Paragraph numbers below are the court’s original numbering, recovered from the source text.
3. Before us the argument which was put forward on behalf of Trivedi for the consideration of the High Court has been repeated and it has been urged strenuously by his learned counsel that in so far as the SDJM passed an order on the 6th of May, 1970 releasing him on bail and then another on the 31st of July, 1970 discharging him, the SDJM acted judicially and therefore as a Court, that it cannot but be held that these orders were passed in proceedings in relation to which the offence under section 211 of the Indian Penal Code was alleged to have been committed and that consequently the SDJM had no 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, 1970 or any of them? (b) If the answer to question (a) is in the affirmative, whether the offence under section 211 of the Indian Penal Code attributed to Trivedi could be regarded as having been committed in relation to the proceedings culminating in either or both of the said orders?
5. In finding an answer to question (a) I attach quite some 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 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: c "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the 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. "(3A) If, in any case triable by a Magistrate, the trial 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 c 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<eial duties and arc, on the other hand, functions of an executive nature such as the exercise of supervisory jurisdiction in relation to investigation carried out by the police or work done on the administrative side; and it may plausibly be argued that in the discharge of such functions a Magis- trate does not act as a Court. But then in my opinion a Magistrate cannot but be regarded as a Court when he acts judicially. This follows fram the provisions of section 6 itself. The Code de.es not contain any provision to the effect that no functions performed by a Magistrate in relation to criminal proceedings whether handled by him or dealt with by the police would be regarded as functions performed by a Court unless they are pos'.erior in point of time to the stage when he acts under section 190 of the Code. On tbe contrary, sections 496 and 497 which embrace bail matters specifically describe a Magistrate while dealing therewith as a Court and these sections operate fully at all stages of a case including that when the investigation has just started. There is nothing in the context in which the word 'Court' is used in these two sections and section 195 which would provide an indication that it has been used in two different senses therein, and in such a situation the legislature must be deemed to have used it in one and the same sense wherever it occurs in the Code. While decid- ing the question of bail, therefore, a Magistrate must be held to be K. P. TRIVEDI v. WEST BENGAL (Kasha!, J.) acting as a Court and not in any other capacity, irrespective of the stage which the case has reached by then, that is, whether it is still under investigation by the police or has progressed to the stage of an inquiry or tria,l by the Magistrate. It at once follows that the taking of cognizance of any offence by a Magistrate under section 190 of the Code is not a condition precedent for him to be regarded as a Court.
6. Nor do I feel that the opinions expressed by Halsbury and Lord Sankey lay dowu any different principle. Those opinions appear to me to cover only cases of tribunals which perform quasi-judicial func- tions but are not statutorily recognised as 'Courf. At page 342 of Volume 9 of Halsbury's Laws of England (third edition) appears the following passage in Para 809 : "Originally the term "court" meant, among other mean- ings, the Sovereign's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not courts, in the sense in which the term is here employed, namely, to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of volun- tary submission to their jurisdiction. Thus, arbitrators, committees of clubs, and the like, although they may be tri- bunals exercising judicial functions, are not "courts" in this sense of that term. On the other hand, a tribunal may be a court in the strict sense of the term although the chief part of its duties is not judicial. Parliament is a court, its duties are mainly deliberative and legislative : the judicial duties are only part of its functions. A coroner's court is a true court although its essential function is investigation." c In para 810 the learned anther proceeds to lay down the criteria which determine when a tribunal would be regarded as a Court. In his opinion, the elements to be considered are : ( 1) the requirement for a pnblic hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings. c 7 44 SUPREME COURT REP OR rs [J 979] 2 S.C.R. The learned author then quotes Lord Sankey's observations in Shell Co. of Australia Ltd. v. Federal Commissioner of Ta.xation( 1) and then gives numerous examples of tribunals which are not regarded as Courts. One common feature of such tribunals is that they are not described as Courts by statute and are charged with the performance of adminis- trative or executive functions as distinguished from judicial functions. Paragraph 812 on page 344 of the same Volume deals with the subject of creation of Courts and lays down : "Courts are created by the authority of the Sovereign as the fountain of justice. This authority is exercised either by statute, charter, letters patent, or Order in Council. In scme cases, a court is held by prescription, as having existed from time immemorial, with the implication that there was at some time a grant of the Court cy the Sovereign, which has been lost. "An Act of Parliament is necessary to create a court which does not proceed according to t]]e common law." Reference may usefully be made to Section 6 of the same Chapter in which the above paragraphs occm. That Section is headed "Magis- trates' Courts". The relevant part of paragraph 1041 with which the Section begins is to the following effect : "A magistrate's court consists of a justice or justices of the peace acting under any enactment or by virtue of his or their commission or under common Jaw (otherwise than as a court or committee of quarter sessions or a purely adminis- trative tribunal), or of a stipendiary magistrate." The combined effect of the various paragraphs forming part of the treatise and noticed above would be that a Court may be created by a statute and that when such a Court performs judicial functions, it will be deemed to act as a Court and, further, that Magistrates' Courts are regarded_ as such unless performing executive or administrative functions. That is how the position stands in England and there is nothing in the case of Shell Company of Australia Ltd. v. Federal Commissioner of Taxation (~upra) which runs to the contrary. It mQy be noted that in that case the question for decision was as to whether the Board of Review which had been constituted under the Australian Income Tax Assessment Act to review the decisions of the Commissioner of Taxation was or was not a Court an<\ it was in that context that Lord Sankey expressed his opinion. Obviously he was '1) f19J1] A.C. 275. P.C. ··…( K. P. TRIVEDI v. WEST BENGAL (Kasha/,!.) 7 45 not dealing with the functions Of a tribunal which had been statutorily labelled as a Court.
7. What I have said of Lord Sankey's opinion is true of the deci- sions of this Court in Virinder Kumar Satyawadi v. The State of Punjab(') and Smt. Ujjam Bai v. State of Uttar Pradesh.(') In the former the question for decision was as to whether a returning officer discharging functions under the Representation of the People Act, 1951 was a Court and in answering the same the Court referred to the case of Shell Company of Australia (supra) and other English and Australian authorities and then observed : "It iS unnecessary to traverse the same ground once again. It may be stated broadly that that distinguishes a court from a quasi-:judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a considera- tion of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi- judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attri- butes of a Court." In Ujjam Bai's case (supra) this Court was resolving a question as to whether an offtcer of the income-tax department was a Court and replied in the negative, broadly for the reason that even though taxing authorities follow a pattern of action which is considered judicial, they are not converted into Courts of civil judicature and that their actions are executive in nature. Neither of these cases deals with an authority on which the status n c of a Court is conferred by statute, nor with one forming part of the judiciary, ·such as a Magistrate in whose case the opinion of this Court would surely have been different as is apparent from the judgment of Hidayatullah, J., in Ujjam Bai's case (supra) which quotes the follow- ing pas·sage from Gullapalli Nageswara v. State of Andhra Pradesh(') (1) [1955] 2 SCR 1013. (2) [1963] 1 SCR 778. (3) [1959] Supp. 1 SCR 319. "The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the exe- cutive body or authority to conform to norms of judicial pro- cedure in performing some acfs in exercise of its executive power." and then proceeds : c "The taxing departments are instrumentalities of the Statec They are not a part of the Legislature; nor are they a part of the judiciary. Their functions are the assessment and collec- tion of taxes, and in the process of assessing ta.ioes they have to follow a pattern of action, which is considered judicial. They are not thereby converted into Courts of civil judicature. They still remain. the instrumentalities of the State and are within the definition of 'State' in Art. 12. In this view of the matter, their actions must be regarded, in the ultimate analysis, as executive in nature, since their determinations result in the demand of tax which neither the legislature nor the judiciary can collect. Thus, the actions of these quasi- judicial bodies may be open to challenge on the ground of breach of fundamental rights." It is thus clear that the source of power exercised by the authority, that is, whether it is an executive power or judicial power would make all the difference in the determination of the question as to whether the authority acts as a Court or merely as a quasi-judicial tribunal not func- tioning as a Court. In this connection a reference may also be made to section 19 of the Indian Penal Code coupled with illustration (b) appended thereto and section 20 thereof Section 19 : "The word "Judge" denote' not only c,very person who is officially designated as a Judge,, but also every person. "Who is empowered by law to give, in any legal proceed- ing, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judg- ment which if confirmed by some other authority, would be definitive, or "who is one of a body of persons, which body of persons is empowered by law to give such a judgment." K, P, TRIVEDI v. WEST BENGAL (Koshal, J.) Illustration ( b) : "A Magistrate exerci'sing jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge." Section 20 : "The words "Court of Justice" denote a Jndge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially." Although we are not here concerned with the terms "Judge" and "Court of Justice" properly so-called, the provisions above extracted c do give a definite indication of the attributes of a Court as used in cri- minal law generally. It may be noted that the Code and the Indian Penal Code are the main statutes operating in India in relation to the dispensation of criminal justice and may in a sense be regarded as sup- plementary to each other,, the Code forming the procedural link of the same chain of which the Indian Penal Code constitutes the link of sub- stantive law. This relation between the two enactments is further strengthened by the provision's contained in sub-section (2) oi section 4 (the definition clause) of the Code which runs thus : "4 (2) : Words which refer to acts done, extend also to illegal omissions; and "all words and expressions used herein and defined in the Indian Penal Code, and not hereinabove defined, shall be deem- ed to have the meanings respectively attributed to them by the Code." It is no doubt true that the expression "Court of Justice" does not appear to have been used in the Code (although the expression "Judge" does find a place in section 197 thereof), but then there is no escape from the conclusion that when a "Judge" (ancluding a Magistrate) who is empowered to act judicially and does so act constitutes not merely a Court bnt a Court of Justice.
8. Now I proceed to examine the relevant provisions contained in Chapter XIV of the, Code which carries the caption "INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE". It may be stated at once that although the Chapter is headed as stated, it is not confined to matters which are strictly concerned with the investi- gation stage but also deals with situations which arise after the investi- gation has been finalized. Reference may be made in this behalf to sub- section (2) of section 172 of the Code reads thus : c "Any Criminal Court may ·send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be enti- tled to sec them merely because they are referred to by the Court, but, if they are used by the police-officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police-officer, the pro- visions of the Indian Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply." The; sub-section clearly deals with the use of police-diaries at an in- quiry or trial which a Magistrate holds not in his administrative or exe- cutive capacity but undoubtedly as a Court. The caption of the Chapter therefore is not decisive of the question a·s to whether a particular provi- sion contained therein is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a Court. The contents of sections 169, 170 and 173 of the Code may now be scrutinised. They are re-produced below : "169. If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station or to the police-officer making. the investigation that there is not suffi- cient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before; a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial." "170. (1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magis- trate empowered to take cognizance of the offence upon a police-report and to try the accnsed or commit him for trial or, if the offence is bailable and the accused is able to give security,, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed." '"'( K. P. TRIVEDI v. WEST BENGAL (Kasha/, J.) 7 49 "(2) When the officer in charge of a police-station for- wards an accused pei·son to a Magistrate or take security for his appearance before such Magi'strate under this section, he shall send to such Magistrate any weapon ot other article, which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the circum- stances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused. "(3) If the Court of the District Magistrate or Sl!b-divi- sional Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons." "173. (1) : Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police-station shall- "(a) forward to a Magistrate empowered to take cogni- zance of the offence on a police-report a report, in the form prescribed by the State Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circums- tances of the case, and stating whether the accused (if arrested) bas been forwarded in custody, or has been released on his bond and, if so, whether with or without sureties, and "(b) communicate, in ·such manner as may be prescribed by the State Government, the action taken by him to the per- son, if any, by whom the information relating lo the commission of the offence was first given . "(2) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be sub- mitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police-station to make further investigation. "(3) Whenevtr it appears from a report fonvarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond_ or otherwise as he thinks fit. c " ( 4) After forwarding a report under this section the officer in charge of the police-station shall, before the com- mencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub-section ( 1) and of the first information report recorded under section 154 and all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confes- sions, if any recorded under section 164 and the state– ments recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses. "(5) Notwithstanding anything contained in sub-section ( 4), if the police–officer is of opinion that any part of any statement recorded under sub-section (3) of section 161 is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential in the inter- ests of justice and is inexpedient in the public interests, he shall exclude such part from the copy of the statement fur- nished to the accused and in such a case, he shall make a report to t_he Magistrate stating his reasons for excluding such part : "Provided, that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police-officer, pass such ord•crs as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused." Section 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation ( 1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magis- trate (section 169) (2) that there is sufficient evidence or reasonable ground as aforesaid (section 170). In either case the final report of the police is to be submitted to the Magistrate under sub-section (!) of section 173. Sub-section ( 3) of that section furth<::r provides that in the case of a r~port by the police that the accused has been released on his bond (which is the situation envisaged by section 169), the . ,f· . v K. P. TRIVEDI v. WEST BENGAL (Koshal, J.) Magistrate shall make "such order for the discharge of such bond or otherwise as he thinks fit". Now what are the courses open to the Magistrate in such a situation? He may, as held by this Court in A.bhinandan Iha & Others v. Dinesh Mishra(') . ( 1) agree with the report of the police and file the pro- ceedings, or (2) not agree with the police report and (a) order further investigation, or (b) hold that the evidence is suffi- cient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence com- plained of. The appropriate, course h•s to bo decided upon after a considera- tion of the report and 1'he application of the mind of the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judi- cial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the super- visory authority in relation to the investigation carried out by the police is the one covered by the course 2 (a) . The order passed by the Magistrate in each of the other two courses, that is, ( 1) and 2(b), follows a conclusion of the investigation and is a judicial order deter- mining the rights of the parties (the State on the onei hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one perform- ed in his capacity as a Court. c
9. The reasons which have weighed with me in coming to the conclusion arrived at in tho last paragraph are equally applicable to t'he coru;ideration of the question whether an order of bail passed by a Magistrate calls for the performance by him of his judicial functions. Such an order also decides the rights of the State and the accused and is made by the Ma~strate after th~ application of his mind and therefore in the discharge of his judicial duties, which factor consti- tutes it an act of a Court.
10. For a tribunal to be acting as a Court, it is not necessary that the parties must have a right of hearing or adducing evidence at every stage of the proceedings before it. This is specially true of Courts constituted as such by the legislature. Rderence may here be made to interlocutory orders issuing temporary injunctions or 5taying (1) [1967] 3 SCR 668. c SUPREME COURT REP OR TS ( 1979] 2 S.C.Rr p~o~eedings in a subordinate Court or dispossession of a party by CIVll Courts at the instance of a plaintiff or appellant and in the absence of the opposite party which comes into the picture later on after it is served with a notice. And even subsequent to the appearance of the party adversly affected, the existence of a prima facie case would till the scales against it so that the order earlier passed in favour of the other party is confirmed till the conclusion of the case on merits, even though the case may finally be decided otherwis•o and the interlocutory order found to be unjust and then vacared. And yet it can hardly be argued that the presiding officer of the Court docs not act as a Court when passing such an order. Really, the right to adduce evi- dence and be heard is to be taken into consideration as being available at one stage of the proceedings or the other. Thus in the case of an order passed by a Magistrate under sub-section (3) of section 173 of the Code in agreement with the po'lice report does not call for any hearing or the production of any evidence on the part of the accused, as it goes in his favour. If the Magistrate, on the other hand, dis- agrees with the report submitted by the police and takes cognizance of the offence, the accused comes into the picture and thereafter shall have the right to be heard and to adduce evidence in support of his innocence. Viewed in this context, all orders passed by a Magistrate acting judicially (such as orders of bail and those passed under sub- section (3) of section 173 of the Code discharging an accused or orders taking cognizance of the offence complained of) are parts of an integral whole which may end with a definitive judgment after art inquiry or a trial, or earlier according to the exigencies of the situation obtaining at a particular stage, and which involves, if need be, the adducing of evidence and the decision of the Magistrate on an appre- ciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part.
11. In the view that I have taken of the matter, I do not conside·: it neces·sary to go into the details of the conflict of opinion amongst the High Courts in India in relation thereto but I would touch briefly thereupon. In J. JJ. Boywalla v. Sordb Ri<Womji Engineer(') Beaumont, C. J. spe<iking for himself and Macklin, J., emphatically held that a Magistrate while passing a order releasing an accused person on bail or discharging him in pursuance of a report submitted by the police to the effect that the evidence was insufficient to sustain the charge, acts judicially and therefore as a Court within the meaning of that term as used in clause (b) of sub-section (!) of section 195 of the Code. That decision was followed by a Division Bench consis- (1) [1941] 43 Bombay Law Reporter 529. ,_ .. • .. 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) . 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.
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 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 : c "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, !.) 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. c 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 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 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.
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.