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PETITIONER: KAMLAPATI TRIVEDI

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT13/12/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. SINGH, JASWANT KOSHAL, A.D.

CITATION:  1979 AIR  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, ^

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    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

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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

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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

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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].

JUDGMENT:      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

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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

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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-

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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

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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

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    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 Courts 740 may be,  the consistent  view of  this High Court is that so long as cognizance is not taken it cannot be said that there was a  proceeding pending  in the  Court in  respect of that offence and since no proceeding was pending before the Court section 195 (1)(b) of the Code is not attracted."      It is  against the  order of  the High  Court (which is dated the  18th of August, 1971) that Trivedi has instituted this appeal by special leave.      3. Before  us the  argument which  was put  forward  on behalf of  Trivedi for  the consideration  of the High Court has been  repeated and  it has been urged strenuously by his learned counsel  that in  so far as the SDJM passed an order on the  6th of  May, 1970  releasing him  on bail  and  then another on  the 31st of July, 1970 discharging him, the SDJM acted judicially  and therefore  as a  Court, that it cannot but be  held that these orders were passed in proceedings in relation to  which the  offence under  section  211  of  the Indian Penal  Code was  alleged to  have been  committed and that consequently  the SDJM  had  no  jurisdiction  to  take cognizance of that offence.      4. The points requiring determination therefore are:           (a) Whether  the SDJM  acted as  a Court  when  he      passed the  orders dated  the 6th  of May, 1970 and the      31st of July, 1970 or any of them?           (b) If  the answer  to  question  (a)  is  in  the      affirmative, whether  the offence  under section 211 of      the Indian  Penal Code  attributed to  Trivedi could be      regarded as  having been  committed in  relation to the      proceedings culminating  in either  or both of the said      orders?      5. In  finding an answer to question (a) I attach quite some importance  to the provision of sections 6, 496 and 497 of the Code. These sections are extracted below:           "6.  Besides   the  High   Court  and  the  Courts      constituted under  any law other than this Code for the      time being  in force,  there shall  be five  classes of

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    Criminal Courts in India, namely:-           I. Courts of Session:           II. Presidency Magistrates:           III. Magistrates of the first class:           IV. Magistrates of the second class:           V. Magistrates of the third class." 741           "496. When  any person other than a person accused      of a  non-bailable  offence  is  arrested  or  detained      without warrant  by an  officer in  charge of a police-      station, or  appears or  is brought before a Court, and      is prepared  at any  time while  in the custody of such      officer or  at any stage of the proceedings before such      Court to  give bail,  such person  shall be released on      bail: Provided  that such officer or Court, if he or it      thinks fit,  may, instead  of  taking  bail  from  such      person, discharge  him on  his executing a bond without      sureties for his appearance as hereinafter provided :           "Provided, further,  that nothing  in this section      shall be  deemed to  affect the  provisions of  section      107, sub-section (4), or section 117, sub-section (3)."           "497. (1)  When any person accused of or suspected      of  the  commission  of  any  non-bailable  offence  is      arrested or  detained without  warrant by an officer in      charge of  a police  station, or  appears or is brought      before a  Court, he  may be  released on  bail, but  he      shall not  be so  released if  there appear  reasonable      grounds for  believing that  he has  been guilty  of an      offence punishable with death or imprisonment for life:           "Provided that  the  Court  may  direct  that  any      person under  the age  of sixteen years or any woman or      any sick or infirm person accused of such an offence be      released on bail.           (2) If  it appears to such officer or Court at any      stage of  the investigation,  inquiry or  trial, as the      case may  be, that there are not reasonable grounds for      believing that  the accused  has committed non-bailable      offence, but  that there  are  sufficient  grounds  for      further inquiry  into his  guilt,  the  accused  shall,      pending such  inquiry, be  released on bail, or, at the      discretion of  such officer  or Court, on the execution      by him of a bond without sureties for his appearance as      hereinafter provided.           "(3) An officer or a Court releasing any person on      bail under  sub-section (1)  or sub-section  (2)  shall      record in writing his or its reason for so doing.           "(3A) If, in any case triable by a Magistrate, the      trial of  a person  accused of any non-bailable offence      is not concluded within a period of sixty days from the      first date fixed 742      for taking  evidence in the case, such person shall, if      he is  in custody  during the whole of the said period,      be  released   on  bail  to  the  satisfaction  of  the      Magistrate,  unless  for  reasons  to  be  recorded  in      writing, the Magistrate otherwise directs.      "(4) If, at any time, after the conclusion of the trial      of a  person accused  of  a  non-bailable  offence  and      before judgment  is delivered  the Court  is of opinion      that there  are reasonable  grounds for  believing that      the accused is not guilty of any such offence, it shall      release the  accused, if  he  is  in  custody,  on  the      execution by  him of  a bond  without sureties  for his      appearance to hear judgment delivered.      "(5) A High Court or Court of Sessions and, in the case

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    of a  person released  by itself  any other  Court  may      cause any  person who  has  been  released  under  this      section to be arrested and may commit him to custody."      Magistrates are  specifically labelled as Courts by the statutory provisions  of section  6 and therefore have to be regarded as  such. It is no doubt true that the Code assigns to a  Magistrate various  functions which do not fall within the sphere  of judicial  duties and  are, on the other hand, functions of  an executive  nature such  as the  exercise of supervisory  jurisdiction   in  relation   to  investigation carried out by the police or work done on the administrative side; and  it may  plausibly be argued that in the discharge of such  functions a Magistrate does not act as a Court. But then in  my opinion a Magistrate cannot but be regarded as a Court  when  he  acts  judicially.  This  follows  from  the provisions of  section 6  itself. The  Code does not contain any provision to the effect that no functions performed by a Magistrate  in  relation  to  criminal  proceedings  whether handled by him or dealt with by the police would be regarded as functions  performed by a Court unless they are posterior in point of time to the stage when he acts under section 190 of the  Code. On  the contrary,  sections 496  and 497 which embrace bail  matters  specifically  describe  a  Magistrate while dealing  therewith  as  a  Court  and  these  sections operate fully  at all  stages of  a case including that when the investigation  has just started. There is nothing in the context in  which the  word ‘Court’  is used  in  these  two sections and  section 195  which would provide an indication that it  has been  used in two different senses therein, and in such  a situation  the legislature must be deemed to have used it  in one and the same sense wherever it occurs in the Code. While  deciding the  question of  bail,  therefore,  a Magistrate must be held to be 743 acting  as   a  Court   and  not   in  any  other  capacity, irrespective of  the stage  which the  case has  reached  by then, that  is, whether  it is  still under investigation by the police  or has  progressed to the stage of an inquiry or trial by  the Magistrate. It at once follows that the taking of cognizance  of any  offence by a Magistrate under section 190 of  the Code  is not a condition precedent for him to be regarded as a Court.      6. Nor  do  I  feel  that  the  opinions  expressed  by Halsbury and  Lord Sankey  lay down any different principle. Those opinions appear to me to cover only cases of tribunals which  perform   quasi-judicial  functions   but   are   not statutorily recognised  as ‘Court’.  At page 342 of Volume 9 of Halsbury’s  Laws of  England (third  edition) appears the following passage in Para 809 :           "Originally the  term "court"  meant, among  other      meanings, the  Sovereign’s palace;  it has acquired the      meaning of the place where justice is administered and,      further, has  come to  mean the  persons  who  exercise      judicial  functions   under  authority  derived  either      immediately  or   mediately  from  the  Sovereign.  All      tribunals, however,  are not  courts, in  the sense  in      which the term is here employed, namely, to denote such      tribunals as  exercise  jurisdiction  over  persons  by      reason of  the sanction  of the  law, and not merely by      reason of  voluntary submission  to their jurisdiction.      Thus, arbitrators,  committees of  clubs, and the like,      although they  may  be  tribunals  exercising  judicial      functions, are not "courts" in this sense of that term.      On the  other hand,  a tribunal  may be  a court in the      strict sense of the term although the chief part of its

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    duties is  not judicial.  Parliament is  a  court,  its      duties are  mainly deliberative  and legislative  : the      judicial duties  are only  part  of  its  functions.  A      coroner’s court  is a true court although its essential      function is investigation."      In para 810 the learned author proceeds to lay down the criteria which  determine when  a tribunal would be regarded as a  Court. In  his opinion,  the elements to be considered are :           (1) the  requirement for a public hearing, subject      to a power to exclude the public in a proper case, and           (2) a  provision that  a member  of  the  tribunal      shall not  take part  in any  decision in  which he  is      personally interested,  or unless  he has  been present      throughout the proceedings. 744      The  learned   author   then   quotes   Lord   Sankey’s observations in  Shell Co.  of  Australia  Ltd.  v.  Federal Commissioner of Taxation and then gives numerous examples of tribunals which  are not  regarded  as  Courts.  One  common feature of  such tribunals is that they are not described as Courts by  statute and  are charged  with the performance of administrative or  executive functions as distinguished from judicial functions.      Paragraph 812 on page 344 of the same Volume deals with the subject of creation of Courts and lays down :           "Courts  are  created  by  the  authority  of  the      Sovereign as the fountain of justice. This authority is      exercised either  by statute,  charter, letters patent,      or Order  in Council. In some cases, a court is held by      prescription, as  having existed  from time immemorial,      with the  implication that  there was  at some  time  a      grant of  the Court  by the  Sovereign, which  has been      lost.           "An Act  of Parliament  is necessary  to create  a      court which  does not  proceed according  to the common      law."      Reference may usefully be made to Section 6 of the same Chapter in which the above paragraphs occur. That Section is headed "Magistrates’ Courts". The relevant part of paragraph 1041 with  which the  Section begins  is  to  the  following effect:           "A magistrate’s  court consists  of a  justice  or      justices of  the peace acting under any enactment or by      virtue of  his or  their commission or under common law      (otherwise than  as a  court or  committee  of  quarter      sessions or  a purely administrative tribunal), or of a      stipendiary magistrate."      The combined  effect of  the various paragraphs forming part of the treatise and noticed above would be that a Court may be  created by  a statute  and that  when such  a  Court performs judicial  functions, it  will be deemed to act as a Court and  further, that Magistrates’ Courts are regarded as such   unless   performing   executive   or   administrative functions. That  is how  the position  stands in England and there is  nothing in  the case of Shell Company of Australia Ltd. v.  Federal Commissioner of Taxation (supra) which runs to the  contrary. It  may be  noted that  in that  case  the question for  decision was as to whether the Board of Review which had  been constituted  under the Australian Income Tax Assessment Act  to review  the decisions of the Commissioner of Taxation  was or  was not  a Court  and it  was  in  that context that Lord Sankey expressed his opinion. Obviously he was 745

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not dealing  with the functions of a tribunal which had been statutorily labelled as a Court.      7. What I have said of Lord Sankey’s opinion is true of the decisions  of this  Court in Virinder Kumar Satyawadi v. The State  of Punjab  and Smt.  Ujjam Bai  v. State of Uttar Pradesh. In  the former  the question for decision was as to whether a  returning officer discharging functions under the Representation of  the People  Act, 1951  was a Court and in answering the  same the  Court referred to the case of Shell Company  of   Australia  (supra)   and  other   English  and Australian authorities and then observed :           "It is  unnecessary to  traverse the  same  ground      once again. It may be stated broadly that 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. And it also imports an      obligation on  the part  of the authority to decide the      matter on  a consideration  of the evidence adduced and      in accordance  with  law.  When  a  question  therefore      arises as  to whether an authority created by an Act is      a  Court   as  distinguished   from  a   quasi-judicial      tribunal, what  has to  be decided  is  whether  having      regard to  the provisions  of the  Act it possesses all      the attributes of a Court."      In Ujjam  Bai’s case (supra) this Court was resolving a question  as   to  whether  an  officer  of  the  income-tax department was  a Court and replied in the negative, broadly for the  reason that even though taxing authorities follow a pattern of action which is considered judicial, they are not converted into  Courts of  civil judicature  and that  their actions are executive in nature.      Neither of these cases deals with an authority on which the status  of a Court is conferred by statute, nor with one forming part of the judiciary, such as a Magistrate in whose case the  opinion of  this  Court  would  surely  have  been different as  is apparent from the judgment of Hidayatullah, J., in  Ujjam Bai’s  case (supra) which quotes the following passage from Gullapalli Nageswara v. State of Andhra Pradesh 746           "The concept  of a quasi-judicial act implies that      the act  is not  wholly judicial,  it describes  only a      duty cast on the executive body or authority to conform      to norms  of judicial procedure in performing some acts      in exercise of its executive power." and then proceeds :           "The taxing  departments are  instrumentalities of      the State.  They are not a part of the Legislature; nor      are they  a part  of the judiciary. Their functions are      the assessment  and collection  of taxes,  and  in  the      process of  assessing  taxes  they  have  to  follow  a      pattern of  action, which  is considered judicial. They      are  not   thereby  converted   into  Courts  of  civil      judicature. They  still remain the instrumentalities of      the State  and are  within the definition of ‘State’ in      Art. 12. In this view of the matter, their actions must      be regarded,  in the ultimate analysis, as executive in      nature, since their determinations result in the demand      of tax  which neither the legislature nor the judiciary      can collect.  Thus, the actions of these quasi-judicial      bodies may be open to challenge on the ground of breach      of fundamental rights."

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    It is  thus clear that the source of power exercised by the authority,  that is, whether it is an executive power or judicial  power   would  make  all  the  difference  in  the determination of  the question  as to  whether the authority acts as  a Court  or merely as a quasi-judicial tribunal not functioning as  a Court.  In this connection a reference may also be  made to section 19 of the Indian Penal Code coupled with  illustration  (b)  appended  thereto  and  section  20 thereof : Section 19 :           "The word  "Judge" denotes  not only  every person      who is officially designated as a Judge, but also every      person.           "Who is  empowered by  law to  give, in  any legal      proceeding, civil  or criminal,  a definitive judgment,      or a  judgment which, if not appealed against, would be      definitive, or  a judgment  which if  confirmed by some      other authority, would be definitive, or           "who is  one of  a body  of persons, which body of      persons is empowered by law to give such a judgment." 747 Illustration (b) :           "A Magistrate  exercising jurisdiction  in respect      of a  charge on  which he has power to sentence to fine      or imprisonment, with or without appeal, is a Judge." Section 20 :           "The words  "Court of  Justice" denote a Judge who      is empowered  by law to act judicially alone, or a body      of Judges  which is  empowered by law to act judicially      as a  body, when such Judge or body of Judges is acting      judicially."      Although we  are not  here  concerned  with  the  terms "Judge" and  "Court  of  Justice"  properly  so-called,  the provisions above  extracted do give a definite indication of the attributes of a Court as used in criminal law generally. It may  be noted that the Code and the Indian Penal Code are the main  statutes operating  in India  in relation  to  the dispensation of  criminal justice  and may  in  a  sense  be regarded as  supplementary to  each other,  the Code forming the procedural  link of  the same  chain of which the Indian Penal Code  constitutes the  link of  substantive law.  This relation between  the two enactments is further strengthened by the  provisions contained in sub-section (2) of section 4 (the definition clause) of the Code which runs thus :           "4 (2)  : Words  which refer  to acts done, extend      also to illegal omissions; and           "all words and expressions used herein and defined      in the  Indian Penal Code, and not hereinabove defined,      shall be  deemed  to  have  the  meanings  respectively      attributed to them by the Code."      It is  no doubt  true that  the  expression  "Court  of Justice" does  not appear  to have  been used  in  the  Code (although the  expression  "Judge"  does  find  a  place  in section 197  thereof), but  then there is no escape from the conclusion that  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.      8. Now  I proceed  to examine  the relevant  provisions contained in  Chapter XIV  of the  Code  which  carries  the caption "INFORMATION  TO THE  POLICE  AND  THEIR  POWERS  TO INVESTIGATE". It  may be  stated at  once that  although the Chapter is  headed as  stated, it is not confined to matters which are  strictly concerned  with the  investigation stage but  also  deals  with  situations  which  arise  after  the investigation has  been finalized.  Reference may be made in

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this behalf  to subsection  (2) of  section 172  of the Code reads thus : 748           "Any Criminal  Court  may  send  for  the  police-      diaries of a case under inquiry or trial in such Court,      and may  use such diaries, not as evidence in the case,      but to  aid it  in such  inquiry or  trial. Neither the      accused nor  his agents  shall be  entitled to call for      such diaries,  nor shall  he or they be entitled to see      them merely  because they are referred to by the Court,      but, if  they are  used by  the police-officer who made      them, to  refresh his memory, or if the Court uses them      for the  purpose of  contradicting such police-officer,      the  provisions  of  the  Indian  Evidence  Act,  1872,      section 161  or section  145, as the case may be, shall      apply."      The sub-section  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 undoubtedly as a  Court. The  caption of  the Chapter  therefore is  not decisive  of   the  question  as  to  whether  a  particular provision contained  therein 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.      The contents  of sections  169, 170 and 173 of the Code may now be scrutinised. They are re-produced below :           "169.  If,   upon  an   investigation  under  this      Chapter, it  appears to  the officer  in charge  of the      police-station or  to  the  police-officer  making  the      investigation that  there is not sufficient evidence or      reasonable  ground   of  suspicion   to   justify   the      forwarding of the accused to a Magistrate, such officer      shall, if such person is in custody, release him on his      executing a  bond, with  or without  sureties, as  such      officer may direct, to appear, if and when so required,      before a Magistrate empowered to take cognizance of the      offence on  a police-report  and to  try the accused or      commit him for trial."           "170. (1)  If, upon  an investigation  under  this      Chapter, it  appears to  the officer  in charge  of the      police-station that  there is  sufficient  evidence  or      reasonable ground  as  aforesaid,  such  officer  shall      forward the  accused  under  custody  to  a  Magistrate      empowered to  take cognizance  of the  offence  upon  a      police-report and  to try the accused or commit him for      trial or, if the offence is bailable and the accused is      able to give security, shall take security from him for      his appearance  before such  Magistrate on  a day fixed      and for  his attendance  from day  to day  before  such      Magistrate until otherwise directed." 749           "(2) When  the officer  in  charge  of  a  police-      station forwards  an accused  person to a Magistrate or      take security for his appearance before such Magistrate      under this  section, he  shall send  to such Magistrate      any weapon  or other article, which it may be necessary      to  produce   before  him,   and  shall   require   the      complainant (if  any) and  so many  of the  persons who      appear to  such  officer  to  be  acquainted  with  the      circumstances of the case as he may think necessary, to      execute a  bond to  appear  before  the  Magistrate  as      thereby directed and prosecute or give evidence (as the      case may  be) in  the matter  of the charge against the      accused.

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         "(3) If  the Court  of the  District Magistrate or      Sub-divisional Magistrate  is mentioned  in  the  bond,      such Court  shall be held to include any Court to which      such Magistrate  may refer  the  case  for  inquiry  or      trial, provided  reasonable notice of such reference is      given to such complainant or persons."           "173. (1) : Every investigation under this Chapter      shall be  completed without  unnecessary delay, and, as      soon as  it is  completed, the officer in charge of the      police-station shall-           "(a) forward  to a  Magistrate empowered  to  take      cognizance of  the offence on a police-report a report,      in the form prescribed by the State Government, setting      forth the  names of  the parties,  the  nature  of  the      information and  the names of the persons who appear to      be acquainted  with the  circumstances of the case, and      stating whether  the accused  (if  arrested)  has  been      forwarded in  custody, or has been released on his bond      and, if so, whether with or without sureties, and           "(b)  communicate,   in  such  manner  as  may  be      prescribed by the State Government, the action taken by      him to  the person,  if any,  by whom  the  information      relating to  the commission  of the  offence was  first      given.           "(2) Where  a superior  officer of police has been      appointed under  section 158,  the report shall, in any      case in  which  the  State  Government  by  general  or      special order  so directs,  be submitted  through  that      officer,  and   he  may,  pending  the  orders  of  the      Magistrate, direct the officer in charge of the police-      station to make further investigation.           "(3) Whenever  it appears  from a report forwarded      under this  section that  the accused has been released      on his bond, 750      the Magistrate  shall make such order for the discharge      of such bond or otherwise as he thinks fit.           "(4) After  forwarding a report under this section      the officer  in charge  of  the  police-station  shall,      before  the  commencement  of  the  inquiry  or  trial,      furnish or  cause to  be furnished to the accused, free      of cost,  a copy  of the  report forwarded  under  sub-      section  (1)   and  of  the  first  information  report      recorded under  section 154  and all other documents or      relevant extracts  thereof, on  which  the  prosecution      proposes  to   rely,  including   the  statements   and      confessions, if  any recorded under section 164 and the      statements recorded  under sub-section  (3) of  section      161 of all the persons whom the prosecution proposes to      examine as its witnesses.           "(5) Notwithstanding  anything contained  in  sub-      section (4),  if the  police-officer is of opinion that      any part  of any  statement recorded  under sub-section      (3) of  section 161  is not  relevant to  the  subject-      matter of  the inquiry  or trial or that its disclosure      to the  accused is  not essential  in the  interests of      justice and  is inexpedient in the public interests, he      shall exclude  such part from the copy of the statement      furnished to  the accused  and in such a case, he shall      make a report to the Magistrate stating his reasons for      excluding such part :           "Provided, that at the commencement of the inquiry      or trial, the Magistrate shall, after perusing the part      so excluded  and considering  the report of the police-      officer, pass such orders as he thinks fit and if he so

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    directs, a copy of the part so excluded or such portion      thereof, as he thinks proper, shall be furnished to the      accused."      Section 169  and 170  do not  talk of the submission of any report by the police to the Magistrate, although they do state what  the police  has to  do short  of such submission when it  finds at  the conclusion  of the  investigation (1) that there  is not  sufficient evidence or reasonable ground of suspicion  to justify  the forwarding of the accused to a Magistrate  (section  169)  (2)  that  there  is  sufficient evidence or reasonable ground as aforesaid (section 170). In either case  the  final  report  of  the  police  is  to  be submitted to the Magistrate under sub-section (1) of section 173. Sub-section  (3) of  that section further provides that in the  case of  a report by the police that the accused has been released  on his bond (which is the situation envisaged by section 169), the 751 Magistrate shall  make "such order for the discharge of such bond or  otherwise as  he thinks  fit".  Now  what  are  the courses open  to the Magistrate in such a situation? He may, as held  by this  Court in Abhinandan Jha & Others v. Dinesh Mishra.           (1)  agree with  the report of the police and file                the proceedings, or           (2)  not agree  with the  police  report  and  (a)                order further investigation, or (b) hold that                the evidence  is sufficient  to  justify  the                forwarding of  the accused  to the Magistrate                and take cognizance of the offence complained                of.      The appropriate  course has  to be decided upon after a consideration of  the report and the application of the mind of the  Magistrate to  the contents  thereof. But  then  the problem to  be solved  is whether  the order  passed by  the Magistrate pertains  to his  executive or judicial capacity. In my  opinion, the  only order  which can  be  regarded  as having been  passed by the Magistrate in his capacity as the supervisory  authority  in  relation  to  the  investigation carried out by the police is the one covered by the course 2 (a). The order passed by the Magistrate in each of the other two courses,  that is, (1) and 2(b), follows a conclusion of the investigation  and is  a judicial  order determining the rights of  the parties  (the State  on the  one hand and the accused on the other) after the application of his mind. And if that  be so,  the order  passed by  the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court.      9. The  reasons which have weighed with me in coming to the conclusion  arrived at in the last paragraph are equally applicable to  the consideration  of the question whether an order  of   bail  passed  by  a  Magistrate  calls  for  the performance by  him of his judicial functions. Such an order also decides  the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in  the discharge  of his  judicial duties,  which factor constitutes it an act of a Court.      10. For  a tribunal  to be acting as a Court, it is not necessary that  the parties  must have a right of hearing or adducing evidence  at every  stage of the proceedings before it. This  is specially true of Courts constituted as such by the legislature. Reference may here be made to interlocutory orders issuing temporary injunctions or staying 752 proceedings in  a subordinate  Court or  dispossession of  a

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party by  Civil Courts  at the  instance of  a plaintiff  or appellant and  in the  absence of  the opposite  party which comes into  the picture  later on  after it is served with a notice. And  even subsequent  to the appearance of the party adversely affected,  the existence  of a  prima  facie  case would till  the scales  against it so that the order earlier passed in  favour of  the other  party is confirmed till the conclusion of  the case  on merits, even though the case may finally be  decided otherwise  and the  interlocutory  order found to  be unjust  and then vacated. And yet it can hardly be argued  that the  presiding officer of the Court does not act as a Court when passing such an order. Really, the right to adduce  evidence  and  be  heard  is  to  be  taken  into consideration  as  being  available  at  one  stage  of  the proceedings or  the other.  Thus in  the case  of  an  order passed by  a Magistrate under sub-section (3) of section 173 of the  Code in  agreement with  the police  report does not call for  any hearing  or the  production of any evidence on the part  of the  accused, as  it goes in his favour. If the Magistrate, on  the other  hand, disagrees  with the  report submitted by the police and takes cognizance of the offence, the accused comes into the picture and thereafter shall have the right  to be  heard and to adduce evidence in support of his innocence.  Viewed in this context, all orders passed by a Magistrate  acting judicially  (such as orders of bail and those passed under subsection (3) of section 173 of the Code discharging an  accused or  orders taking  cognizance of the 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  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.      11. In  the view  that I have taken of the matter, I do not consider  it necessary  to go  into the  details of  the conflict of  opinion amongst  the High  Courts in  India  in relation there to but I would touch briefly thereupon. In J. D. Boywalla  v. Sorab  Rustomji  Engineer  Beaumont,  C.  J. speaking for himself and Macklin, J., emphatically held that a Magistrate  while passing  a order  releasing  an  accused person on  bail or  discharging him in pursuance of a report submitted by  the police to the effect that the evidence was insufficient to  sustain the  charge,  acts  judicially  and therefore as a Court within the meaning of that term as used in clause (b) of sub-section (1) of section 195 of the Code. That decision was followed by a Division Bench consis- 753 ting of  Shah, C. J., and Baxi, J., in State v. Vipra Khimji Gangaram in so far as an order discharging an accused person as aforesaid  is concerned. Beaumont, C. J.’s view in regard to orders  of bail  was accepted  as correct by M. C. Desai, C.J., and Mishra, J., in Badri v. State.      These three  decisions, in  my opinion,  lay  down  the correct law  on the  point and  the view  expressed  to  the country by the Madras, Calcutta and Patna High Court as also by a  Full Bench  of the  Allahabad High Court in Hanwant v. Emperor and  by a  Full Bench  of the  Lahore High  Court in Emperor v.  Hyat Fateh  Din merits rejection for the reasons stated above.      12. In  so far  as this  Court is  concerned, the point debated before  us has  not been  the subject  matter of any decision and was expressly left open in M. L. Sethi v. R. P.

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Kapur &  Anr. In that case the appellant had lodged a report with  the  police  charging  the  respondents  with  certain cognizable offences.  While the  police  were  investigating into the  report, the  respondent filed  a complaint  in the Magistrate’s Court alleging that the appellant had committed an offence  under section  211 of  the Indian  Penal Code by falsely charging  the respondent  with having  committed  an offence. The  Magistrate took cognizance of the respondent’s complaint under section 190 of the Code. At that stage there were no  proceedings in  any Court  nor  any  order  by  any Magistrate for  arrest, remand  or bail of the respondent in connection with the appellant’s report to the police. Later, however, the  police arrested  the respondent  in connection with the appellant’s report and filed a charge sheet against him,  but   the  case   ended  in  an  order  of  discharge. Thereafter, the  appellant raised  an objection in the Court of the  Magistrate to  the effect  that  cognizance  of  the offence under section 211 of the Indian Penal Code could not be taken  in view  of the  provisions of  clause (b) of sub- section (1)  of section  195 of  the  Code.  The  Magistrate rejected the  contention and  the order was confirmed by the Sessions Court  and the  High Court.  While  dismissing  the appeal, this  Court held  that the  complaint filed  by  the respondent was  competent and  that clause (b) aforesaid did not stand in the way of the Magistrate taking cognizance, in as much  as, there  had been  no  proceedings  of  any  kind whatsoever before  the Magistrate  in relation to the report lodged by  the appellant  with the police till the complaint was 754 filed by  the respondent.  Reliance was  placed on behalf of the appellant in that case on Badri vs. State (supra) and J. D. Boywalla  v. Sorab  Rustomji  Engineer  (supra)  but  the points decided  in those cases were held not to arise in the case  then   before  the  Court  which  made  the  following observations in relation thereto :           "In the  case of Badri vs. State, where an offence      under section  211, I.P.C.,  was alleged  to have  been      committed by  the person  making a false report against      the complainant  and others  to the police, it was held      that it  was an  offence  in  relation  to  the  remand      proceedings  and   the  bail   proceedings  which  were      subsequently taken  before a  Magistrate in  connection      with that  report to  the police,  and, therefore,  the      case was  governed by  section 195  (1) (b), Cr. P. C.,      and no  cognizance of the offence could be taken except      on a  complaint by  the Magistrate  who held the remand      and bail  proceedings. We  do not consider it necessary      to express  any opinion  whether the  remand  and  bail      proceedings before  Magistrate  could  be  held  to  be      proceedings in  a  Court,  nor  need  we  consider  the      question whether  the charge  of making  of  the  false      report could be rightly held to be in relation to those      proceedings. That  aspect need  not detain us, because,      in the  case before  us, the  facts are  different. The      complaint for the offence under section 211, I.P.C. was      taken cognizance  of  by  the  Judicial  Magistrate  at      Chandigarh  at   a  stage   when  there   had  been  no      proceedings  for   arrest,  remand   or  bail   of  the      respondent and the case was still entirely in the hands      of the  police. There  was, in  fact, no  order by  any      Magistrate in the proceedings being taken by the police      on the  report lodged  by the appellant up to the stage      when the question of applying the provisions of section      195 (1)(b),  Cr. P.C.  arose. These two cases are also,

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    therefore, of  no assistance  to the  appellant. On the      same ground,  the decision of the Bombay High Court, in      J. D.  Boywalla vs.  Sorab Rustomhi  Engineer  is  also      inapplicable, because  in that  case also  orders  were      passed by  a Magistrate on the final report made by the      police after  investigation of  the facts in the report      in respect  of which  the complaint  under section 211,      I.P.C. was sought to be filed."           13. In another part of the judgment deciding M. L. Sethi v.  R. P.  Kapur (supra) this Court disagreed with the view expressed in Ghulam 755 Rasul v.  Emperor wherein  Blacker, J.,  made the  following observation :           "I am clear that the words in this sub-section "in      relation to  any proceedings in any Court" apply to the      case of  a false  report or  a false  statement made an      investigation by  the police  with the  intention  that      there shall  in consequence  of this  be a trial in the      criminal Court, and I find support for this view in the      case reported as 1929 Sind 132 (1)".      This view  of Blacker,  J., was  repelled by this Court thus :           "The decision  in the  words in  which the learned      Judge expressed himself appears to support the argument      of learned  counsel for  the appellant  in the  present      case but  we think  that very  likely in that case, the      learned Judge  was influenced by the circumstances that      the case  had  been  reported  by  the  police  to  the      Magistrate for  cancellation. He  appears to  have held      the view  that the Magistrate having passed an order of      cancellation,  it  was  necessary  that  the  complaint      should be  filed by the Magistrate, because section 195      (1) (b)  had become  applicable. If  the learned  Judge      intended to say that without any proceeding being taken      by the Magistrate in the case which was investigated by      the police,  it was  still essential  that a  complaint      should be  filed by  the Magistrate  simply  because  a      subsequent    proceeding     following    the    police      investigation was  contemplated, we  consider that  his      decision cannot be accepted as correct."      These observations  cannot be  held to  mean that if an order of  cancellation of a case has actually been passed by a Magistrate  in agreement  with the report of the police to the effect that no sufficient evidence was available against the accused,  such order could not be regarded as a judicial proceeding and  the Magistrate passing it could not be given the status  of a  Court. This  is  apparent  from  the  last sentence of the passage just above extracted which indicates that all  that was  meant was  that if Blacker, J., meant to say that  even though no proceeding at all had been taken by the Magistrate, clause (b) of sub-section (1) of section 195 of the  Code would  be attracted  merely for the reason that the police  had held an investigation which would at a later point  of   time  result   in  any  proceedings  before  the Magistrate this Court could not agree with him. Another fact which may  be noted  in this  connection is that judgment in Ghulam  Rasul   vs.  Emperor   (supra)  does  not  state  in unmistakable terms that any order 756 of cancellation  of the  case was  passed by  the  concerned Magistrate and  all that is mentioned is that the police had reported the  case for  "cancellation", which  may well mean that really  no order  of cancellation had in fact been made by the Magistrate.

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    14. As  the order releasing Trivedi on bail and the one ultimately discharging  him of  the  offence  complained  of amount to proceedings before a Court, all that remains to be seen is  whether the offence under section 211 of the Indian Penal Code  which is  the subject  matter of  the  complaint against Trivedi  can be  said to  have  been  committed  "in relation to"  those proceedings.  Both the  orders  resulted directly from  the information  lodged by  Trivedi with  the police against  Pathak and  in this  situation there  is  no getting out  of the conclusion that the said offence must be regarded as  one committed in relation to those proceedings. This  requirement  of  clause  (b)  aforementioned  is  also therefore fully satisfied.      15. For  the reasons  stated, I hold that the complaint against Trivedi  is in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking  cognizance of  it the SDJM acted in contravention of the bar contained in the said clause (b), as there was no complaint in  writing either  of the  SDJM or  of a superior Court. In  the result,  therefore, I  accept the appeal and, setting aside  the  order  of  the  High  Court,  quash  the proceedings taken by the SDJM against Trivedi.                            ORDER      In accordance  with the  opinion of  the majority,  the appeal is  allowed, the order of the High Court is set aside and the  proceedings taken  by the  Sub-Divisional  Judicial Magistrate against  the appellant,  Kamlapati  Trivedi,  are quashed. N.V.K.                                       Appeal allowed. 757