KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL
Citation: [1979] 2 S.C.R. 717; 1978 INSC 257
Court: Supreme Court of India
Bench: JASWANT SINGH , P.S. KAILASAM, A.D. KOSHAL
Judgment date:
Case summary
1978 INSC 257. Supreme Court of India judgment dated 1978-12-13. KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL. Read the judgment and case details on LawSphereX.
Judgment text
• • ' • ' • KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL December 13, 1978 [JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ. ] 717 Code of Crindnal 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). Section 195(1)(b) of the Code of Criminal Procedure provides that no court shail take cognizance of any offence punishable under any of the sections enumerated therein (one of which is s. 2'11) 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 secre~ tary.
After investigation the police found that there was no evidence against the accused and therefore, the Mlagistrate 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 iujury to him and others knowing that there was no just or lawful ground and thereby caused pecuniary loss Gnd 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 ot the offence under s. 211 ! PC in view of the provisions of s. 195 (I) (b) of the Cr. P. C. The High Court refused to quash the proceedings. A B c D E On further appeal it was contended that an order passed by a Magistrate F on a report submitted by the police under s. 173 Cr. P. C. being a judicial order the bar of s. 195(1)(b) would be attracted.
Allowing the appeal, HELD : Per Koshal, J. (with whom las"lant Singh, J. agreed) 1. The con1plaint against the appellant was in respect of an offence alleged to G have been committed in relation to a proceeding in court. In taking cogni- zance of it the Magistrate acted in contravention of the bllr 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 '05 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 H A B c D E F G H 718 SUPREME COURT REPORTS [1979] 2 s. c. R. the StJhere of judicial duties and it may plausibly be argued that in the dis- charge of those functions he does not act as a court.
But then he cannot but be regarded rui a court when he act!! judicially. Sections 4. :96 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 sens'e wherever it occurs in the Code. [743 B, 742 D-tfI 3. The well accepted position is that a court created by ~ statute, when it performs judicial functions, would be deemed to act Us 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, [19311 AC 275 PC and Halsbury's Laws of England (3rd Edn. ) Vol. 9 p. 342; Virinder Kumar Satyawadi v.
The State of Puniab, [1955] 2 SCR 1013; Smt. Ujiam Bai v. State of U . P. , [1963] 1 SCR 778; referred to. 4. Tue source of power exercised by the authority, i. e. whether it is executive or judicial power, would make all the difference in the determina~ tion of the question whether the authority acts as a court or merely as a quasi judicial tribunal. [746 FJ. S. Section 4(2) of the Code of Criminal Procedure provides that ''all words and expressions used herein and defined in the IPC and not herein· above defined shall be deemed to have the meanings respectively attributed to them by the Code. " In the maher 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 supplemen· tary to each other. The term "Judge" and "Court of justice" used in ss. 19 and 20 of the Indian Penal Code give an indidition 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 (induding 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 deci(jive of the question whether a particular provision contained in it is lim. ited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deW. s with his judicial functions. as a court. Although Chapter XIV is headed "Information to the police and their powers to Investigate", it is not confined to matters which are strictly concerned with the investigation stage but also deals with situations arising after the investigation has been finalised. For example, s.
172(2) clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but as a court. Similarly sections 169 and 170 are another instance in point in which an order passed by a Magistrate is a judicial order determining the rights of the parties after application of his mind. If thRt • hal, J. Kailasam, J. gave a dissenting Opinion. J ASWANT 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 3gree with the view expressed by my learned Brother Kailasam, I >Ill inclined to agree with the opinion ct and the conclusion arriv~d at by my learned brother Koshal. KAILASAM, J. This appeal is filed by special leave by Kamla- pati Trivedi against the judgment of the Calcutta High Court iri 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 appellan,t 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 h~ 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 pre- vented. 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 cri- minally 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 iiQpellant as First Information Report took cognizance of an offence under Sections 147, 448 and B c D E F G H A 8 c D E F G ff 722 SUPREME COURT REPORTS (1979] 2 S. C. R. 379 I. P. C. and registered it. A warrant of arrest was issued against Satya Narayan Pathak and others. Salya Narayan Pathak attended the Coi;rl on 21-5-1970 and 21-7-1970 the dates fixed for sub- mission 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 crim1, nal proceedings with intent to cause injury to him and of1ers, for offences under Sections 147, 448 and 379 knowing that there was nn just or lawful ground and had caused pecuniary loss and agony to him, he preferred a complaint against the appellant for offences under Sections 211 and 182 of the I. P. C. on 20th Octobe! ·, 1970. The learned Magistrate took cognizance of the case ~nd S'Jmmoned the apj::ellant under Section 211 of the Indian Penal Cod. ;, fixing 10th December, 1970 for appearance of the appellant. On 16th November, 1970 the appellant appeared in court and wa:. released on bail. The appellant moved the High Court of Calcutta for quashing the proceeding of the Magistrate on the ground that the cog- nizance taken by the Magistrate was bad aod withom jurisdiction for non-compliance of the provisions 0f Section 195 (1) (b) of Criminal Procedure Code.
The learned Judge refused to quash the proceed- ings and discharge the accused, by judgment dated 18th August, 197 l. Against the order of the Single Judge of the High Court, the present appeal to this Court has been filed. Toe main ground of attack in this appeal is that t.! ;ic High Court fail- ed to appreciate the meaning of the words "in relation to any proceed- ings in any court" in Section 195(1) ('b) of the Code of Criminal Pro- cedure. It is submited that when a final report was submitted by the Police under Section 173 of Criminal Procedure Code and lhe Magist- rate passed an order it would be a judicial order and the bar under Section 195 ( 1) (b) would be attracted. The qnestion that arises for consideration is whether on the facts of the case the bar against taking cognizance in Section 19:i (1) (b) is attracted. Section 195(1)(b) so far as it is relevant for ·:he purpose of this case may be extracted : "195(1) No court shall take cognizance (a). . . . . . . . . . . . . .
. . . . . . . ... (b) of any offence puni'shable under any of the follow- ing sections of the same Code, namely, i:ections · -~ • • ' • ' • _j- ' • I K. P. TRIVEDI v. WEST BENGAL (Kailasam, J. ) 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 rela- tion 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 tak- ing 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 comp- laint in writing by the court is required. Sections 172 to 190 of the Indian Penal Code deal with offences constituting contempt of lawful authority of public servants.
The bar to taking cognizance of offences under Sections 172 to 188 except on a complaint by the public servant is laid down in Section 195(1) (a) of the Code of Criminal Procedure. Chapter XI, of the Indian Penal Code relates to false evidence and offences against public justice. The cases of offence such as under Section 463, 471, 475 or 476 alleged to have been committed by a party in a proceeding in any court in respect of a document produced or given in evidence in such proceeding, the complaint in writing of such court is required. The policy behind the bar for institution of criminal proceedings by a private party is that when offences are com- mitted 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. · A B c D E F G H A B c D 724 SUPREME COURT REPORTS [1979] 2 s. c. R.
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 proceed- ing 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) arrd (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 i[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 'in- cludes'. 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 sl:! tcd : "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 exer- E cising judicial power''. In enumerating the propositions Lord Sankey obs~rved: "In that connection it may be useful to enumerate mine negative propositions on this subject : ( 1) A tribunal is not necessarily a Court in this strict sense because it gives a final F 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 de- sion's which affect the rights of subjects. (5) Nor because there is an appeal to a Court. 06) Nor because it is a body to G H 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. ( 2 ) 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- I (1931) A. C, 275, P. C. at pp. 296, 297 (2) [1924] I K. B. 171 (3) [1955] 2 S. C. R. 1013 > • n °ognizable. When information of the commission of a cognizable •''e· . "' is received or such commission is suspected, the appropri · po 1 · • c'licer has the authority to enter on investigation. (I) [1963] 1 S. C. I 778.
8-40 SCl/79 E F G H A B c D E F 726 SUPREME COURT REPORTS [ 1979] 2 S. C. R. In case of non-{X)gnizable offence the officer shall not investigate withaut 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 cogniz- able offence. Investigation starts ou an information relating to commis- sion of an offence given to an officer in-charge of Police Station and recorded under Section 154 of the Code. Investigation consists general- ly of various step~, namely proceeding to the spot-ascertainment of facts and circumstances of the case, discovery and arrest of susp~cted offender, collection of evidence relating to the commission of the offence which may consist.
of examination of various persons incluC:i 1g the accused, and the reduction of the statement into writing such as places and seizure of things and formation of opinion as to whether on material collected there is a case to place the accused before the Magistrate for trial and filing of the, charge-sheet under Section 173 of tile Crimi- nal Procedure Code. After the investigation is completed and a charge- sheet is filed under Section 173 of the Criminal Procedure Code the question of taking cognizance arises. Section 190 of th:'> Criminal Pro- cedure Code lays down conditions necessary for initiation of proceed- ings. It provides for that any Presidency Magistrate, District Magis- trate or Sub-Divisional Magistrate or any other Magistrate specially em- powered 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 i'' ( 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 Sedon 173. G When the Police Officer upon investigation farms an cction (1) of ~ection 195 of the Code. Sub-sections (1) and (2) of that section may be reproduced here for ready reference : y .. .. • • • • ... • • • • K. P. TRIVEDI v. WEST BENGAL (Kasha/, J. ) 73 9 195.
(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 punish- able under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been com- A B c mitted by a party to any proceeding in any Court in respect D of a document produced or given in evidence in such pro- ceeding, 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 com- mitted 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 : E F G "The police submitted a final report and so the Magistrate dis- charged him from his bail bond but there was no criminal proceeding before the Court against Satyanarayan. The proceeding before the H Court becomes a criminal proceeding only when a Court takes cogni- zance and not before. Whatever the view of the other High Courts 740 SUPREME COURT REPORTS [1979] 2 s. c. R. A may be, the consistent view of this High Court is that so long as cognizance is not taken it canot 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 (l)(b) of the Code is not attracted. " B 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 C 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 D have been committed and that consequently the SDJM had no juris· diction 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, E 1970 or any of them? F G H (b) If the answer to question (a) is in the affirmative, whether the offence under section 211 of the Indian Penal Y ..
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 im- portance 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 Criminal Courts in India, namely :- I. Courts of Session: II. Presidency Magistrates: ID. Magistrates of the first class: N. Magistrates of the second class: Y Maf;strates of the third class. " • .. • • • .. • • K, P. TRIVEDI v. WEST BENGAL (Koshal, !. ) 7 41 "496.
When any person other than a person accused of A 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 proceed- ings before such Court to give bail, such person shall be re- leased 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 warant 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: B c D "Provided that the Court may direct that any person E 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 cal_e may be, that there arc not reasonable grounds for believing that the accus- ed 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 herein- after provided. " ( 3) An officer or a Court releasing any person on bail under snb-section (I) or sub-section (2) shall record in writing his or its reason for so doing. F G "(3A) If, in any case triable by a Magistrate, the trial H of a person accused of any non-bailable offence is not con- cluded within a period of sixty days from the first date fixed 9-40 SCI/79 A c D E F G H 742 SUPREME COURT REPORTS [1979] 2 S. C. R.
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, unle:;s 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 judg- ment 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 or 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 arc 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 func- tions which do not fall wi. thin the sphere of jud • • .. K. P, TRIVEDI v. WEST BENGAL (Kasha/, J. ) 7 5 3 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(2) . A 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 Allaha- bad High Court in Hanwant v. Emperor(') and by a Full Bench of the Lahore High Court in Emperor v. Hayat Fateh Din(') merits rejection for the reasons stated above. B 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. 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 sec- tion 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, reman4 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 dis- charge. Thereafter, the appellant raised an objection in the Court of the Magistrate to the effect that cognizance of the offence under sec- t ion 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 (l) A. LR. 1952 Saurashtra 67. (2) [1963) Indian Law Reports 2 Allahabad 359. (3) A. I. R.
1948 Allahabad 184. (4) A. LR. 1948 Labore ,184. (5) [1967J 1s. c.. ~. 520. c D E F G •. • 754 SUPREME COURT REPORTS [1979] 2 s. c. R. A filed by the respondent. Reliance was placed on behalf of the appel- lant 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 : • B c D E F G H "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 proceed- ings which were subsequently taken before a Magistrate in connection with that report to the police, and, therefore, the case was governed by section J 95 (1) (b), Cr. P. C.
, and no cognizance of the offence could be taken except on a com- plaint by the Magistrate who held the remand and bail pro- ceedings. 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 cogni- zance 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 bands 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) (h), Cr. P . C. arose. These two cases are a1'o, therefore, of no assistance to the appellant. On the same ground, the deci- sion of the Bombay High Court, in J. D. Boywalla vs. Sorab Rustomji 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 repcrt in respect of which the complaint under section 211, l. P. C. was sought to be filed. " 13. In another part of the judgment deciding M. L: Sethi v. R. P. , Kavur (snpra) this Conrt disagreed with the view expressed in Ghulam + • ,. • • ' .. ~ K. p. TRIVEDI v. WEST BENGAL (Koshal, !. ) 755 Rasul v. Emperor(') wherein Blacker, J.
, made the following observa- tions : ''Cc "I am clear that the words in this sub -section "in rela- tion to any proceedings iu 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 iu consequence of this be a trial in the criminal Court, and I find support for this view iu the case reported as 1929 Sind 13 2 ( 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 inten- ded to say that without any proceeding being taken by the Magistrate in the case which was investigated by the p<ilice, it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding follow- ing 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 can- cellation of a case has actually been passed by a Magistrntc in agree- ment 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 i' 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 (! ) 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 (I) A. I. R. 1936 Lahore 238. A B c D E F G H 756 SUPREME COURT REPORTS [1979] 2 S. C. R. A of cancellation of the case was passed by the concerned Magistrate and all that is mentioned is that the police hlftl, reported the case for "cancellation", which may well mean that really no order of cancel- lation had in fact been made by the Magistrate. 14.
As the order releasing Trivedi on bail and the one ultimately B 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 majter 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 tho police against Pathak C 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) afore-mentioned is also therefore fully satisfied. D 15.
For the reasons stated, I hold that the cc1111plaint 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. Jn 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 Jn accordance with the opinion of the ma1ontv, the appe~l is allowed, the order of the High Court is set aside and the proceedings t3ken by the Sub-Divisi8nal Judicial Magistrate against the appellant, Kamlapati Trivedi, are quashed. N. V. K. ' Appeal allowed. • • • ,. •
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