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PETITIONER: M. L. SETHI

       Vs.

RESPONDENT: R. P. KAPUR & ANR.

DATE OF JUDGMENT: 23/09/1966

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. DAYAL, RAGHUBAR

CITATION:  1967 AIR  528            1967 SCR  (1) 520  CITATOR INFO :  F          1969 SC 355  (7)  F          1971 SC1708  (12)  D          1979 SC 777  (15,18,20,36,37)  R          1981 SC  22  (13)

ACT: Code  of Criminal Procedure (Act 5 of 1898),  s.  195(1)(b)- Complaint  to  Magistrate of offence under  s.  211,  Indian Penal Code-Cognizance, when barred.

HEADNOTE: The  appellant lodged a report with the police charging  the respondent with certain cognizable offences on 10th December 1958.  While the police were investigating into the  ’report the respondent filed a complaint in the Magistrate Is Court, on 11th April 1959 alleging that the appellant had committed an  offence  under  s. 211, Indian Penal  Code,  by  falsely charging  the respondent with having committed  an  offence. The Magistrate took cognizance of the respondent’s complaint under s. 190 Criminal Procedure 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 appellants report to the police.  Later, on  18th  July 1959 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  applied  to   the Magistrate’s  court  praying  that the court  may  not  take cognizance  of  the  complaint to the  court  filed  by  the respondent  against  the  appellant,  on  the  ground  that, cognizance  of an offence under s. 211 I.P.C. could  not  be taken  in view of the provisions contained in  s.  195(1)(b) Cr.P.C. The magistrate rejected the contention and the order was confirmed by The session court and the high Court. In appeal to this Court, HELD:  The complaint filed by the respondent  was  competent and the Magistrate was not barred from taking cognizance  of it  by  the provisions of s. 195 ( 1) (b) Cr.P.C.;  and,  in taking  cognizance  of  it he  only  exercised  jurisdiction rightly vested in him. [542 A-B] (i)  When  a Magistrate is taking cognizance  under  s.  190

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Cr.P.C.  he must examine the facts of the  complaint  before him  and  determine whether his power of  taking  cognizance under  the section has or has not been taken away  under  S. 195(1)  Cr.P.C.  , In the case of an offence  under  s.  211 I.P.C., s. 195(1)(b), Cr.P.C., provides that no court  shall take  cognizance of it 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. That is, s. 195(1)(b ) Cr.P.C. bars taking cognizance if all the  following  circumstances exist, namely,  (i)  that  the offence in respect of which the case is brought falls  under s.  211 I.P.C. (ii) that there -should be a proceeding in  a court,  and  (iii) that the allegation should  be  that  the offence under s. 211 I.P.C. was committed in, or in relation to  such a proceeding.  When examining the question  whether there  is any proceeding in any court, three situations  can be envisaged:(a) There may be no proceeding in any court at all;  (b)  a.proceeding in a court may actually  be  pending when  cognizance  is  taken of the  offence  under  S-.  211 I.P.C., and (c) though there may be no proceeding pending in a court, there may have been a proceeding which had  already concluded and the offence under s. 211 may 521 be  alleged  to have been committed in, or in  relation  to, that  proceeding.  In cases (b) and (c), the bar  to  taking cognizance  under  s.  195(1) (b) Cr.P.C.  would  come  into operation.  In case (a), when there is no proceeding pending in any court at all at the time when the applicability of S. 195(1) (b), Cr.P.C. has to be determined, nor has there been any  earlier proceeding which may have been concluded..  the sub-,section  would  not  apply, and in  such  a  case,  the Magistrate  would  be competent to take  cognizance  of  the offence under s. 211 I.P.C., if his jurisdiction is  invoked in  the  manner laid down in s. 190  of  Criminal  Procedure Code. [526 F-G; 527 B, G-H, 528 E-F; 529 C-E, G-H] Caselaw considered. (ii)There  is nothing in the language of the sub-section  to indicate that theLegislature also intended to lay down  this bar if a proceeding in   court was still under contemplation and if and when the proceeding is taken it may be found that the  offence  alleged to have been committed was,  in  fact, committed in or in relation to, that proceeding.  The Magis- trate  could not be expected to come to a  decision  whether any  such proceeding in any court was  under  contemplation, and   any  interpretation  of  law  which  will   make   its applicability dependent on a future decision to be taken  by some  person and thus introduce an element  of  uncertainty, should be avoided. [530 B-F] (iii)At  the  stage  when the complaint  was  filed  by  the respondent  against the appellant the police were  inquiring into  the appellant’s report.  In such a case, there may  be no  justification for the police to bring a charge of  false information  being  given  to them  until  investigation  is ,completed.  Similarly, a Magistrate has-no jurisdiction  to order  a prosecution for making a false complaint, till  the complaint  was  dismissed.   But  there  is  no  requirement anywhere in law that the person affected by the false charge could  not file his complaint in court until the police  had decided that the charge is false. [534 F-H; 535 A-B] Queen  v. Subanna Goundan, (1862-63) 1 M.H.C.R. 30 and  Gati Mandal v. Emperor, 27 Cr.  L.J. 1105, referred to. (iv)  The  mere  fact that, on a report being  made  to  the police  of a cognizable offence, the proceeding must,  at  a latter  stage., end in a judicial order by  the  Magistrate,

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cannot, stand in the way of a private complaint being  filed and  of  cognizance being taken by the court on  its  basis. The  scheme of the provisions relating to  investigation  in the   Criminal  Procedure  Code,  requires  that  upon   the completion  of investigation, the investigating officer  has to  submit  a report to the Magistrate under  s.173  Cr.P.C. furnishing various details and stating whether it appears to him  there  is or is not sufficient evidence  or  reasonable ground  for placthe accused on trial.  At that  stage  there may  be  an intervention by ire Magistrate in  his  judicial capacity.   But until some occasion arises for a  Magistrate to  make  a judicial order in connection with  the  investi. gation  of a cognizable offence by the police,  no  question can  arise  of the Magistrate having the power of  filing  a complaint under s. 195(1)(b) Cr.P.C. [540 DI.  G-H; 541 B-C] (v)  It is not correct to say that s. 195 Cr.P.C. lays  down that the offence& therein referred to shall not be deemed to be  any  offences  at all, except on the  complaint  of  the persons  or  the courts therein specified.   An  offence  is constituted  as  soon as it is found that  the  facts  which constitute  the  offence have been committed by  the  person -accused  of the offence, and it remains an offence  whether it is triable by a court or not. [535 G-H] Observations contra in Fakir Mohamed v. Emperor, A.I.R. 1927 Sind 10 overruled. 522 (vi)  It was not necessary that the proceeding taken by  the police  should terminate before the court could  competently take  cognizance  of the complaint filed by  the  respondent against the appellant. [537 H] (vii) In the case of s. 195(1)(b) there is a limitation that private  prosecutions  are  barred  only  if  the   offences mentioned  in  that sub-section were alleged  to  have  been committed in, or in relation to any proceeding in any court. If  the offence was not committed,, in, or in  relation  to, any  proceeding  in  any  court,  a  private  complaint   is permissible. [537 D-E] Ramaswami  Iyengar v. Panduranga Mudaliar, A.I.R. 1938  Mad. 173, referred to. (viii)  It  is true that if a private person is  allowed  to file  a complaint that the report to the police against  him is  false before investigation is corn leted, and the  court takes  cognizance of it, there may be two trials, in one  of which person accused of an offence may be under trial, while in  the other, the person who complained to the  police  may appear as a person accused of an offence under s. 211 I.P.C. But, there is no difficulty in dealing with such a  possible anomalous  situation, by trying both cases together  or  one after the other. [541 C-F]

JUDGMENT: CRIMNAL APPELLATE JURISDICTION : Criminal Appeal No. 110  of 1965. Appeal from the judgment and order dated January 13, 1965 of the High Court at Allahabad in Criminal Revision No. 1318 of 1964. Frank  Anthony, M. L. Sethi, J. C. Talwar and R.  L.  Kohli, for the appellant. R. P. Kapur, respondent No. 1, in person. O.P. Rana, for respondent No. 2. The Judgment of the Court was delivered by Bhargava, J. This appeal filed under certificate granted  by the  High  Court at Allahabad is directed against  an  order

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passed  by that Court dismissing a revision  application  by which the appellant, M. L. Sethi, desired the vacation of an order  passed by the Sessions Judge of Saharanpur  upholding two orders of the Additional District Magistrate (Judicial), Saharanpur,  dated 6th August, 1963 and 5th  October,  1963. By  these orders, the Magistrate dismissed two  applications presented  by  the  appellant  for  dismissing  a  complaint pending before him for commission of offences under sections 21  1,  204  and 385 of the Indian Penal  Code.   A  further prayer  was  made  for an order by this  Court  qushing  the proceedings pending in the Court of that Magistrate. The  facts necessary for deciding this appeal may be  stated briefly. on December 10, 1958, the appellant lodged a report with  the  Inspector-General of Police,  Chandigarh  against R.P. Kapur (hereinafter referred to as "the respondent") and his mother-in-law charging them with commission of  offences punishable under sections 420, 109, 114 and 120-B, I.P.C. It does not appear to be necessary 523 to give the details of the allegations made in that  report. The charge in that First Information Report was based on the allegation  that  the respondent and his  mother-in-law,  by conspiring together, cheated the appellant and his wife of a sum  of Rs. 20,000/- by persuading the appellant to  take  a sale-deed of some land on certain false representations  and on suppression of facts indicating that on the date when the sale-deed by the respondent’s mother-in-law was executed  in favour of the wife of the appellant, the title of the former had already been extinguished, as the land had been acquired by  the  Government  under the Land  Acquisition  Act.   The offence   was  registered  as  a  cognizable   offence   and investigation was started. On  April 11, 1959, the respondent filed a complaint in  the Court  of  Judicial  Magistrate,’  1st  Class,   Chandigarh, against  the  appellant  for commission  of  offences  under sections  204,  211 and 385 I.P.C. In  this  complaint,  the respondent alleged that the land was sold by his  mother-in- law to the appellant’s wife as a favour to the appellant and that at that time, no misrepresentations at all were made in respect of any facts. The complaint added that the appellant was  fully  aware of the land acquisition  proceedings;  but because  of  fixation  of low rate of  compensation  in  the acquisition  proceedings,the  appellant suffered a  loss  of nearly  Rs. 13,000/-. The appellant,being a clever  criminal lawyer,   went  to  the  respondent’s  mother-in-law,   Smt. Kaushaliya  Devi, and demanded the sum of  Rs.  13,000/-,and when  she refused, he threatened her with dire  consequences of   criminal  proceedings against her and  her  son-in-law, the respondent.A similar threat of criminal proceedings  was also later given to the respondent himself by the appellant; and thereafter, the First Information Report was lodged with the Inspector-General of Police by the appellant on December 10,  1958. The charge in the complaint further was that  the allegations  made  in the First Information  Report  by  the appellant  were false to his knowledge and were contradicted by   the  appellant’s  own  letters,  writings   and   other correspondence.It  was also stated that the false report  to the  police  was made with the knowledge  and  intention  of putting  the respondent in fear of ,injury to his fair  name and  reputation  in service and otherwise and of  being  put under arrest and harassment in a criminal trial and  thereby to   induce  him  to  deliver to the appellant Rs.  13,000/- and  submit to other terms that the appellant may choose  to impose.  The  last  allegation was that  the  appellant  was guilty  of the offence under s. 204, I.P.C.,  for  secreting

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five  documents which were enumerated in the complaint,  and this offence was alleged to have been committed, because  if these documents had been presented in time, the Police would not have entertained the complaint which led to a  harassing investigation against the respondent. This   complaint  filed  by  the  respondent   against   the appellant,as  well  as  the proceedings  instituted  by  the Police on the basis of the 524 First  Information Report were transferred under the  orders of  this  Court  to the Court  of  the  Additional  District Magistrate, Saharanpur.  The case against the respondent and his  mother-in-law  based on the  First  Information  Report ended  in an order of discharge passed by the High Court  of Allahabad  on  December  10, 1962, when  the  charge  framed against  the respondent and his mother-in-law by the  trying Magistrate was quashed.  On the record, the material availa- ble  relating to the proceedings based on the  F.I.R.  dated December  10, 1958, is that it was on July 18, 1959 for  the first  time that the respondent was arrested  in  connection with that report and the challan by the Police for trial  of the respondent was presented to the Court on July 25,  1959. There is no material to show that between December 10’ 1958, when  the First Information Report was lodged, and July  18, 1959 when the respondent was arrested in connection with it, there was, at any stage, any order passed by any  Magistrate in connection with the investigation that was going on. As  we  have  mentioned earlier, the  revisions  before  the Sessions Judge, and the High Court, arose out of two  orders made  by  the Additional District Magistrate  on  August  6, 1963,  and October 5, 1963.  The first order was made on  an application  presented  by the appellant on May 6,  1963  in which  he  contended that no offence was  disclosed  on  the allegations  made in the complaint and on the  statement  of the  complainant recorded by the Magistrate  at  Chandigarh, and,  further,  that, in any case, the trial was  barred  on account  of want of requisite previous sanction as  provided in  S. 195 of the Code of Criminal Procedure.  It  was  also alleged that the facts were so inter-mixed that the trial of any  other offence separate from the offence under  S.  211, I.P.C.,  was  not  permissible  or  possible,  so  that  the Magistrate  was requested not to proceed with the trial  and to  withdraw the order summoning the appellant; and  in  the alternative,  the  prayer  was that  the  appellant  may  be discharged  under S. 253, Cr.  P.C., as the  charge  against him was groundless. The second order of the Magistrate dated 5th October,  1963, was passed on the application of the appellant dated  August 12, 1963, in which it was prayed that the Court may not take cognizance  ,of the complaint as instituted, and  the  trial under  S.  252, Cr.  P.C. may not proceed.  The  prayer  was again  based  on the ground that cognizance of  the  offence under  S.  21 1, I.P.C. could not be taken in  view  of  the provisions of S. 195(1)(a) & (b), Cr.  P.C., under which the ,Court  was empowered to proceed in respect of that  offence only when there was a complaint, in writing by the authority concerned.   The Additional District Magistrate by  his  two orders,  rejected  the contention that s.  195,  Cr.   P.C., barred  this  particular  complaint  which  had  been  filed against the appellant.  The main ground for these orders was that  no  proceedings  were pending in any  Court  when  the complaint against the appellant was filed in the Court of 525 the Magistrate at Chandigarh for the offences under sections 204,  21  1, and 385, I.P.C. and consequently, s.  195,  Cr.

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P.C.,  was  inapplicable.   That is the view  of  the  Addl. District  Magistrate  which  has been  upheld  both  by  the Sessions  Judge  and the High Court; and  consequently,  the appellant has now come up to this Court in this appeal. On behalf of the appellant, the first submission made by his counsel, Mr. Frank Anthony, Was that the making of a  report of a cognizable offence with the police is both  institution of  a criminal proceeding as well as charging a person  with having committed an offence, so that, in this case, when the appellant  lodged his First Information Report  on  December 10,  1958, with the InspectorGeneral of Police, it  must  be held  that he had instituted a criminal  proceeding  against the  respondent, as well as he had charged him  with  having committed  the offences mentioned in that report within  the meaning  of s. 21 1, I.P.C. In support of this  proposition, learned  counsel  relied  on a Full Bench  decision  of  the Calcutta High Court in Karim Buksh v. The  Queen-Empress(1), and a Full Bench decision of the Kerala High Court in Albert v.  State  of Kerala and Another.(2) It was urged  that,  on this  interpretation, when the respondent filed a  complaint against  the appellant under s. 21 1, I.P.C., together  with other offences, the provisions of s. 195, Cr.  P.C.,  became attracted.  It appears to us that in this case it is not  at all  necessary to go into the question whether,  whenever  a complaint of a cognizaable offence is filed, it must be held that  the  complainant  is  instituting  or  causing  to  be instituted a criminal proceeding, or is merely charging  the person  named  in  the  report  with  having  committed  the offences  mentioned therein, because, during the  course  of argument  in  the appeal before us, no  contention  was  put forward  that no offence under s. 211, I.P.C., was made  out and  that  the  complaint  of  the  respondent  against  the appellant  was  wrongly  being treated as in  respect  of  a charge under s. 21 1. Up to the stage of the revision before the  High  Court,  some attempt was made on  behalf  of  the appellant to plead that the facts alleged by the  respondent in his complaint to the Court did not constitute an  offence under  s. 21 1, I.P.C. committed by the appellant;  but,  in this  Court,  Mr. Frank Anthony on behalf of  the  appellant gave up this plea and, in fact, proceeded to urge before  us that  the complaint of the respondent against the  appellant did  specifically  include  in it a charge under  s.  21  1, I.P.C. On behalf of the respondent and the State  Government also there was no suggestion that the complaint against  the appellant  was not in respect of the offence under s. 21  1, I.P.  C. It is consequently unnecessary at this stage to  go into the question whether the facts given in the  complaint, or the facts which may ultimately be found proved after  the trial,  do  or do not constitute an offence under s.  21  1, I.P.C. and if they do, whether those facts show that the (1) I.L.R.17 Cal. 574. (2) A.I.R. 1966 Kerala 11. 526 appellant  had instituted a criminal proceeding against  the respondent or had only charged him with having committed the offences mentioned in his report.  That is a point which may have  to  be decided at the conclusion of the trial  of  the appellant; and consequently, we refrain from going into this question at this stage. The only point that falls for determination by this Court is whether,  in this case, cognizance of the_ complaint,  which included  an  offence under s. 21 1, I.P.C.,  filed  by  the respondent  against  the appellant, was rightly  or  wrongly taken  by the Courts.  The complaint, as we  have  mentioned earlier,  was  filed by the respondent in the Court  of  the

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Judicial Magistrate at Chandigarh on April 11, 1959, and  on the  same day, cognizance of the offence was taken  by  that Magistrate  under  s.  190,  Cr.   P.C.,  where  after  that Magistrate   proceeded  to  record  the  statement  of   the respondent  under s. 200, Cr.  P.C. Before  this  cognizance was  taken,  the  appellant had  already  lodged  his  first Information   Report   against  the  respondent   with   the Inspector-General  of  Police  on  December  10,  1958.   In connection  with  that report, investigation by  the  Police must have been going on, though none of the judgments of the lower Courts mentioned what particular steps had been  taken in that investigation up to the 11th April, 1959, when  this complaint was filed by the respondent against the appellant. The facts found only mentioned that in connection with  that First  Information Report of the appellant,  the  respondent was arrested on July 18, 1959, and subsequently, the charge- sheet  was  submitted  by the Police to  the  Court  of  the Magistrate on July 25, 1959.  This arrest and submission  of the  charge-sheet were both subsequent to the filing of  the complaint  by  the respondent.  In these  circumstances,  we have  to  examine whether the Magistrate at  Chandigarh  was competent to take cognizance of this complaint on April  11, 1959,  in  view of the provisions of s. 195 of the  Code  of Criminal Procedure. In  dealing with this question of law, the important  aspect that  has ,to be kept in view is that the point of  time  at which the legality of the cognizance taken has to be  judged is the time when cognizance is actually taken under S.  190, Cr.  P.C. Under the Code of Criminal Procedure which applies to  trials  of  such cases, the only  provision  for  taking cognizance  is  contained  in s. 190.   Section  195,  which follows  that  section,  is, in fact, a  limitation  on  the unfettered  power of a Magistrate to take  cognizance  under s.190.  Under the latter section cognizance of  any  offence can   be  taken  by  any  Presidency  Magistrate,   District Magistrate  or  Sub-Divisional  Magistrate,  and  any  other Magistrate  specially  empowered  in this  behalf  (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 527 offence  has  been  committed.  In  the  present  case,  the Judicial  Magistrate  at  Chandigarh  had  before  him   the complaint  filed by the respondent, and if s. 190  stood  by itself,  he  was competent to take cognizance  of  it  under clause  (a)  of sub-s. (1) of that section.  This  power  of taking  cognizance was, however, subject to  the  subsequent provisions  contained  in  the Code  of  Criminal  Procedure including  that contained in s. 195.  Sub-s. (1) of s.  195, which is relevant for our purposes, is reproduced below --               "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

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             such  Court  or of some other Court  to  which               such Court is subordinate; or               (c) of any offence described in section 463 or               punishable  under section 471, section 475  or               section  476  of  the  same  Code,  when  such               offence is alleged to have been committed by a               party  to  any  proceeding  in  any  Court  in               respect  of  a document produced or  given  in               evidence  in  such proceeding, except  on  the               complaint in writing of such Court, or of some               other   Court   to   which   such   Court   is               subordinate." This sub-section thus bars any Court from taking  cognizance of  the  offences  mentioned in clauses (a),  (b)  and  (c), except  when the conditions laid down in those  clauses  are satisfied.   In the case of an offence punishable  under  S. 211, I.P.C., the mandatory direction is that no Court  shall take  cognizance  of  any  offence  punishable  under   this section, 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.  This provision in clause  (b)  of  sub-s.  (1) of s. 195  is  thus  clearly  a limitation  on  the power of the Court  to  take  cognizance under  s.  190.   Consequently, it is at the  stage  when  a Magistrate  is taking cognizance under s. 190 that  he  must examine the facts of the complaint before him and  determine whether  his power of taking cognizance under s. 190 has  or has not been taken away by cl. (b) of sub-s. (1) of s.  195, Cr.  P.C. In 528 the present case, therefore, at the time when this complaint was  filed ’by the respondent in the Court of  the  Judicial Magistrate at Chandigarh, it was necessary and incumbent  on that  Magistrate  to  examine whether his  power  of  taking cognizance  of the offence was limited by the provisions  of s.  195  (1)(b).  He had, therefore,  to  determine  whether cognizance  of  this complaint charging the  appellant  with commission of an offence under s. 211, I.P.C., could not  be taken by him, because that offence was alleged to have  been committed  in,  or  in relation to, any  proceeding  in  any Court,  and if he found that it was so, whether a  complaint in  writing by such Court or some other Court to which  such Court  was  subordinate was necessary before he  could  take cognizance.   Consequently,  in deciding this  appeal,  this Court has to examine whether on the date when cognizance was taken   by  the  Judicial  Magistrate  at  Chandigarh   such cognizance was barred under s. 195(1)(b), Cr. P.C.,  because the offence punishable under s. 211, I.P.C., included in the complaint  was  alleged  to have been committed  in,  or  in relation to, any proceeding in any Court.     In  the interpretation of this cl. (b) of sub-s. (1)  of s. 195, considerable emphasis has been laid before us on the expression  "in, or in relation to", and it has  been  urged that  the  use  of  the expression  "in  relation  to"  very considerably widens the scope of this -section and makes  it applicable  to  cases where there can even in  future  be  a proceeding  in  any Court in relation to which  the  offence under s. 211, I.P.C., may be alleged to have been committed. A proper interpretation of this provision requires that each ingredient in it be separately examined. This provision bars taking  of  cognizance if all  the  following  circumstances exist,  viz., (1) that the offence in respect of  which  the case  is brought falls under s. 211 I.P.C.; (2)  that  there should  be  a  proceeding in any Court; and  .(3)  that  the

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allegation  should  be  that the offence under  s.  211  was committed in, or in relation to, such a proceeding.   Unless all the three ingredients exist, the bar under s.  195(1)(b) against  taking  cognizance by the Magistrate, except  on  a complaint  in  writing  of  a  Court,  will  not  come  into operation.  In the present case also, therefore, we have  to see whether all these three ingredients were in existence at the   time  when  the  Judicial  Magistrate  at   Chandigarh proceeded  to  take cognizance of the charge under  s.  211, I.P.C., against the appellant.     There  is,  of course, no doubt that  in  the  complaint before the Magistrate a charge under s..211, I.P.C., against the  appellant  was included, so that the  first  ingredient clearly  existed. The question on which the decision in  the present  case  hinges  is whether it can be  held  that  any proceeding  in any Court existed when that  Magistrate  took cognizance.  If any proceeding in any Court existed and  the offence under s. 211, I.P.C., in the complaint filed  before him was alleged to have been committed in such a proceeding, or in 529 relation  to any such proceeding, the Magistrate would  have been  barred from taking cognizance of the offence.  On  the other  hand, if there was no proceeding in any Court at  all in which, or in relation to which, the offence under s.  211 could  have  been  alleged  to  have  been  committed,  this provision barring cognizance would not be attracted at all. In this case, as we have already indicated when  enumerating the  facts, the complaint of which cognizance was  taken  by the  Judicial Magistrate at Chandigarh was filed on April  1 1,  1959,  and at that stage, the only proceeding  that  was going on was investigation by the Police on the basis of the First Information Report lodged by the appellant before  the Inspector-General of Police on December 10, 1958.  There  is no  mention  at  all  that there was,  at  that  stage,  any proceeding in any Court in respect of that F.I.R. When  exa- mining  the question whether there is any proceeding in  any Court,  there  are three situations that can  be  envisaged. One is that there ,may be no proceeding in any Court at all. The  second is that a proceeding in a Court may actually  be pending at the point of time when cognizance is sought to be taken of the offence under s. 211, I.P.C. The third is that, though  there may be no proceeding pending in any  Court  in which,  or in relation to which, the offence under  s.  211, I.P.C.,  could  have been committed, there may have  been  a proceeding which had already concluded and the offence under s.  211  may  be alleged to have been committed  in,  or  in relation  to, that proceeding.  It seems to us that in  both the  latter  two circumstances envisaged above, the  bar  to taking  cognizance  under  s.  195(1)(b)  would  come   into operation.  If there be a proceeding actually pending in any Court  and the offence under s. 21 1, I.P.C., is alleged  to have been committed in, or in relation to, that  proceeding, s. 195(1)(b) would, clearly apply.  Even if there be a  case where  there  was, at one stage, a proceeding in  any  Court which  may  have  concluded  by the  time  the  question  of applying  the  provisions of s. 195(1)(b)  arises,  the  bar under  that provision would apply if it is alleged that  the offence  under  s.  211, I.P.C., was  committed  in,  or  in relation to, that proceeding.  The fact that\ the proceeding had concluded would be immaterial, because s. 195(1)(b) does not  require that the proceeding in any Court must  actually be  pending at the time when the question of  applying  this bar arises. In the first circumstance envisaged above, when there is no

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proceeding pending in any court at all at the time when  the applicability  of  S. 195(1)(b) has to  be  determined,  nor earlier  proceeding which may have been of this  sub-section would  not be attracted, has there been any  concluded,  the provisions  because  the language used in it  requires  that there must be a proceeding in some Court in, or in  relation to,  which the offence under s. 21 1, I.P.C. is  alleged  to have been committed.  In such a case, a Magistrate would  be competent  to  take cognizance of the offence under  s.  211 I.P.C., if his 530 jurisdiction is invoked in the manner laid down in s. 190 of the Code of Criminal Procedure. Mr. Frank Anthony on behalf of the appellant urged before us that  even  in  those cases where there may  be  no  pending proceeding  in  any  Court, nor  any  proceeding  which  has already  concluded  in any Court, the bar  of  s.  195(1)(b) should  be  held  to be applicable if it  is  found  that  a subsequent  proceeding in any Court is under  contemplation. We  do not think that the language of cl. (b) of sub-s.  (1) of s. 195 can justify any such interpretation.  A proceeding in  contemplation  cannot be said to be a  proceeding  in  a Court.   When  there  is mere contemplation  of  starting  a proceeding  in  future,  there  is  no  certainty  that  the proceeding  will  come into existence.  It  will  always  be dependent  on the decision to be taken by the person who  is contemplating  that  the  proceeding  be  started;  and  any interpretation of the law, which will make the applicability dependent  on  a  future decision to  be  taken  by  another person,  would, in our opinion, be totally  incorrect.   The applicability  of  this provision at the sweet will  of  the person  contemplating  the  proceeding  will  introduce   an element of uncertainty in the applicability of the law;  and such an interpretation must be avoided.  In this case, apart from this circumstance, the language used clearly lends  it- self  to the interpretation that the bar has been placed  by the  Legislature  only in those cases where the  offence  is alleged  to have been committed in, or in relation  to,  any proceeding actually pending in any Court, or any  proceeding which has already been taken in any Court.  There is nothing in  the  language  to indicate  that  the  Legislature  also intended to lay down this bar if a proceeding in a Court was still under contemplation and if and when that proceeding is taken, it may be found that the offence alleged to have been committed  was,  in fact, committed in, or in  relation  to, that  proceeding.  In this connection, the question of  time when   the  applicability  of  this  provision  has  to   be determined,  assumes importance.  It appears to us  that  at the time when in the present case the Judicial Magistrate at Chandigarh  had to determine the applicability of this  bar, he  could not be expected to come to a decision whether  any proceeding  in any Court was under contemplation in,  or  in relation  to,  which the offence under s. 21 1,  I.P.C.,  of which  he was asked to take cognizance, was alleged to  have been  committed.   In  fact,  it  would  be  laying  on  the Magistrate  a  burden  which he could  not  be  expected  to discharge  properly  and judicially as no  Magistrate  could determine in advance of a proceeding in a Court whether  the offence  under s. 21 1, I.P.C., of which he is  required  to take  cognizance,  will be an offence which  will  be  found subsequently  to  have  been committed in  relation  to  the contemplated  proceeding  to  be  taken  thereafter.    This interpretation,  sought  to be placed on this  provision  on behalf of the appellant, cannot, therefore, be accepted. 531

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In  this connection, reliance was placed by learned  counsel for  the appellant on a series of cases decided  by  various High  Courts.  In Re Vasudeo Ramchandra Joshi(1),  the  High Court  of  Bombay quashed proceedings for prosecution  of  a lawyer  who  had  instigated some witnesses  to  give  false evidence.   It  appears  that a  pleader  was  defending  an accused  person in a proceeding pending before a  Magistrate against  his  client in respect of a charge  under  s.  401, I.P.C. On April 1, 1922, an application made by the  pleader on  behalf of the accused for bail was refused.   Then,  the statements  of three witnesses were recorded under  s.  164, Cr.   P.C., on April 18, 1922, and from these statements  it appeared that on April 10, these witnesses had an  interview with  the  pleader  who had instigated them  to  give  false evidence.   On April 15, another case against the  pleader’s client  in  respect of a dacoity was sent up  to  the  Magis trate,  and the allegation against the pleader was  that  it was  in connection with this case of dacoity which was  sent up  to  the  Magistrate on April 15, that  the  pleader  had instigated the witnesses to give false evidence.  On June 2, the  witnesses were actually examined before the  Magistrate in this dacoity case which was sent up on April 15; and then on  June  7,  a complaint was filed by  the  Police  Officer against  the  pleader charging him with having  abetted  the giving  of  false evidence.  It was in  these  circumstances that  the High Court held that the provisions of  s.  195(1) (b),  Cr.   P.C., were applicable and the case  against  the pleader  on the charge filed by the Police Officer  was  not maintainable  when there was no sanction by  the  Magistrate who was enquiring into the dacoity case in relation to which the  witnesses were instigated to give false  evidence.   On the  facts,  it is clear that that case  is  distinguishable from  the case before us.  In that case, the charge  by  the Police  Officer  was  filed on June 7, and on  that  date  a proceeding  was  already pending before  the  Magistrate  in relation to which the witnesses had been instigated to  give false evidence.  The provisions of s. 195(1)(b) were, there- fore, clearly applicable.  Dealing with this matter, one  of the  learned Judges of the High Court held that  "the  words are  very  general, and are wide enough, in my  opinion,  to cover a proceeding in contemplation before a Criminal Court, though  it may not have begun at the date when  the  offence was committed.  If that is so, it is plain that sanction was necessary   in  the  present  case,  and,   therefore,   the proceedings  which  have been undertaken are  nun  and  void without such sanction.". These views expressed by Crump, J., had  been relied upon by learned counsel in support  of  his proposition that even if an offence is committed in relation to a proceeding which is in contemplation, the provisions of s.  195(1) (b), Cr.  P.C., are attracted.  We do  not  think that any such general proposition can be inferred from  that decision.  It is to be noted that in that case though it was held  that the offence of instigation of witnesses  to  give false evidence was committed when proceedings (1)  Al.R. 1923 Bom. 105. 532 before  a criminal Court were still under  contemplation  in which the witnesses were to appear, the actual complaint f9r that instigation was filed after the Magistrate was  already seized  of  the  proceeding  in  which  the  witnesses  were instigated to give false evidence.  On the date on which the complaint  was  filed  by the Police  Officer  charging  the pleader with instigation of giving false evidence, there was already a pending proceeding before the Court in relation to which  that offence had been committed.   Consequently,  the

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observations  in that case should be interpreted as  limited to  laying  down that the provisions of  s.  195(1)(b),  Cr. P.C.,  will  be attracted even if the  offence  charged  was committed  while  the proceeding was in  contemplation,  and that  there was no decision by the Court that  the  sanction under  s. 195(1)(b) would be necessary even in  those  cases where  the proceeding is still  under contemplation  on  the date  when  the  complaint is filed  before  the  Court  for commission  of  the  offence  mentioned  in  s. 195(1)(b).     In Ghulam Rasul v. Emperor(1) the Police investigated  a report  that a certain person had stolen  the  complainant’s watch  from  his car, and in the investigation,  the  Police came  to the conclusion that the report was false  and  that the watch had been removed by the complainant himself.   The case   was  accordingly  reported  to  the  Magistrate   for cancellation; and then the Police prosecuted the complainant under  ss.  193 and 211, I.P.C.  The learned  Judge  of  the Lahore High Court in dealing with the case held: "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 statement made in an investigation by  the police with the intention that there shaH, in consequence of this,  be a trial in the Criminal Court, and I find  support for  this  view  in  the case of  Chuhar  Mal-Nihal  Mal  v. Emperor(2)." 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 circumstance 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  s. 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. 1)  A.I.R.  1936 Lah. 238.                  (2)  A.I.R  1929 Sind 132. 533 In  Balak  Ram and Others v. Emperor(), it was held  that  a person who sets the criminal law in motion by making a false charge  to the police of a cognizable offence by  definitely charging  a  person with having come to his  house  for  the purpose   of  dacoity,  and  insisting  for   investigation, institutes  criminal  proceedings within the meaning  of  s. 211,  and  that  criminal  proceedings  are  just  as   much instituted   within  the  meaning  of  s.  211  when   first information  of a cognizable offence is given to the  Police under s. 154, Cr.  P.C., as when a complaint is made  direct to a Magistrate under s. 200, Cr. P.C. We do not think  that these  comments  made  in that case can  be  interpreted  as laying down that criminal proceedings instituted by  lodging a  First Information Report of a cognizable offence  to  the Police  amount to institution of a criminal proceeding in  a Court.   What the Court in that case was deciding  was  that there  can  be criminal proceedings apart  from  proceedings instituted  by a complaint in Court for purposes of s.  211, I.P.C. That decision does not in any way attempt to lay down that  a  proceeding in investigation is a  proceeding  in  a Court.

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In  Ramdeo v. The State and Another(2), the  question  arose about the applicability of s. 195 to a complaint made for an offence under s. 182, I.P.C., by a Police Officer for giving false information to him in a report lodged by an informant. In that connection, the Court considered the scope of s. 195 and held that an offence under s. 211, I.P.C., in connection with  a  false charge made before the Police is  an  offence committed in relation to proceedings in a Court contemplated at the time of lodging information with the Police.  But  in that  case again the complaint by the Police was held to  be incompetent  only on the further basis that the  proceedings under contemplation at the time when the offence under s. 21 1,  I.P.C.,  was  committed  by  lodging  the  report,  were actually  instituted later.  This institution of  that  case took  place before the Police lodged the complaint  for  the offence  under  s. 182, I.P.C. Thus, this was again  a  case where  a proceeding was actually pending in a Court  at  the time when cognizance of the offence under s. 182 was  taken, and it was held that the charge under s. 182 was covered  by a  charge under s. 21 1, I.P.C. and that the latter  offence had  been committed in relation to the proceeding which  had come  into  existence  in the Court at the  time  of  taking cognizance. In Har Prasad v. Hans Ram and Others(3), a private complaint was  filed  before  a Magistrate  disclosing  commission  of offences under ss. 467 and 471, I.P.C., at a time when there were  no proceedings pending in any Court.   These  offences were committed for the purpose of using the forged documents in  the  Court  of  the  Tahsildar  who  was  to  deal  with subsequent mutation proceedings (1)   A.I.R. 1942 Oudh 100.   (2) A.I.R. 1962 Raj. 149. (3)  A.I.R. 1966 All. 124. 534 and  they  were, in fact, so used subsequently.  It  was  in these  circumstances that the Court held that the words  "in respect of" in S. 195(1)(c) were wide enough to include even a document which was prepared before the proceedings started in  a Court of law but was produced or given in evidence  in that  proceeding.  It was further held that in this view  of the matter, although the document was fabricated before  the proceedings started in Tahsildar’s Court and although two of the  opposite  parties were not impleaded  in  the  mutation proceedings,  it  must be held that the  cognizance  of  the offence was barred by s. 195(1)(c).  Once again, it will  be noticed  that  all that the Court disregarded was  the  fact that  the  substantive  offence  mentioned  in  S.  195  was committed  for a proceeding which was  under  contemplation, but  the  proceedings in Court for that  offence  were  held barred  by S. 195 only because subsequently, proceedings  in the  Court  of  the Tahsildar were actually  taken  and  the documents  concerned were used in it and were found to  have been  forged in relation to those proceedings.  On the  date on  which  the  cognizance was  taken,  the  proceeding,  in relation  to  which  the offence  had  been  committed,  was already pending. In The Queen v. Subbanna Gaundan and Others(), it was  found that some persons were convicted under s. 21 1, I.P.C.,  for falsely  charging the complainant with having committed  the offence  of highway robbery, knowing that there was no  just or  lawful  ground  for such charge.  The  charge  had  been preferred before an Inspector of Police, who disbelieved and refused to act upon it.  It was held that to constitute  the offence  of preferring a false charge contemplated in S.  21 1,  I.P.C., it was not necessary that the charge  should  be before a Magistrate.  In that connection, the Court  further

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held that it is enough in a case like that one if it appears that the charge was still not pending and that an indictment for   falsely  charging  could  not  be  sustained  if   the accusation were entertained and still remained under  proper legal  enquiry.  Reliance is placed on the last dictum  that an indictment for falsely charging, as in the present  case, cannot  be  sustained  while the  accusation  made  in  that alleged  false charge is still under proper  legal  enquiry. In  the  present case, there is no doubt that at  the  stage when  the complaint was filed by the respondent against  the appellant  for  the  offences under ss. 204,  211  and  385, I.P.C.,  enquiry on the First Information Report  lodged  by the  appellant was still being conducted by the Police.   In such  a case, there may be no justification for  the  Police bringing  a  charge of false information being given  to  it until  the investigation is completed.  But we do  not  find any requirement anywhere in law that the person affected  by the false charge could not file his complaint in Court until the  Police  had  decided that the charge  was  false.   The discretion  of the person affected by the false  charge  was not  to  be fettered or tied down to the view taken  by  the Police. (1) (1862 & 1863) I Madras High Court Reports, 30. 535 The  case  of Gati Mandal v. The, Emperor() is again  of  no help, because in that case also the only principle that  was laid down was that a Magistrate had no jurisdiction to order a  prosecution  for  making  a  false  complaint,  till  the complaint  was dismissed.  That case does not relate to  the right  of  a private person to file a complaint at  a  stage when  no  case is pending in any Court against  him  and  no question of intervention of any Court under s. 195, Cr.P.C., arises. In Fakir Mohamed v. Emperor(2), it was held that if there is no complaint by a public servant as required by S. 195,  the defect   cannot  be  said  to  be  an  error,  omission   or irregularity in a complaint, because the complaint was never made.   Before  an  error, omission  or  irregularity  in  a complaint  can  be  cured, the  complaint  must  exist,  and consequently,  the  provisions of s. 537, Cr.   P.C.  cannot apply.   In  such a case, the trial without a  complaint  as required by s. 195 would be void.  These comments brought to our  notice  do  not  have any  particular  bearing  on  the question  that we are called upon to examine.  In  the  same case,   the   Additional  Judicial  Commissioner   of   Sind interpreted  the effect of s. 195, Cr.  P.C. He was  of  the view  that "section 195, though it forms a part of the  Code of  Procedure, in reality contains a provision of  the  sub- stantive  law of crimes.  For s. 195 does not deal with  the competency  of  the Courts, nor lays down which  of  several Courts shall, in any particular matter, have jurisdiction to try the case; and yet the language of s. 195 is apt to these matters,  and it forms part of the Chapter entitled ’of  the jurisdiction  of  the  Criminal  Courts  in  enquiries   and trials’.  Section 195 in reality lays down that the offences therein  referred to (or rather the acts constituting  those offences)  shall  not be deemed to be any offences  at  all, except on the complaint of the persons or the Courts therein specified; it enhances the connotation of those offences and limits  the scope of their definition.  This  limitation  of the  definition  is brought about by saying  that  no  Court shall take cognizance of the offences unless this condition, requisite for initiation of proceedings, is satisfied". Relying  on  these  observations, learned  counsel  for  the appellant urged before us that in this case also, we  should

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hold that no offence under s. 211 could come into  existence and  no charge for that commission could be brought  against the appellant, unless there was a complaint by a Court under S.  195,  Cr.   P.C. We are unable to agree  with  the  view expressed  by the learned Additional  Judicial  Commissioner that  S. 195, Cr.  P.C., really lays down that the  offences therein  referred to shall not be deemed to be any  offences at all, except on the complaint of the persons or the Courts therein specified.  An offence is constituted as soon as  it is  found that the acts which constitute that  offence  have been  committed  by the person accused of the  offence.   It remains an offence whether it is triable by a Court or  not. If a law prescribes punishment for that offence, (1) 27 Cr.  L.J. 1105. upSC.I./66-6 A.I.R. 1927 Sind 10 536 the fact that the trial of that offence can only be taken up by courts. after certain specified conditions are  fulfilled does  not  make that offence any the less an  offence.   The limitation  laid down by s. 195, Cr.  P.C., is, in  fact,  a limitation  only on the power of Courts to  take  cognizance of,  and  try,  offences and does not in any  way  have  the effect  of converting an act, which was an offence, into  an innocent  act.  We cannot, therefore, subscribe to the  view expressed  in that case.  There is the further  circumstance that  in the case before us we have held that the  provision contained  in  s. 195(1)(b) was not applicable at  the  time when  the Judicial Magistrate at Chandigarh took  cognizance of  the offence, and consequently, this principle sought  to be laid down by the Additional Judicial Commissioner of Sind has no application. In  Gunamony  Sapui v. Queen Empress(), the  High  Court  of Calcutta  dealt  with a case in which a complaint  had  been lodged  by  one Syambar, accompanied by  Gunamony,  charging certain persons with murder and other offences.  The Police, after  investigation, made a report to the effect  that  the information   was  false,  and  thereupon,  the   Magistrate directed  proceedings  to  be  taken  against  Syambar   and Gunamony  to show cause why they should not  be  prosecuted. Syambar,  who had made the report, then appeared before  the Magistrate,  and repeating the information contained in  his report  to  the Police he asked for an  enquiry,  which  was ordered by the Magistrate.  Once again, a report was made by the  police  that the complaint was false.   Thereupon,  the Magistrate,  without  putting and end to that  complaint  of Syambar by dismissing it under s. 203, or passing any  other order as he might think fit, instituted proceedings  against Gunamony  under  s. 21 1, I.P.C. On these  facts,  the  High Court  held  that the proceedings against Gunamony  must  be quashed, because there was no final order by the  Magistrate on  the complaint of Symabar dismissing his  complaint,  and that  complaint was still pending.  On the analogy  to  this case,  it  was urged by learned counsel that  in  this  case also,  the  proceedings  against  the  appellant  should  be quashed on the ground that, at the stage when the respondent filed  his complaint against the appellant, the  proceedings being taken by Police on the report of the appellant had not come  to an end.  We do not think that the two cases can  be compared.   In that case, the proceedings were in Court  and the  Court  filed a complaint for bringing false  charge  or institution of false criminal proceedings without putting an end to those proceedings.  In the case before us, there were no proceedings before any Court on the, basis of the  report lodged  by  the appellant at the time  when  the  respondent

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filed  his complaint.  It was not at all necessary that  the proceedings  being  taken  by the  Police  should  terminate before  the Court could competently take cognizance of  this complaint filed by the respondent against the appellant. (1) (1898-99) 3 C.W.N. 758. 537 In  K.Ramaswami Iyengar v. K. V. Panduranga  Mudaliar(1),  a learned  Judge  of the Madras High Court, dealing  with  the principle  underlying s. 195, Cr.  P.C. held: "where an  act amounts  to the offence of contempt of the lawful  authority of  public servants (ss. 172-188, I.P.C.), or to an  offence against  public  justice such as giving false  evidence  (s. 193,  et  seq.,  I.P.C.),  or  to  an  offence  relating  to documents  actually used in a Court (s. 471  etc.),  private prosecutions  are barred absolutely, and only the Court,  in relation  to which the offence was committed,  may  initiate proceedings.   This  salutary  rule of  law  is  founded  on commonsense.  The dignity and prestige of courts of law must be upheld by their presiding officers, and it would never do to  leave  it  to  parties  aggrieved  to  achieve  in   one prosecution   gratification   of   personal   revenge    and vindication of a Court’s honour and prestige.  To allow this would  be  to sacrifice deliberately the  dispassionate  and impartial calm of tribunals and to allow a Court’s  prestige to  be  the sport of personal passions." We  are  unable  to interpret these views expressed by the Madras High Court  as implying   that  private  prosecutions  for   the   offences mentioned in clauses (b) & (c) of sub-s. (1) of s. 195,  Cr. P.C., are barred absolutely and tinder no circumstances  can such  offences be brought before courts by private  persons. In  the case of cl. (b), there is the clear limitation  that private   prosecutions  are  barred  only  if  the   offence mentioned in that section was alleged to have been committed in, or in relation to, any proceeding in any Court.  If  the offence  was  not  committed  in, or  in  relation  to,  any proceeding  in  any Court, a private  complaint  is  clearly permissible.   The  question of upholding  the  dignity  and prestige  of  courts  of law only  arises  after  there  are proceedings in the Courts and not at the stage when no  such proceedings have been instituted or have come into existence in  any  Court.   In  the  present  case,  we  have  already indicated that the cognizance of the complaint filed by  the respondent  against the appellant was taken at a stage  when there   was  no  proceeding  in  any  Court  of   law,   and consequently,  at that stage, there could be no question  of dignity  or prestige of a court of law being upheld or of  a private complaint being barred. In Emperor v. Hardwar Pal (2), the complaint in question was held to clearly constitute an offence under s. 182,  I.P.C., but  the High Court accepted the view held in earlier  cases that the facts in the complaint also constituted an  offence under  the first part of s. 21 1, I.P.C. The High Court  was called  upon  to,  decide  whether  in  those  circumstances cognizance  of the complaint for the offence under  s.  182, I.P.C.,  on  the complaint of the Police  Officer  concerned could  be competently taken when the case related  to  false information report made to the police on the basis of  which a  case was sent up to Court and was tried by a  Magistrate. The  Court  held that the complaint under  s.  182,  I.P.C., could not be proceeded with, (1) A.I.R. 1938 Mad. 173. (2) I.L.R. 34 All. 522. 538 because,  on  the  basis of the alleged  false  report,  the Police  made an inquiry and sent up some accused for  trial,

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and  the offence, which had been committed under  the  first paragraph of s. 211 by falsely implicating an accused in the report,  was  one committed in relation to a  proceeding  in court.    It  was  held  to  be  obvious  that   there   was considerable  relation  between  the first  report  and  the proceeding  in Court, for the latter was the result  of  the former.   The  report  led to the  police  inquiry  and  the inquiry  to  the  proceeding in  court.   Consequently,  the offence  committed  was one under s. 211 in  relation  to  a proceeding in court and sanction of the Court was necessary. This  case,  again, does not, therefore, indicate  that  any view was taken contrary to our opinion expressed above. Two  other  cases brought to our notice are A.  T.  Krishna- machari  v.  Emperor,(1)  and Badri v. State  (2).   In  the former case a statement was recorded under s. 164, Cr.  P.C. by a Magistrate in relation to a case which was subsequently tried  on that matter.  Even though the Court,  which  tried the  case, had not recorded the statement under s.  164,  it was  held  that  it  was competent for  that  Court,  on  an application  under s. 476, to make a complaint  against  the person  in  respect of a statement made by  him  to  another Magistrate  under  s. 164, Cr.  P.C. This was again  a  case where  the statement under s. 164, Cr.  P.C., was  found  to relate to a proceeding that subsequently came into existence in a Court, and the question of filing the complaint for the offence  of  making  that  false  statement  or  of   taking cognizance in respect of that offence only arose after  that proceeding in Court had already come into existence. In the case of Badri v. State(2), where an offence under  s. 21  1,  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 proceeding 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 s. 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  the 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 s. 21  1,  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. (1) A.I.R. (1933) Mad.767. (2) I.L.R. [1963] 2 All. 359. 539 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 s. 195 (1)(b), Cr.  P.C.,  arose. These two cases are also, therefore, of no assistance to the appellant.   On the same ground, the decision of the  Bombay High  Court in J. D. Boywalla v. Sorab Rustomji  Engineer(1) 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 s. 21 1,  I.P.C.,  was sought to be filed.

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In  support  of his proposition that no  criminal  complaint under  s. 21 1, I.P.C., can be filed by a private person  if the  First  Information Report is  under  investigation  and relates  to a cognizable offence, Mr. Anthony urged that  we should examine the scheme of the Code of Criminal  Procedure relating  to  investigation contained in ss. 154 to  173  of that Code and should hold that this scheme itself  envisages that,  invariably,  the proceedings  of  investigation  will terminate  in  a judicial order by a Magistrate,  and  while such  proceedings are pending, it should not be  permissible for  a  private person to file the complaint on  the  ground that the report under investigation was a false one.  It  is perfectly correct that when a report of a cognizable offence is  made, a duty is cast on the Police Officer in charge  of the  station to investigate that case, and in certain  cases of serious offences, immediate report has to be sent to  the Magistrate who has power to take cognizance of the offences. There  is,  however, nothing in these sections  to  indicate that  the  Magistrate  is  required  to  intervene  in   the investigation  until the investigation is completed and  the investigating   officer  arrives  at  some   conclusion   in accordance  with s. 169 or s. 170, Cr.  P.C. After  arriving at  this conclusion under either of those two  sections,  he has  to submit a report to the Magistrate empowered to  take cognizance  of the offence under s. 173.  If his  conclusion is  covered  by  the provisions of s. 170,  Cr.   P.C.,  the report   submitted   by  the  investigating   officer   will necessarily  show  that a cognizable offence has  been  com- mitted and such a report will satisfy the requirements of s. 190(1)(b),   Cr.  P.C.  On  that  report,   therefore,   the Magistrate  concerned can take cognizance and  proceed  with the trial of the case.  On the other hand, if the report  is based  on  conclusions envisaged in s. 169, Cr.   P.C.,  the report  will contain facts found by the Police Officer,  and would  normally indicate that no such offence was  committed of which he could recommend a trial by the Magistrate.  Even on  the  receipt  of such a report, the  Magistrate  is,  of course,  competent to take cognizance under s. 190(1)(b)  if he is of the opinion that the facts stated in the report  of the  Police  constitute an offence.  On the other  hand,  if those  facts do not constitute an offence, no cognizance  of the case can be taken by the Magistrate, though he can order further (1) A.I.R. (1941) Bom. 294. 540 investigation.   If  he  does not choose  to  order  further investigation, all that the Magistrate has to do is to  make an order under sub-s. (3) of s. 173, Cr.  P.C.,  discharging the  bond if the accused has been released by the Police  on his bond. This  scheme of investigation and its termination  contained in these sections of the Code of Criminal Procedure came  up for  consideration in several cases.  In Appa  Ragho  Bhogle and  Others v. Emperor(1) it was held that a case which  was investigated  by the police under authority of a  Magistrate under  s. 155, Cr.  P. C., could not be disposed of  without the order of the Magistrate in some form or another after  a report  was  submitted  to him.  In State  v.  Vipra  Khimji Gangaram(2), it was held that where information relating  to the  commission  of  a cognizable offence  is  given  to  an officer in charge of a Police Station under s. 154 Cr. P. C. , and is followed by investigation by him, he is bound under s.  173(1)  to  forward his final  report  to  a  Magistrate empowered  to  take cognizance of the offence  on  a  police report.  This Court also in H. N. Rishbud and Inder Singh v.

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The  State  of  Delhi(3),  examined  the  scheme  of   these provisions  of the Code of Criminal Procedure and held  that upon  the  completion of  investigation,  the  investigating officer  has to submit a report to the Magistrate  under  s. 173,  Cr. P. C., in the prescribed form, furnishing  various details,  whether  it  appears  to  him  that  there  is  no sufficient  evidence  or reasonable ground,  or  whether  he finds that there is sufficient evidence or reasonable ground to  place the accused on trial.  Similar  observations  were made  by  the  Bombay  High Court in  State  and  Others  v. Murlidhar  Govardhan and Others(4).  In two of these  cases, viz.,  .State v. Vipra Khimji Gangaram(2), and State &  Ors. v.  Murlidhar  Govardhan & Ors.(4) the Courts  further  held that  when a Magistrate passes an order on  the  proceedings under  s.  173, Cr.  P. C., that order is a  judicial  order made  by  him.  For purposes of considering  the  effect  of these  cases  in  the  case before us,  it  is  not  at  all necessary  to express any opinion on the correctness of  the view that the order passed under s. 173, Cr.  P. C., by  the Magistrate is a judicial order when he either discharges the bond under sub-s. (3) of s. 173 or takes cognizance under s. 190 (1) (b), Cr.  P.C. Even if it be accepted that the final orders to be made by the Magistrate are judicial orders, the only  conclusion that follows is that at the last stage,  on receipt  of the report under s. 173, the Magistrate  has  to act in his judicial capacity.  Until that stage is  reached, there  is no intervention by the Magistrate in his  judicial capacity  or as a Court.  Consequently, until some  occasion arises  for  a  Magistrate  to  make  a  judicial  order  in connection with an investigation of a cognizable offence  by the  police, no question can arise of the Magistrate  having the power of filing a complaint under s. 195(1)(b), (1)   16 Cr.  L. J. 161. (3)   [1955] I. S.C.R. 1150. (2)  A.I.R. (1952) Sau. 67. (4)  A.I.R. (1960) Bom. 240. 541 Cr.  P.  C.  In such circumstances,  if  a  private  person, aggrieved  by the information given to the police,  files  a complaint for commission of an offence under s. 21 1, 1.  P. C., at any stage before a judicial order has been made by  a Magistrate,  there can be no question, on the date on  which cognizance  of that complaint is taken by the Court, of  the provisions  of  s. 195(1) (b) being attracted,  because,  on that  date,  there would be no proceeding in  any  Court  in existence in relation to which the offence under s. 21 1, 1. P.  C., can be said to have been committed.  The  mere  fact that  on a report being made to the police of  a  cognizable offence, the proceedings must, at some later stage, end in a judicial order by a Magistrate, cannot, therefore, stand  in the way of a private complaint being filed and of cognizance being taken by the Court on its basis. The last submission made on behalf of the appellant was that a  very anomalous position can arise if a private person  is allowed  to file a complaint that the report to  the  police against him is false before investigation is completed.   It was  urged  that there can be cases where a  report  may  be lodged against a person for commission of a serious  offence like murder, and while investigation is still going on,  the accused may file a complaint against the person, who  lodged the  report,  under s. 21 1, 1. P. C., for  making  a  false report.   Subsequently,  when  the  police  prosecute   that accused,  there would, simultaneously, be two trials in  one of  which  the person accused of the murder would  be  under trial,  while in the other case the person, who  lodged  the

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First  Information Report, would appear as the accused.   It was  suggested  that  a person accused of  a  serious  crime should not be given the advantage of putting his complainant in  jeopardy  by  instituting a case  against  him  for  the offence  under s. 21 1, 1. P. C. We are unable to hold  that it  is  necessary to interpret the law in such a way  as  to necessarily avoid such a situation.  There appears to be  no difficulty  in both cases being tried together in  the  same Court or one after the other by different Courts.  In  fact, even  if we were to accept the submission made on behalf  of the  appellant, a similar situation can still arise.   There may   be  a  case  where  the  police  may  report  to   the Magistrate that the First Information Report was false,  and in such a case, according to the submissions made by learned counsel  for  the appellant, the  Magistrate  receiving  the report under s. 173, Cr.  P. C., would be competent to  file a  complaint against the informant for the offence under  s. 21 1, 1. P. C., in exercise of his power -under s.195(1)(b), Cr.   P. C. At the same time, there would be no bar to  that informant  filing  a complaint direct in the  Court  of  the Magistrate  on  the basis of his F. 1. R., so  that,  again, there  can  be two trials in the Court in one of  which  the informant would be the accused, and in the other, the person charged  in  the  First  Information  Report  would  be  the accused.  The situation will not, therefore, differ  whether we accept the submission made on behalf of the appellant, or do not do so. 542 This   aspect   is,  therefore,  not  at  all   helpful   in interpreting  the  scope  of s. 195(1)(b), Cr.   P.  C.  We, consequently,  hold that in this case the  complaint,  which was filed by the respondent, was competent and the  Judicial Magistrate  at  Chandigarh,  in  taking  cognizance  of  the offence, only exercised jurisdiction rightly vested in  him. He was not barred from taking cognizance of the complaint by the provisions of s. 195(1)(b), Cr.  P. C. In  this case, one more point that was canvassed  before  us was that the two offences under sections 204 and 385, I.  P. C., which were included in the complaint of the  respondent, were so inter-mixed with the offence under s. 21 1, I.P. C., that a trial for those two offences could not proceed if the trial for the offence under s. 21 1, I. P. C. was barred  by s.  195(1)(b),  Cr.  P. C. That question need not  be  dealt with  by us in view of our decision that cognizance  of  the offence under s. 21 I,, 1. P. C., has been rightly taken and the  trial  for that offence is not  vitiated.   The  appeal fails and is dismissed. V.P.S.                 Appeal dismissed. 543