9911796707
TMI Blog1978 (12) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... School. On 18th April, 1970 Satya Narayan Pathak served a Notice on the appellant calling upon him to show cause why he should not be found guilty of negligence of duty. On receipt of the Notice, the appellant attempted to remove certain records from the school but he was prevented. On the same day, that is, on 18th April, 1970 the appellant complained in writing to the Officer In-charge of Bally Police Station, Howrah at 21.40 hours that Satya Narayan Pathak and others criminally trespassed, assaulted and abused him in filthy language and committed theft of money and valuable documents of the school. The Police treating the complaint of the appellant as First Information Report took cognizance of an offence under Sections 147, 448 and 379 I.P.C. and registered it. A warrant of arrest was issued against Satya Narayan Pathak and others. Satya Narayan Pathak attended the Court on 21-5-1970 and 21-7-1970 the dates fixed for submission of the Police report. The Police Officer who investigated the case on finding no evidence against Satya Narayan Pathak and others, named as accused, submitted a final report and the magistrate agreeing with the report discharged all the accused. As Sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncludes) Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877. While Section 190 of the Criminal Procedure Code enumerates the conditions requisite for initiation of proceedings, Section 195 bars taking cognizance of certain offences except on complaint by authorities specified in the Section. Section 195(1) (a) requires that the complaint should be by a public servant if the offences complained of are under Sections 172 to 188 of the Indian Penal Code. Sub- section (1)(b) refers to offences under Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 and requires the complaint in writing of the Court before whom the offence is alleged to have been committed in or in relation to any proceeding in any Court. Sub-section (c) relates to offences under Sections 463, 471, 475 or 476 when the offence is committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding a complaint in writing by the court is required. Sections 172 to 190 of the Indian Penal Code deal with offences constituting contempt of lawful authority of public s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there are Tribunals with many of the trappings of a court which nevertheless are not courts in the strict sense of exercising judicial power". In enumerating the propositions Lord Sankey observed: "In that connection it may be useful to enumerate some negative propositions on this subject: (1) A tribunal is not necessarily a Court in this strict sense because it gives a final decision. (2) Nor because it hears witnesses on oath. (3) Nor because two or more contending parties appear before it between whom it has to decide. (4) Nor because it gives decisions which affect the rights of subjects. (5) Nor because there is an appeal to a Court. (6) Nor because it is a body to which a matter is referred by another body". In enumerating the negative propositions the learned Judge relied on the decision in Rex. vs. Electricity Commissioners. In Shri Virinder Kumar Satyawadi vs. The State of Punjab. Venkatarama Ayyar, J. speaking for this Court quoted with approval the decision in Shell Co. of Australia (supra) and observed that the distinction between Courts and tribunals exercising quasi- judicial functions is well established, though whether an authority constituted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of a cognizable offence is received or such commission is suspected, the appropriate police officer has the authority to enter on investigation. In case of non-cognizable offence the officer shall not investigate without the order of a competent Magistrate. According to scheme of the Code investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts on an information relating to commission of an offence given to an officer in-charge of Police Station and recorded under Section 154 of the Code. Investigation consists generally of various steps, namely proceeding to the spot-ascertainment of facts and circumstances of the case, discovery and arrest of suspected offender, collection of evidence relating to the commission of the offence which may consist of examination of various persons including the accused, and the reduction of the statement into writing such as places and seizure of things and formation of opinion as to whether on material collected there is a case to place the accused before the Magistrate for trial and filing of the charge-sheet under Section 173 of the Criminal Procedure Code. After the investigation is complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the mischief of the second part of the Section. The crucial question that arises in this case is whether it can be said that when a person falsely charges another person of a cognizable offence before a Police Officer and when the Police Officer upon investigation finds that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate under Section 169 and the Magistrate agrees with him, an offence under Section 211 is committed in or in relation of any proceeding in any court'. It is settled law that when a Magistrate applies his mind under Chapter XVI that is on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for purpose of ordering investigation under Section 156 (3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence vide R. R. Chari v. State of U.P. and in Gopal Das v. State of Assam. When the Magistrate receives a report under Section 169 of the Criminal Procedure Code that there is not sufficient evidence or reasonable ground for sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, under Section 163 of the Criminal Procedure Code. It was held that directing further enquiry is entirely different from asking police to submit a charge-sheet. The only source open for the Magistrate if he is not satisfied with the police report under Section 169 is to take cognizance of an offence under Section 190(1) (c) of the Criminal Procedure Code. It may be noted that in M. L. Sethi v. R. P. Kapur & Anr., it was held that if the Magistrate disagrees with the opinion of the police he may proceed to take cognizance on the facts stated in the police under Section 190(1) (b). It is clear that when a Magistrate applies his mind to the contents of a complaint before him for the purpose of proceeding under Section 200 and the other provisions of the Code following it, he is taking cognizance of an offence as held by five judges Bench decision of this Court in Mowu v. The Superintendent, Special Jail, Nowgong, Assam and Others. The position regarding the case in which Magistrate accepts a report under Section 169 Criminal Procedure Code is different. On an analysis of the various sections, it appears that a report under Section 169 of the Cr. P. C. and the magistrate agreeing wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an only be said to be in the course of investigation by the police. In Chapter XIV which relates to information to the police and their powers to investigate, the Magistrate having jurisdiction over the area and empowered to take cognizance is given certain supervisory powers. Thus the Police Officer incharge of Police Station is required to refer the informant to the Magistrate when information as to a non-cognizable offence is received by him. The Police Officer shall not investigate a non-cognizable case without the orders of the Magistrate though the Police Officer is entitled to investigate a cognizable offence without the order of the Magistrate. The Magistrate under Section 190 is entitled to order an investigation into a cognizable offence. Section 157 Cr. P.C. requires the officer incharge of the Police Station to send a report to the Magistrate empowered to take cognizance of the offence of which he has received information. Under Section 159 Crl.P.C. the Magistrate receiving a report under Section 157 may proceed or depute any magistrate subordinate to him to proceed to hold a preliminary inquiry into the case. Section 164 empowers Presidency Magistrate or any Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this point. Strong reliance was placed by the learned counsel for the appellant on a decision in J. D. Boywalla v. Sorab Rustomji Engineer. Boywalla, the appellant in the case, lodged a complaint with the police against the respondent Sorab Rustomji Engineer for cheating in respect of three rupees. The police after investigation submitted a report stating that no offence has been disclosed against him with a request that he may be discharged and his bail bond cancelled. On receipt of the report the Magistrate discharged the accused and cancelled the bail bond. Sorab Rustomji Engineer, against whom the complaint was filed, filed a case under Section 211 of the I.P.C. alleging that the appellant Boywalla instituted criminal proceedings against him knowing that there is no just or lawful ground for such proceedings. The appellant contended that it is the Magistrate that can lodge a complaint under Section 195 (b) of the Cr.P.C. and that no court shall take cognizance of the offence punishable under Section 211 of the I.P.C. when such offence is alleged to have been committed in or in relation to any proceeding to a court except on a complaint in writing of such court. John Beaumont Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial capacity alone is not enough. The Supreme Court in M. L. Sethi's case (supra) expressed its dissent from the view taken in Ghulam Rasul v. Emperor where the learned Judge held that a complaint by criminal court is necessary when a false report is made in an investigation by the police. The facts of the case are that Ghulam Rasul made a report to the police that a certain person stole his watch from his car. On investigation the police came to the conclusion that the report was false and that the watch had been removed by the petitioner himself. The case was reported to the Magistrate for cancellation. A complaint was given against Ghulam Rasul for offence under Sections 193 and 211 I.P.C. and the Magistrate took cognizance and recorded the evidence of the prosecution witnesses and framed charge against him. Accepting the contention on behalf of Ghulam Rasul the High Court held that in view of section 195(1) (b), Criminal Procedure Code, the Magistrate's taking cognizance of the offence was illegal. The Court observed: "I am clear that the words in this sub- section 'in relation to any proceeding in any court' apply to this case of a false report or a fals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as to whether a complaint is necessary when on a police report under Section 169 the Magistrate does not take any further action. The Bombay, Saurashtra and Andhra Pradesh High Courts in 1946 Bombay 7(11), 1952 Saurashtra 67(68) and 1969 A.P. 281 (287) have held that a Magistrate passing an order on a final report of police under Section 173 referring the case as false should be deemed to be a Court passing a judicial order disposing of the information to the police, and that in such a case, the complaint of the Magistrate is necessary for the prosecution of the informant under Section 211 of the I.P.C. The Madras, Calcutta and Allahabad High Courts in A.I.R. 1934 Madras 175, A.I.R. 1948 Allahabad 184 Full Bench and A.I.R. 1916 Calcutta 593 following 1921 Patna 302 and 1917 Calcutta 593 have held the other view. For the reasons already stated I hold that when no further proceedings are taken by the Magistrate on receipt of a police report under Section 169 there is no proceeding in or in relation to any court and, therefore, no complaint by the court is necessary. The next question which arises in this case is that whether a complaint by the court is necessary because of the arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. The position, therefore, is the question whether remand and bail proceedings before the Magistrate in pursuance of information given to the police of a cognizable offence are proceedings in or in relation to a court is left open. To determine whether the remand or bail proceedings are proceedings in a court it is useful to refer again to Chapter XIV of the Criminal Procedure Code. On a complaint by an informant relating to a commission of a cognizable offence the investigation starts. The information may not be against any person. When an investigation cannot be completed in 24 hours after the arrest of the accused and when the officer is of the view that there are grounds for believing that the accusation or information is well-founded the officer is required to transmit to the nearest Magistrate a copy of the entries in the diary and to forward the accused to the Magistrate. When the accused is produced the Magistrate is required to act under Section 167(2) of the Criminal Procedure Code. The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el that the requirements for being a court for the purpose of Section 195(2) have not been satisfied. The intention of the legislature in prescribing a bar when an offence under Chapter XI of I.P.C. is committed, that is, when false evidence is given or offence against public justice is committed is that the court should decide whether a complaint should be given for an offence committed before it and if satisfied should prefer the complaint itself. Before a court gives a complaint, it will have to satisfy itself that a prima facie case is made out and that it is in the interest of justice that a complaint should be lodged. The purpose, therefore, is that a private party should not be permitted to make a complaint regarding offences committed in or in relation to court proceedings. In an investigation by the police the complainant is only in the background. He might not have mentioned the name of any person as being involved in the crime. Taking all the circumstances into account, I am, in the absence of the complainant, unable to hold that remand and bail proceedings before cognizance of the offence is taken could be held to be proceedings before a court bearing in mind the restri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction. Before making a complaint a preliminary inquiry is contemplated. Normally, it would mean that the person against whom a complaint is preferred has an opportunity to show why a complaint should not be preferred against him. These stages are not reached in a case when the Magistrate has still to take cognizance of an offence. The restricted meaning given to the Code in section 195(2) Cr. P.C. read along with the conditions to be specified before a complaint is preferred by the court, inclines me to hold that the proceedings before a Magistrate in which he agrees with the report by the police under section 169, Criminal Procedure Code, and the proceedings in remand or bail applications during investigation will not amount to proceedings in or in relation to court. In the result I agree with the High Court that there was no proceeding in or in relation to a court, and, therefore, section 195(1)(b) of Criminal Procedure Code is not attracted. The appeal is dismissed. KOSHAL, J. I have had the advantag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready reference: 195. (1) No Court shall take cognizance- (a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is sub-ordinate; or (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. (2) In clauses (b) and (c) of sub-section (1), the term "Court" includes a Civil, Revenue, or Criminal Court, but does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f them? (b) If the answer to question (a) is in the affirmative, whether the offence under section 211 of the Indian Penal Code attributed to Trivedi could be regarded as having been committed in relation to the proceedings culminating in either or both of the said orders? 5. In finding an answer to question (a) I attach quite some importance to the provision of sections 6, 496 and 497 of the Code. These sections are extracted below: "6. Besides the High Court and the Courts constituted under any law other than this Code for the time being in force, there shall be five classes of Criminal Courts in India, namely:- I. Courts of Session: II. Presidency Magistrates: III. Magistrates of the first class: IV. Magistrates of the second class: V. Magistrates of the third class." "496. When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police- station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond without sureties for his appearance to hear judgment delivered. "(5) A High Court or Court of Sessions and, in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody." Magistrates are specifically labelled as Courts by the statutory provisions of section 6 and therefore have to be regarded as such. It is no doubt true that the Code assigns to a Magistrate various functions which do not fall within the sphere of judicial duties and are, on the other hand, functions of an executive nature such as the exercise of supervisory jurisdiction in relation to investigation carried out by the police or work done on the administrative side; and it may plausibly be argued that in the discharge of such functions a Magistrate does not act as a Court. But then in my opinion a Magistrate cannot but be regarded as a Court when he acts judicially. This follows from the provisions of section 6 itself. The Code does not contain any provision to the effect that no functions performed by a Magistrate in relation to criminal proceedings whether handled by him or dealt with by the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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." In para 810 the learned author proceeds to lay down the criteria which determine when a tribunal would be regarded as a Court. In his opinion, the elements to be considered are : (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) a provision that a member of the tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings. The learned author then quotes Lord Sankey's observations in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation and then gives numerous examples of tribunals which are not regarded as Courts. One common feature of such tribunals is that they are not described as Courts by statute and are charged with the performance of administrative or executive functions as distinguished from judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer discharging functions under the Representation of the People Act, 1951 was a Court and in answering the same the Court referred to the case of Shell Company of Australia (supra) and other English and Australian authorities and then observed : "It is unnecessary to traverse the same ground once again. It may be stated broadly that distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court." In Ujjam Bai's case (supra) this Court was resolving a question as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally designated as a Judge, but also every person. "Who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which if confirmed by some other authority, would be definitive, or "who is one of a body of persons, which body of persons is empowered by law to give such a judgment." Illustration (b) : "A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment, with or without appeal, is a Judge." Section 20 : "The words "Court of Justice" denote a Judge who is empowered by law to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially." Although we are not here concerned with the terms "Judge" and "Court of Justice" properly so-called, the provisions above extracted do give a definite indication of the attributes of a Court as used in criminal law generally. It may be noted that the Code and the Indian Penal Code are the main statutes oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l which a Magistrate holds not in his administrative or executive capacity but undoubtedly as a Court. The caption of the Chapter therefore is not decisive of the question as to whether a particular provision contained therein is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a Court. The contents of sections 169, 170 and 173 of the Code may now be scrutinised. They are re-produced below : "169. If, upon an investigation under this Chapter, it appears to the officer in charge of the police-station or to the police-officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police-report and to try the accused or commit him for trial." "170. (1) If, upon an investigation under this Chapter, it appears to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police- station to make further investigation. "(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. "(4) After forwarding a report under this section the officer in charge of the police-station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, free of cost, a copy of the report forwarded under sub- section (1) and of the first information report recorded under section 154 and all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any recorded under section 164 and the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2 (a). The order passed by the Magistrate in each of the other two courses, that is, (1) and 2(b), follows a conclusion of the investigation and is a judicial order determining the rights of the parties (the State on the one hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore as one performed in his capacity as a Court. 9. The reasons which have weighed with me in coming to the conclusion arrived at in the last paragraph are equally applicable to the consideration of the question whether an order of bail passed by a Magistrate calls for the performance by him of his judicial functions. Such an order also decides the rights of the State and the accused and is made by the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate on an appreciation thereof. They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part. 11. In the view that I have taken of the matter, I do not consider it necessary to go into the details of the conflict of opinion amongst the High Courts in India in relation there to but I would touch briefly thereupon. In J. D. Boywalla v. Sorab Rustomji Engineer Beaumont, C. J. speaking for himself and Macklin, J., emphatically held that a Magistrate while passing a order releasing an accused person on bail or discharging him in pursuance of a report submitted by the police to the effect that the evidence was insufficient to sustain the charge, acts judicially and therefore as a Court within the meaning of that term as used in clause (b) of sub-section (1) of section 195 of the Code. That decision was followed by a Division Bench consis- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise in the case then before the Court which made the following observations in relation thereto : "In the case of Badri vs. State, where an offence under section 211, I.P.C., was alleged to have been committed by the person making a false report against the complainant and others to the police, it was held that it was an offence in relation to the remand proceedings and the bail proceedings which were subsequently taken before a Magistrate in connection with that report to the police, and, therefore, the case was governed by section 195 (1) (b), Cr. P. C., and no cognizance of the offence could be taken except on a complaint by the Magistrate who held the remand and bail proceedings. We do not consider it necessary to express any opinion whether the remand and bail proceedings before Magistrate could be held to be proceedings in a Court, nor need we consider the question whether the charge of making of the false report could be rightly held to be in relation to those proceedings. That aspect need not detain us, because, in the case before us, the facts are different. The complaint for the offence under section 211, I.P.C. was taken cognizance of by the Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as correct." These observations cannot be held to mean that if an order of cancellation of a case has actually been passed by a Magistrate in agreement with the report of the police to the effect that no sufficient evidence was available against the accused, such order could not be regarded as a judicial proceeding and the Magistrate passing it could not be given the status of a Court. This is apparent from the last sentence of the passage just above extracted which indicates that all that was meant was that if Blacker, J., meant to say that even though no proceeding at all had been taken by the Magistrate, clause (b) of sub-section (1) of section 195 of the Code would be attracted merely for the reason that the police had held an investigation which would at a later point of time result in any proceedings before the Magistrate this Court could not agree with him. Another fact which may be noted in this connection is that judgment in Ghulam Rasul vs. Emperor (supra) does not state in unmistakable terms that any order of cancellation of the case was passed by the concerned Magistrate and all that is mentioned is that the police had reported the case for "cancellation" ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
