "by  a party to any proceeding in any Court".  Merely on the  basis that the applications for transfer of certain cases  pending before  the  appellant  had been  filed  making  allegations against the appellant will not make the 778 appellant a party to those proceedings.  He was  functioning as  Magistrate and had no personnel interest in the  outcome of  the  transfer applications.  Therefore, cl.  (c)  of  s. 195(1) also does not bar the jurisdiction of the  magistrate to take cognizance of the offence under s. 471 of the  Code. [783B, G] (iv)Because s. 195(i) (b) or (c) does not apply to the case of the’ appellant section 476 of the Code does not come into the picture.  Even otherwise, the section does not apply for the  reason  that  the order of the  I  Additional  District Magistrate  clearly  shows that all the  findings  recorded’ against the appellant were only reasons for transferring the cases  from  the  file  of  the  appellant;  the  Additional District  Magistrate  himself had not taken  any  action  as contemplated under s. 476 of the Code.  U84B, F]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal NO. 154 of 1969. Appeal  by special leave from the judgment and  order  dated December  16,  1968  of the Patna  High  Court  in  Criminal Revision  Nos. 345 and 346 of 1968 and Criminal Misc.   Nos. 248 and 249 of 1968. Jyoti  Narain,  S.  N.  Misra  and  U.  P.  Singh,  for  the appellant. R. C. Prasad for the respondent. , The Judgment of the Court was delivered by Vaidialingam,  J.-The  accused in this  appeal,  by  special leave,  challenges the common order dated December 16,  1968 passed by the Patna High Court dismissing Criminal  Revision Nos.  345  and  346  of  1968  and  the  connected  Criminal Miscellaneous  Petition  Nos;  248 and  249  of  1968.   The Criminal Revisions and the Criminal Miscellaneous  Petitions were all directed against the orders passed by the  criminal courts  directing that the appellant should stand his  trial for  offences under Sections 167, 466 and 471 of the  Indian Penal Code (hereinafter called the Penal Code). The  facts  giving rise to the Criminal  Revisions  and  the Criminal Miscellaneous Petitions may be stated : In 1963 the appellant was posted at Patna as Magistrate, 1st Class, with special powers to try Bad Livelihood Cases (which are called B.  L.  Cases)  under Section 110 of the  Code  of  Criminal Procedure (hereinafter called the Code).  In September  1963 two  B.  L.  Cases Nos. 4 and 5 of  1963  had  been  started against   Kailash   Gope  and  Ramprit   Gope   and   others respectively.   Those cases were transferred to the file  of the appellant for disposal.  At the time of the transfer  of

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cases,  the  accused persons had already  been  enlarged  on bail.  But the appellant claims to have noticed some defects in  the  bail  bonds furnished by those  persons.   He  gave directions  that  the defects in the bail  bonds  should  be rectified.   On the parties failing to rectify the  defects, the appellant cancelled the bail bonds and remanded them  to jail custody.  The parties against whom 779 the  B.  L. Cases had been started, filed  two  applications before-the District Magistrate, Patna for transferring their cases  from  the file of the court of the appellant  to  the file of another Magistrate on the ground that they seriously apprehended  that  they will not get justice at  his  hands. After  coming  to  know  of  the  filing  of  the   transfer applications, the appellant recorded two orders on the order sheets of cases Nos. 4 and 5 making very serious allegations against  the  District Magistrate before whom  the  transfer applications were pending to the effect that the latter  was attempting  to interfere with the, course of justice in  the proceedings  connected  with  the case Nos.  4  and  5.  ’Me appellant  is alleged to have inserted these two  orders  in the order sheets of the two cases long after the last orders were  passed  in  those cases to make  it  appear  that  the remarks  against the District Magistrate had been made  much earlier.   The District Magistrate called for a report  from the appellant and he sent the records or the proceedings  to the  District Magistrate with his report.  In his report  he had  also stated that the matter is of great importance  and the  entire case and the order sheets should be kept  intact for  favour of any action that the High Court  may  consider fit and proper. In view of the allegations made by the appellant against the District  Magistrate  mentioned  in the  order  sheets,  the latter transferred the transfer applications to the file  of the  Additional  District Magistrate on November  11,  1963. The Additional District Magistrate after hearing the parties transferred both the cases from the file of the appellant to another  Magistrate  and  sent  a  report  to  the  District Magistrate   for  initiation  of  proceedings  against   the appellant  for having committed forgery in the order  sheets in both the B. L. Cases.  The report of the District  Magis- trate  was forwarded to the State Government,  who  accorded sanction for prosecuting the appellant.  The Senior District Prosecutor, Patna filed on December 21, 1964 a complaint  in the  Court  of the Sub-Divisional  Magistrate,  Patna  Sadar against the appellant.  In the complaint it was alleged that the appellant has committed offences under Sections 16 , 465 466   and  471  of  the  Penal  Code.   The   Sub-Divisional Magistrate  after taking cognizance of the offences  alleged to  have  been committed by the appellant,  transferred  the case  to  the  file of the  Magistrate,  1st  Class,  Patna, initiating  two  commitment proceedings in  respect  of  the alleged offences said to have been committed in each of  the B. L. Cases.  After examining the witnesses and perusing the documents,   the  Magistrate,  1st  Class,   committed   the appellant  to the Court of Sessions in both cases for  trial under Sections 167, 466 and 471 of the Penal Code. The two Sessions Cases were accordingly started in the court of  the  Assistant Sessions Judge, Patna  and  charges  were framed 780 against the appellant under Sections 167, 466 and 471 of the Penal Code. The  appellant  filed  two petitions  before  the  Assistant Sessions Judge that trial could not be proceeded with as the

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mandatory  provisions  of Sections 195 and 476 of  the  Code have  not  been complied with.  In fact his  prayer  in  the applications  filed before tie Assistant Sessions Judge  was that  he should be acquitted.  The Assistant Sessions  Judge by   his  order  dated  November  22,  1966   rejected   the applications filed by the appellant and declined to consider the  competency  of  trial as a preliminary  issue  at  that stage. The  appellant filed Criminal Revisions before the  Sessions Judge against the order made by the Assistant Sessions Judge with  a  prayer to quash also the commitment orders  of  the Magistrate.  He had also made a prayer for a reference to be made  to  the High Court to quash  the  proceedings  pending before  the  Assistant Sessions Judge.  The  Sessions  Judge rejected  the  applications  filed  by  the  appellant.   In consequence  the  appellant  filed  before  the  High  Court Criminal  Revision  Nos.  345 and 346 of  1968  against  the orders of the Sessions Judge declining to quash the  commit- ment proceedings and to making a reference to the High Court in  the two Sessions Cases against the appellant.   He  also filed  Criminal Miscellaneous Petitions Nos. 248 and 249  of 1968  to  quash the orders of the Magistrate, 1st  Class  to stand his trial for offences under Sections 167, 466 and 471 of the, Penal Code. The High Court rejected both the Criminal Revisions and  the Criminal Miscellaneous Petitions. Mr.  Jyoti Narayan, learned counsel for the  appellant,  has urged  that  the entire proceedings  initiated  against  the appellant  were  without jurisdiction inasmuch as  the  Sub- Divisional  Magistrate was not competent to take  cognizance of  the complaint filed by the Senior  District  Prosecutor. According  to the learned counsel the authority to file  the complaint  against the appellant was the court to which  the appellant  was  subordinate  at  the  material  time  as  is mandatory  ’under Section 195 (1) (b) and (c) of  the  Code. His further contention is that there has been a violation of the  mandatory provisions of Section 476 of the  Code.   The mere  sanction given by the State Government  under  Section 197 of the Code is not, in the circumstances, sufficient  to give  jurisdiction to the Magistrate to take  cognizance  of the offences alleged against the appellant. On the other hand, Mr. R. C. Prasad, learned counsel for the State urged that the offences alleged against the  appellant are under Sections 167, 466 and 471 of the Penal Code.  None of  these sections are covered by Section 195(1) (b) of  the Code.  Section 466 781 is not covered by Clause (c) of Section 195(1) of the  Code. Section 471, is, no doubt, taken in by the said clause,  but in  order  to attract that clause it is necessary  that  the offence  alleged should have been committed "by a  party  to any proceeding in any court " If the conditions mentioned in clause (c) are satisfied, then ... the ... complaint  should be  made in writing by the court before whom the offence  is committed  or  by some other court to which  such  court  is subordinate.  The appellant can by no means be characterized to be a party to any proceeding in any court, in respect  of the  offence under Section 471 alleged against him.   There- fore,  there is no violation of either Clause (b) or (c)  of Section 195 (1) of the Code.  Section 476 of the Code  also, according  to Mr. Prasad, does not apply as  the  conditions stated therein do not exist in the present case. Briefly  the  allegations in the complaint are  as  follows. The appellant has recorded serious allegations in the ’order sheets  against the then District Magistrate, Patna, Sri  R.

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C.  Sinha and the counsel Sri Mathura Sharma,  appearing  on behalf  of  the  accused  in the  B.  L.  Cases.   The  said allegations  and certain other entries  were  interpolations and  forgery.  The appellant has framed incorrect  documents with intent to cause injury and he has committed forgery  in judicial  records and used the forged documents  as  genuine with  intent to cause injury to others.  The  said  entries, interpolations  and  forgeries have been  committed  by  the appellant  between  November 7, 1963 and November  11,  1963 after  the  appellant received the order dated  November  6, 1963  of  the  District Magistrate Patna  directing  him  to submit  a report in respect of the allegations made  against him in the transfer applications filed by the parties in the B.  L. Cases.  The complaint alleged that the appellant  has committed  offences under Sections 167, 465, 466 and 471  of the Penal Code. We  have already indicated that the appellant has been  com- mitted to the Sessions to take his trial only under Sections 167, 466 and 471 of the Penal Code. According  to Mr. Jyoti Narayan, the point of time at  which the legality of the cognizance taken by the Magistrate to be adjudged is the time when cognizance is actually taken under Section  190  of  the Code and applying  that  test  in  the present  case, it will be seen that there has been a  breach of Section 195 (1) (b) and (c) and Section 476 of the  Code. The proposition that the point of time at which the legality of  the cognizance taken is to be adjudged is the time  when cognizance  is actually taken is laid down by this Court  in M. L. Sethi v. R. P. Kapur and another (1).  The  Magistrate has normally got jurisdiction to take cognizance under (1)  [1967] 1 S. C. R. 520. 782 Section  190  of the Code in  the  circumstances  enumerated therein.   Section  195  is  in fact  a  limitation  on  the unfettered powers of a magistrate to take, cognizance  under Section  190 of the Code.  Therefore, at the stage when  the magistrate  is taking cognizance under Section 190, he  must examine the facts of the complaint before him and  determine whether his power of taking cognizance under Section 190 has or has not been taken away by any of the clauses (a) to  (c) of Section 195 (1).  Therefore, it is needless to state that if there is a non-compliance with the provisions of  Section 195,  the  Magistrate  will have  no  jurisdiction  to  take cognizance of any of the offences enumerated therein. Mr. Jyoti Narayan on the basis of the decision of this Court reported  in  Basir-Ul-Huq and others v. The State  of  West Bengal(1)  urged that though Section 195 made no bar to  the trial of an accused person for a distinct offence  disclosed by same facts and which is not included within the ambit  of that  section,  the  provisions of that  section  cannot  be evaded by resorting to device, of charging a person with  an offence to which that section does not apply. We  have already referred to the sections of the Penal  Code under  which  the  appellant has  been  charged.   They  are sections  167,  466  and 471.   Admittedly,  none  of  these sections  are  covered  by Clause (b) of  Section  195  (1). Therefore  clause (b) prima facie will not in term  bar  the jurisdiction  of  the magistrate to take cognizance  of  the offence under Section 167 of the Penal Code.  The contention of  Mr. Jyoti Narayan is that the various averments made  in the  complaint  will  really show that  the  nature  of  the offence, if any, committed by the appellant will really come under  Section 192 and 193 I. P. C. If the charge  has  been framed under Section 193 of the Penal Code, it will squarely fall under Clause (b) of Section 195(1) of the Code.  With a

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view  to  really  evade the bar of  Clause  (b)  of  Section 195(1),  the  prosecution  has adopted  the  device  of  not charging the appellant under Section 193 of the Penal  Code, though  in  effect  they want him to  be  convicted  for  an offence  under  Section 193 of the Penal Code.  We  are  not inclined to accept this contention of the learned counsel. The  High Court after a careful analysis of the  allegations made in the complaint and the materials placed before it and after a very elaborate consideration of the matter has  come to the conclusion that the case of the prosecution that  the charge  framed  under  Section  167 of  the  Penal  Code  is justified.  The High Court has considered the ingredients of the  offence under Sections 192 and 193 as well  as  Section 167 of the Penal Code.  As the charge has been framed  under Section 167, the bar under Section 195 (1) (b)    or (c)  of the Code has no application.  We agree with the view (1) [1953] S. C. R. 836. 783 of the High Court that Section 195 (1) (b) or (c) is no  bar to  the  Magistrate taking cognizance for an  offence  under Section  167.  The offence’ under Section 466 of  the  Penal Code is, admittedly, not covered by Clause (b) or Clause (c) of  Section  195 (1) of the Code.  Therefore,  that  section does not operate as a bar in respect of this offence. Section  471 of the Penal Code, is no doubt is taken  in  by Clause  (c)  of  Section 195 (1).  But for  Clause,  (c)  to operate, as a bar to taking cognizance for an offence  under Section  471,  it  is essential that  the  offence  must  be alleged to have been committed "by a party to any proceeding in any court........... According to Mr. Jyoti Narayan,  the appellant  must be considered to be a party to the  transfer applications  filed  by the persons concerned in the  B.  L. Cases,  which transfer applications were pending before  the District Magistrate.  Allegations have been made against the appellant  in  the transfer applications  and  the  District Magistrate  has  called for a report from the  appellant  in respect  of  those  allegations.   The  Additional  District Magistrate  has  inquired into the allegations made  in  the transfer applications and given a decision transferring  the cases from the file of the appellant to another  Magistrate. AR  the  above  circumstances,  according  to  the   learned counsel, Will make the appellant a party to the  proceedings connected with the transfer applications, which were pending before the Additional District Magistrate. We  have  no  hesitation to reject  the  contention  of  the learned counsel.  Merely on the basis that the  applications for  transfer of certain cases pending before the  appellant had been filed making allegation against the appellant  will not make the appellant a party to those proceedings.  He was functioning as a Magistrate and he has no personal  interest in the outcome of the transfer applications. No   doubt when the allegations of prejudice have been made against the appellant, it was his duty as a subordinate court and as  an officer  against  whom allegations have been made  to  offer explanations in his report sent to by his superior or appel- late authority, namely, the Additional District  Magistrate. Therefore, Clause (c) of Section 195 (1) again does not  bar the jurisdiction of the Magistrate to take cognizance of the offence under Section 471 of the Penal Code. The  further contention of Mr. Jyoti Narayan is  based  upon Section  476 of the Code.  According to him  the  Additional District Magistrate has inquired into the applications filed by  the  counsel for the parties in the B.  L.  Cases  filed against  the appellant under Sections 466 and 471 I.  P.  C. The Additional District Magistrate inquired into the  matter

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behind  the  back of the appellant and after  examining  the witnesses  passed an order on December 16, 1963 holding  the appellant guilty of the said offences and 784 forwarded  a  copy of the order to the State  Government  to sanction  criminal  and administrative  action  being  taken against  the  appellant.  The complaint filed in  this  case suffers from an infirmity inasmuch as it has not been  filed by the Additional District, Magistrate.  We are not inclined to accept this contention either.  We have already held that Section  195 (1) (b) or (c) of the Code: does not  apply  to the  case of the appellant.  If that is so, that finding  is enough  to hold that Section 476 of the Code does  not  come into picture.  Even otherwise, Section 476 of the Code  will not apply as we will presently show.  The records, no doubt, show that the counsel appearing for the parties in the B. L. Cases in connection with the transfer applications filed  by them,  filed an application before the  Additional  District Magistrate  that  action should be taken by him  to  file  a complaint against the appellant for offences under  Sections 467  and  471 of the Penal Code.  It is also seen  that  the Additional  District  Magistrate has examined  certain  wit- nesses and ultimately passed an order on December 16,  1963. This  order  is  a  combined  order  dealing  with  transfer applications as well as the application filed by the  lawyer for   filing  a  complaint  against  the   appellant.    The Additional District Magistrate has held that prima facie the appellant  must  be  considered  to  be  guilty  of   having committed forgery and interpolations in the order sheets and therefore there is a good ground for transferring the B.  L. Cases from his file to another magistrate.  Accordingly, the Additional  District Magistrate transferred the B. L.  Cases to  the file of the Sub-Divisional Magistrate, Patna  Sadar. He  had  directed that a copy of the order be  sent  to  the State  Government  for considering the  question  of  giving sanction to take criminal and administrative action  against the   appellant.   It  may  Appear  prima  facie  that   the Additional District Magistrate was conducting a  preliminary inquiry under Section 476 (1) of the Code.  But a perusal of the order passed by the Additional District Magistrate  will clearly  show  that all the findings  recorded  against  the appellant were only reasons for transferring the B. L. Cases from  the file of the appellant.  He himself has  not  taken any  action as contemplated under Section 476 of  the  Code. He  was  merely dealing. with the transfer  application  and incidentally also with the applications filed by the lawyer. It was on the basis of this order that the State  Government ultimately gave the sanction.  The validity of the  sanction given  by  the State Government as such is  not  challenged. The contention is that over and above the sanction given  by the State Government, the provisions of Section 195 (1)  (b) and  (c)  and  Section  476 of the  Code  should  have  been complied with.  We have already held that the bar of  either clause  (b) or (c) to Section 195 (1) does not apply.   From our discussion of the nature of the inquiry conducted by the Additional District Magistrate on die complaint filed by the lawyer  appearing  on  behalf of the parties of  the  B.  L. Cases, it follows that Section 476 of the Code also 785 has no application.  In our opinion, none of the, provisions relied  on by the learned counsel operated as a bar  to  the jurisdiction  of  the Magistrate taking  cognizance  of  the complaint in this case. We  have already referred to the fact that in the  complaint the  offence  under Section 465 of the Penal Code  was  also

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included.  Section 463 of the Penal Code defines forgery and Section  465  deals with punishment for  the  said  offence. Section  463  of the Penal Code is, no doubt,  taken  in  by Clause  (c)  of Section 195 (1) of the Code.   Even  on  the basis  that  Section  465 of the Penal Code  will  also.  be covered  by Clause (c) as the offence under Section  463  is dealt  with  therein,  nevertheless,  Clause  (c)  will  not operate  as a bar to the, jurisdiction of the Magistrate  in taking cognizance of the said offence as the offence is  not alleged to have been committed "by a party to any proceeding in  any court........ We have already discussed this  aspect in the earlier part of our judgement.  We have also referred to  the fact that the appellant has been committed only  for the  offences under Sections 167, 466 and 471 of  the  Penal Code.   Section 465 of the Penal Code is not the subject  of the  committal order.  Any how we have discussed about  that section  also  as the appellant. was contesting  the  juris- diction of the Magistrate to take cognizance on the basis of Section 195 (1) (b) and (c). Mr. Jyoti Narayan referred to the contempt proceedings  that may be started against the appellant.  The question  whether action  for  contempt  can or cannot be  taken  against  the appellant  does  not  at  all  arise  for  consideration  at present. Finally, Mr. Jyoti Narayan contended that the complaint does not  disclose  any  offence  and  therefore  the   committal proceedings   should   be  quashed.   This   contention   is absolutely  devoid of any merit.  Whether the  appellant  is ultimately  found to be guilty or not is a different  point. The  allegations  in  the complaint  do  disclose  that  the offences    alleged    against   the    appellant    require investigation. Therefore,  it  cannot be said  that  no offence is disclosed in thecomplaint.  This contention is also rejected. Before  concluding, it must be emphasised that any  observa- tions  made  in  this  judgment  agreeing  with  the   views expressed  by the High Court are only for the  purpose  of dealing  with  the  contentions  raised  on  behalf  of  the appellant based on the provisions of Section 195 (1) (b) and (c) and Section 476 of the Code. In  the result the order of the High Court is confirmed  and this appeal dismissed. K.B.N.                      Appeal dismissed. 50 1 S. C. India/71 Appeal dismissed. 786