Criminal Appeal No 45 of 1972
Appeal by Special Leave from the Judgment and Order dated 18 8 71 of the Calcutta High Court in Crl
Revision No 1006 of 1970
Sukumar Ghosh for the Appellant
M M Kshatriya and G section Chatterjee for the Respondent
Jaswant Singh J concurred with the Opinion of Koshal J Kailasam J gave a dissenting Opinion
JASWANT SINGH J
I have had the advantage of going through the judgments prepared by my esteemed Brothers Kailasam and Koshal
While I find myself unable to agree with the view expressed by my learned Brother Kailasam I am inclined to agree with the opinion of and the conclusion arrived at by my learned brother Koshal
KAILASAM J
This appeal is filed by special leave by Kamlapati Trivedi against the judgment of the Calcutta High Court in Criminal Revision No 1006 of 1970 by which it refused to quash the proceedings which were taken cognizance of by the Magistrate on a complaint given by one Satya Narayan Pathak
Satya Narayan Pathak is the Secretary of Bhartiya Primary School in Howrah
The appellant before us Kamlapati Trivedi was a Head Teacher of the Bhartiya Primary School
On 18th April 1970 Satya Narayan Pathak served a Notice on the appellant calling upon him to show cause why he should not be found guilty of negligence of duty
On receipt of the Notice the appellant attempted to remove certain records from the school but he was prevented
On the same day that is on 18th April 1970 the appellant complained in writing to the Officer In charge of Bally Police Station Howrah at 2140 hours that Satya Narayan Pathak and others criminally trespassed assaulted and abused him in filthy language and committed theft of money and valuable documents of the school
The Police treating the complaint of the appellant as First Information Report took cognizance of an offence under Sections 147 448 and 722 379 IPC and registered it
A warrant of arrest was issued against Satya Narayan Pathak and others
Satya Narayan Pathak attended the Court on 21 5 1970 and 21 7 1970 the dates fixed for submission of the Police report
The Police Officer who investigated the case on finding no evidence against Satya Narayan Pathak and others named as accused submitted a final report and the magistrate agreeing with the report discharged all the accused
As Satya Narayan Pathak felt that the appellant instituted criminal proceedings with intent to cause injury to him and others for offences under Sections 147 448 and 379 knowing that there was no just or lawful ground and had caused pecuniary loss and agony to him he preferred a complaint against the appellant for offences under Sections 211 and 182 of the IPC on 20th October 1970
The learned Magistrate took cognizance of the case and summoned the appellant under Section 211 of the Indian Penal Code
fixing 10th December 1970 for appearance of the appellant
On 16th November 1970 the appellant appeared in court and was released on bail
The appellant moved the High Court of Calcutta for quashing the proceeding of the Magistrate on the ground that the cognizance taken by the Magistrate was bad and without jurisdiction for non compliance of the provisions of Section 1951 b of Criminal Procedure Code
The learned Judge refused to quash the proceedings and discharge the accused by judgment dated 18th August 1971
Against the order of the Single Judge of the High Court the present appeal to this Court has been filed
The main ground of attack in this appeal is that the High Court failed to appreciate the meaning of the words in relation to any proceedings in any court in Section 195 1 b of the Code of Criminal Procedure
It is submitted that when a final report was submitted by the Police under Section 173 of Criminal Procedure Code and the Magistrate passed an order it would be a judicial order and the bar under Section 195 1 b would be attracted
The question that arises for consideration is whether on the facts of the case the bar against taking cognizance in Section 1951b is attracted
Section 1951b so far as it is relevant for the purpose of this case may be extracted 1951 No court shall take cognizance a    b of any offence punishable under any of the following sections of the same Code namely sections 723 193 194 196 195 199 200 205 206 207 208 209 210 211 and 228 when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate or c    2 In clauses b and c of sub section 1 the term Court includes Civil Revenue or Criminal Court but does not include a Registrar or Sub Registrar under the Indian Registration Act 1877
While Section 190 of the Criminal Procedure Code enumerates the conditions requisite for initiation of proceedings Section 195 bars taking cognizance of certain offences except on complaint by authorities specified in the Section
Section 1951 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 1b 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 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 1951 a of the Code of Criminal Procedure
Chapter XI of the Indian Penal Code relates to false evidence and offences against public justice
The cases of offence such as under Section 463 471 475 or 476 alleged to have been committed by a party in a proceeding in any court in respect of a document produced or given in evidence in such proceeding the complaint in writing of such court is required
The policy behind the bar for institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence committed against public justice it should be the concerned authority that should prefer a complaint and no one else
724 In this appeal we are concerned with the question whether the offence under Section 211 IPC is committed in or in relation to any proceeding in any court
Before I deal with the question whether the offence is committed in or in relation to any proceeding in any court I have determined the meaning of the word court  for the purpose of this Section
Sub section 2 to Section 195 states that in clauses b and c of sub section 1 the term Court includes a Civil Revenue or Criminal Court but does not include a Registrar or Sub Registrar under the Indian Registration Act 1877
It may be noted that the word includes  was introduced by an amendment to sub clause b Act 18 of 1923 instead of the word means
In the Criminal Procedure Code 1974 the word means  has been introduced in the place of includes 
To some extent the use of the word includes  may widen the scope of the definition
In Halsbury s Laws of England third edition volume 9 at page 342 the meaning of court is given
At page 343 it is stated many bodies are not courts although they have to decide questions and in so doing have to act judicially in the sense that the proceedings must be conducted with fairness and impartiality
Lord Sankley in Shell Co of Australia Ltd vs Federal Commissioner of Taxation has enumerated some negative propositions as to when a Tribunal is not a court
The learned Judge observed The authorities are clear to show that there are Tribunals with many of the trappings of a court which nevertheless are not courts in the strict sense of exercising judicial power
In enumerating the propositions Lord Sankey observed In that connection it may be useful to enumerate some negative propositions on this subject 1 A tribunal is not necessarily a Court in this strict sense because it gives a final decision
2 Nor because it hears witnesses on oath
3 Nor because two or more contending parties appear before it between whom it has to decide
4 Nor because it gives decisions which affect the rights of subjects
5 Nor because there is an appeal to a Court
6 Nor because it is a body to which a matter is referred by another body
In enumerating the negative propositions the learned Judge relied on the decision in Rex
vs Electricity Commissioners
In Shri Virinder Kumar Satyawadi vs The State of Punjab
Venkatarama Ayyar J speaking for this Court quoted with approval the decision in Shell Co of Australia supra and observed that the dis 725 tinction between Courts and tribunals exercising quasi judicial functions is well established though whether an authority constituted by a particular enactment falls within one category or the other may on the provisions of that enactment be open to argument
After referring to the various decisions the learned Judge observed it may be stated broadly that what distinguishes a Court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it
It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
This view was accepted by the Supreme Court in Smt
Ujjam Bai vs State of Uttar Pradesh where Justice Hidayatullah observed that though the taxing authorities follow a pattern of action which is considered judicial they are not converted into courts of civil judicature and they still remain instrumentalities of the State and are within the definition of the State
The answer to the question as to what is court  in the Criminal Procedure Code is not free from difficulty for in many places the word Magistrate as well as court is used in identical situations
Section 6 of the Criminal Procedure Code states that besides the High Courts and the Courts constituted under any law other than this Code for the time being in force there should be five classes of Criminal Courts in India namely i Courts of Sessions ii Presidency Magistrate iii Magistrates of the first class iv Magistrates of the second class v Magistrates of the third class
Criminal courts according to this section therefore consist of courts specified besides the High Court and courts that are constituted under any other law other than Criminal Procedure Code
The Code of Criminal Procedure provides not merely judicial enquiry into or trial of alleged offences but also for prior investigation thereof
Section 5 of the Code provides that all offences under Indian Penal Code shall be investigated inquired into and tried and otherwise dealt with in accordance with the provisions hereinafter contained
For the purposes of investigation offences are divided into two categories cognizable  and non cognizable
When information of the commission of a cognizable offence is received or such commission is suspected the appropriate police officer has the authority to enter on investigation
726 In case of non cognizable offence the officer shall not investigate without the order of a competent Magistrate
According to scheme of the Code investigation is preliminary to a case being put up for trial for a cognizable offence
Investigation starts on an information relating to commission of an offence given to an officer in charge of Police Station and recorded under Section 154 of the Code
Investigation consists generally of various steps namely proceeding to the spot ascertainment of facts and circumstances of the case discovery and arrest of suspected offender collection of evidence relating to the commission of the offence which may consist of examination of various persons including the accused and the reduction of the statement into writing such as places and seizure of things and formation of opinion as to whether on material collected there is a case to place the accused before the Magistrate for trial and filing of the charge sheet under Section 173 of the Criminal Procedure Code
After the investigation is completed and a chargesheet is filed under Section 173 of the Criminal Procedure Code the question of taking cognizance arises
Section 190 of the Criminal Procedure Code lays down conditions necessary for initiation of proceedings
It provides for that any Presidency Magistrate District Magistrate or Sub Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence
a upon receiving a complaint of facts which constitute such offence b upon a report in writing of such facts made by any police officer and c upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed
One mode of taking cognizance by the Magistrate is upon a report in writing of such facts made by any police officer
This stage is reached when the police officer submits a report under Section 173
When the Police Officer upon investigation forms an opinion that there is sufficient evidence or reasonable ground he shall forward the case to the Magistrate empowered to take cognizance of the offence upon a Police report
Under Section 190 of the Criminal Procedure Code if the Magistrate to whom the report is sent by the Police Officer agrees with the opinion of the police officer he proceeds to take cognizance and issues process under Section 204
The judicial opinion is unanimous that when once Magistrate taking cognizance of an offence finds that there is sufficient ground for proceeding and issues 727 summons or a warrant as the case may be he takes cognizance and the trial begins and further proceedings will be undoubtedly before a criminal court
In Jamuna Singh and others vs Bhadai Sah Das Gupta J observed The Code does not contain any definition of the words institution of a case 
It is clear however and indeed not disputed that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein
 When once this stage is reached the requirement of Section 211 of the Indian Penal Code institutes or causes to be instituted any criminal proceeding is satisfied
The second part of Section 211 IPC refers to falsely charging a person with having committed an offence
A person falsely charging another of a cognizable offence before a police officer will come within the mischief of the second part of the Section
The crucial question that arises in this case is whether it can be said that when a person falsely charges another person of a cognizable offence before a Police Officer and when the Police Officer upon investigation finds that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the Magistrate under Section 169 and the Magistrate agrees with him an offence under Section 211 is committed in or in relation of any proceeding in any court 
It is settled law that when a Magistrate applies his mind under Chapter XVI that is on complaints he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for purpose of ordering investigation under Section 156 3 or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence vide R R Chari vs State of UP and in Gopal Das vs State of Assam
When the Magistrate receives a report under Section 169 of the Criminal Procedure Code that there is not sufficient evidence or reasonable ground for suspicion and agrees with it he may be doing so in exercise of his judicial function but the question is whether he is acting as a court
In Abhinandan Jha  Ors
vs Dinesh Mishra this Court has pointed out the difference between the report by the police filed under Section 170 of the Criminal Procedure Code which is referred to as a charge sheet and a report sent under Section 169 which is termed variously in different States as either referred charge  final report  or 728 summary
This court observed that when the police submitted a report that no case has been made out for sending up accused for trial it is not open to the Magistrate to direct the police officer to file a chargesheet
In such circumstances the Magistrate is not powerless as it is open to him to take cognizance of an offence on the report submitted by the Police under Section 1901c of the Criminal Procedure Code
Dealing with the position of the Magistrate when a report is submitted by the police that no case is made out for sending a case for trial the court observed that it is open to the magistrate to agree with the report and close the proceedings
Equally it will be open to the Magistrate if he takes a different view to give directions to the police under Section 1631 to make further investigations
After receiving a report from the police on further investigation if the Magistrate forms an opinion on the fact that it constitutes an offence he may take cognizance of an offence under Section 1901 c notwithstanding the opinion of the police expressed in final report
This court held in conclusion that there is no power expressly or impliedly conferred on the Magistrate under the Code to call upon the police to submit a charge sheet when they have sent a report under Section 169 of the Code that there is no case made out for sending the case for trial
The same view is expressed in the decision in Kamla Prasad Singh vs Hari Nath Singh and another
In R N Chatterji vs Havildar Kuer Singh A N Ray J as he then was followed the decision in Abhinandan Jha  Ors
vs Dinesh Mishra supra and held that the provisions of the Criminal Procedure Code do not empower the Magistrate to direct the police officer to submit a charge sheet but if he is of the opinion that the repot submitted by the police requires further investigation the Magistrate may order investigation under Section 163 of the Criminal Procedure Code
It was held that directing further enquiry is entirely different from asking police to submit a charge sheet
The only source open for the Magistrate if he is not satisfied with the police report under Section 169 is to take cognizance of an offence under Section 1901 c of the Criminal Procedure Code
It may be noted that in M L Sethi vs 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 1901 b
It is clear that when a Magistrate applies his mind to the contents of a complaint before him for the purpose of proceeding under Section 729 200 and the other provisions of the Code following it he is taking cognizance of an offence as held by five judges Bench decision of this Court in Mowu vs The Superintendent Special Jail Nowgong Assam and Others
The position regarding the case in which Magistrate accepts a report under Section 169 Criminal Procedure Code is different
On an analysis of the various sections it appears that a report under Section 169 of the Cr P C and the magistrate agreeing with it are proceedings under Chapter XIV which relates to information to the police and their power to investigate
The Chapter provides for supervision by the Magistrates of the investigation by the police
It has been laid down that Magistrate has no option except to agree with the report of the Police Officer unless he proceeds to take cognizance of the offence under Section 1901 c
Though the Magistrate in deciding whether to accept the report or not may be exercising his judicial mind it cannot be said that he is acting as a court
The Magistrate acting at this stage cannot be said to fulfil the positive requirements enumerated by Venkatarama Ayyar J in Shri Virinder Kumar Satvawadi vs The State of Punjab supra
To be classified as court it must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment and to decide in a judicial manner
It involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
As pointed out by Lord Sankey in Shell Co case supra though there may be some of the trappings of the court the magistrate at this stage cannot be termed as a court within the provisions of Section 1952 Cr
The magistrate may decide the question finally which may affect parties but that is not enough
Even when a tribunal bears witnesses on oath and decides rights of parties and a right of appeal is provided it may not as observed by Lord Sankey become a court
Most of requirements of a court are lacking when the Magistrate agrees with the report of the police officer under Section 169
At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate
The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage
It cannot be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him
730 Taking into account the scheme of the Criminal Procedure Code the function of the Magistrate in agreeing with a report under Section 169 can only be said to be in the course of investigation by the police
In Chapter XIV which relates to information to the police and their powers to investigate the Magistrate having jurisdiction over the area and empowered to take cognizance is given certain supervisory powers
Thus the Police Officer incharge of Police Station is required to refer the informant to the Magistrate when information as to a non cognizable offence is received by him
The Police Officer shall not investigate a non cognizable case without the orders of the Magistrate though the Police Officer is entitled to investigate a cognizable offence without the order of the Magistrate
The Magistrate under Section 190 is entitled to order an investigation into a cognizable offence
Section 157 Cr
PC 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
PC the Magistrate receiving a report under Section 157 may proceed or depute any magistrate subordinate to him to proceed to hold a preliminary inquiry into the case
Section 164 empowers Presidency Magistrate or any Magistrate of first class or any Magistrate of second class specially empowered by the State Government to record a statement or confession made to him in the course of an investigation under this Chapter
When a search is conducted by a Police Officer he is required to send copies of the record to the nearest Magistrate empowered to take cognizance
Section 167 of the Crl
PC requires that when investigation cannot be completed within 24 hours and when there are grounds of believing that the accusation or information is well founded the Officer incharge of the Police Station shall transmit to the nearest Magistrate the copy of the entries in the diary relating to the case and forward the accused to such Magistrate
The Magistrate to whom the accused is forwarded is empowered to authorise the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days
If the period is to exceed 15 days he is required to forward the accused to the Magistrate having jurisdiction
When an investigation is completed and when the Police Officer is of the opinion that there is sufficient evidence he shall forward the accused to the Magistrate along with his report
The final report of the Police Officer is to be submitted under Section 173
It may be noticed that Section 169 does not require the Police Officer to send a report as he is required under Section 170 when he is of the opinion that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to the Magistrate
The only precaution he has to take is to take steps to ensure the appearance of 731 the accused in the event of the Magistrate empowered to take cognizance wants his presence
A perusal of the various Sections under Chapter XIV shows that the Magistrate is associated with the investigation by the Police in a supervisory capacity
It has been laid down that when the Magistrate applies his mind for ordering an investigation under Section 1563 of the Cr
PC or for issue of a search warrant for the purpose of investigation he cannot be said to have taken cognizance of the offence
The Magistrate during this stage functions as a Magistrate during investigation
As the trial has yet to commence it cannot be said that he is acting as a court
Before leaving this aspect of the case I would refer to some of the decisions which were cited before us on this point
Strong reliance was placed by the learned counsel for the appellant on a decision in J D Boywalla vs 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 IPC 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
PC and that no court shall take cognizance of the offence punishable under Section 211 of the IPC when such offence is alleged to have been committed in or in relation to any proceeding to a court except on a complaint in writing of such court
John Beaumont Chief Justice held that in doing what he had done the Magistrate had taken cognizance of the case and therefore under Section 195b Cr
PC it was the Magistrate alone who could lodge a complaint
Two reasons were given by the Chief Justice
The second ground with which we are concerned at the moment deals as to the capacity in which Magistrate acted when he accepted the police report under Section 169 and discharged the accused
The Chief Justice expressed that after considering the report if the Magistrate thinks that there is no sufficient ground of proceeding he may discharge the accused and though the Code does not expressly provide there can be no doubt that when the Magistrate can act upon the report of the 732 police officer and discharge an accused person without further inquiry only by acting in his judicial capacity which should be open to review by the High Court
The learned Chief Justice proceeded on the basis that before a magistrate passed orders on the report of the police under Section 169 he should take cognizance of the offence
The Chief Justice thus took the view that 1 the Magistrate before discharging the accused in pursuance of a police report under Section 169 takes cognizance and 2 acts in his judicial capacity
While there could be no doubt that the magistrate is acting judicially I am unable to hold that before a magistrate discharges an accused agreeing with the report of the police under Section 169 Cr
PC he takes cognizance
This Court has held that the stage of laking cognizance arises only when he acts under Section 1901 b
Further this Court has taken the view that if the magistrate does not agree with a police report under Section 169 Cr
PC he can only proceed under Section 1901c
The facts of the case were the accused was arrested and later after the order of discharge the bail bond was cancelled
The circumstances of the arrest of the accused his being released on bail during investigation and his discharge after the police report were the reasons for the learned Chief Justice coming to the conclusion that the Magistrate was acting in a judicial capacity
The learned Judge observed indeed it is a novelty to me to hear it suggested that there is any authority which can make an administrative order discharging the arrested person from judicial capacity
But as he has pointed out acting in a judicial capacity alone is not enough
The Supreme Court in M L Sethi s case supra expressed its dissent from the view taken in Ghulam Rasul vs 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 IPC 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 1951 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 false 733 statement made in an investigation by the police with the intention that there shall in consequence of this be a trial in the Criminal Court
The facts of the case show that a report under Section 169 Criminal Procedure Code was submitted by the police for cancellation and the Magistrate dropped further proceedings
The Supreme Court referring to the view of the High Court observed He appears to have held the view that the Magistrate having passed an order of cancellation it was necessary that the complaint should be filed by the Magistrate because section 1951b had become inapplicable
If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding following the police investigation was contemplated we consider that his decision cannot be accepted as correct
This decision makes it clear that even though the Magistrate passed an order of cancellation on the report by the police under section 169 if the Magistrate has not taken any proceeding a complaint by the Magistrate is not necessary
The decision of the Supreme Court covers the facts of the present case so far as the discharge of the accused on a police report under section 169 Criminal Procedure Code is concerned
Referring to the Bombay decision the Supreme Court observed that the decision of the Bombay High Court in J D Roywalla vs Sorab Rustomji Engineer supra is also inapplicable because in that case also orders were passed by a Magistrate on the final report made by the police after investigation of the facts in the report in respect of which complaint under section 211 IPC was filed
In Sethi s case supra at the stage when the complaint was filed by the respondent under Section 211 IPC the police were enquiring into the appellant s report
When there is no proceeding pending before any court at the time when the applicability of section 1951 b is to be determined a complaint by the court is not necessary
The decision in Bombay case is therefore not applicable to the facts in Sethi s case as in the Bombay case orders were passed by the magistrate on the final report of the police
There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under Section 169 the Magistrate does not take any further action
The Bombay Saurashtra and Andhra Pradesh High Courts in 1946 Bombay 711 1952 Saurashtra 6768 and 287 have held that a Magistrate passing an order on a final report of police under Section 173 referring the case as false should be deemed to be a Court passing a judicial order disposing of the information to the police and 734 that in such a case the complaint of the Magistrate is necessary for the prosecution of the informant under Section 211 of the IPC The Madras Calcutta and Allahabad High Courts in AIR 1934 Madras 175 AIR 1948 Allahabad 184 Full Bench and AIR 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 arrest and release on bail of the accused Satya Narayan Pathak in consequence of the complaint given by the appellant
The police after taking cognizance of the complaint by Kamlapati Trivedi the appellant in this case took cognizance under Sections 147 448 and 379 IPC registered a case and issued a warrant of arrest against Satya Narayan Pathak and five others
They all surrendered in court on 6 5 1970 and were released on bail on a bond of Rs 200 each
They attended court on 21 5 1970 and 21 7 1970 when the police report was expected to be filed
The High Court found that there was a police investigation and during investigation Satya Narayan Pathak surrendered before the Magistrate who released him on bail and police submitted a final report and the Magistrate discharged him from his bail bond
On this evidence the High Court came to the conclusion that the proceedings before the court become a criminal proceeding only when the court takes cognizance and not before
On these facts the question arises whether the proceedings when the accused were released on bail and later after the receipt of the report from the police they were discharged would be in or in relation to a court
It was submitted that when in pursuance of a complaint the accused was arrested and remand and bail proceedings were subsequently taken before a Magistrate in connection with the report to the police they were proceedings in court and a complaint by the court was necessary
In support of the proposition a decision in Badri vs State was relied upon
In that case the Allahabad High Court held that an offence under section 211 Indian Penal Code alleged to have been committed by the appellant by making a false report against the complainant and others to the police was an offence in relation to the remand proceedings and the bail proceedings because those proceedings were a direct consequence of the making of the report and the subsequent arrest and therefore the case is governed by section 1951b of Code of 735 Criminal Procedure
The Supreme Court in Sethi s case supra at page 538 did not consider it necessary to express any opinion whether remand and bail proceedings before the Magistrate can be held to be proceedings in a court nor did they consider the question whether the charge of making a false report could be rightly held to be in relation to these proceedings
The position therefore is the question whether remand and bail proceedings before the Magistrate in pursuance of information given to the police of a cognizable offence are proceedings in or in relation to a court is left open
To determine whether the remand or bail proceedings are proceedings in a court it is useful to refer again to Chapter XIV of the Criminal Procedure Code
On a complaint by an informant relating to a commission of a cognizable offence the investigation starts
The information may not be against any person
When an investigation cannot be completed in 24 hours after the arrest of the accused and when the officer is of the view that there are grounds for believing that the accusation or information is well founded the officer is required to transmit to the nearest Magistrate a copy of the entries in the diary and to forward the accused to the Magistrate
When the accused is produced the Magistrate is required to act under Section 1672 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 whole
If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary he may order the accused to be forwarded to a Magistrate having jurisdiction
We have seen that in investigation by the police the Magistrate is associated in a supervisory capacity
The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power
Even the Magistrate who has jurisdiction to try the accused when acting under the Section is not acting as a court for the words used are the Magistrate having jurisdiction
The trial commences only after the offence has been taken cognizance of
The proceedings under Section 167 is during investigation
But it has to be noted that when the bail and remand proceedings are before the Magistrate he has to act judicially
If the accused applies for bail the Magistrate has to act judicially and take into account the facts of the case before he decides to release the accused on bail or refuse bail
Chapter XXXIII Cr
P C deals with bail
Section 496 provides as to when bail may be taken of non bailable offences
The provisions of Sections 496 and 497 speak of an accused person in custody charged with a non bailable offence 736 being produced before court at any stage of the proceedings
The Section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a court while in the custody of the police officer
According to the wording of Section the bail proceedings would be before a court even though the accused is produced while in custody of a police officer
Even though the word court  is used in Sections 496 and 497 we have to consider whether proceedings can be said to be taken before a court as defined in Section 1952 of Cr P C
In deciding the question we have to bear in mind the restricted meaning given to the word in the observations of Lord Sankey in Shell Company s case reported in Shell Co of Australia Ltd vs Federal Commissioner of Taxation supra and the tests laid down by Venkatarama Ayyar J in Shri Virinder Kumar Satyawadi vs The State of Punjab and Hidayatullah J in Smt
Ujjam Bai vs State of Uttar Pradesh supra
Though there may be some trappings of a court and the section itself mentions the word court  I feel that the requirements for being a court for the purpose of Section 1952 have not been satisfied
The intention of the legislature in prescribing a bar when an offence under Chapter XI of IPC 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 restricted meaning given to the word court 
The second question is whether the charge of making of the false report could be rightly held to be in relation to proceedings in court
When an information is given of a commission of a cognizable offence the police register a case and start investigation
For facilitating the investigation provision for remand is provided for
If the investigation is not completed within 24 hours the police may ask for further remand and the court may grant according to provisions of section 167 of 737 Criminal Procedure Code
At this stage though the remand and bail proceedings arise as a consequence of complaint given it cannot be said that it is the direct result of a false report to a court for no one might have been mentioned in the complaint as a suspect
Further it will be seen that the complainant is not entitled to appear in court and oppose grant of bail
The court dealing with the remand or bail proceedings cannot be said to fulfil the conditions laid down by Venkatarama Ayyar as the parties are not entitled as a matter of right to be heard in support of their claim and adduce evidence in proof of it
The Magistrate dealing with remand proceedings or a bail petition does not hear the complainant
He acts on the material that is placed before him by the police during investigation
The complainant has no opportunity of substantiating or presenting his case before the Magistrate at this stage
If the action of the Magistrate in agreeing with the report under section 169 Cr PC and the proceedings taken during investigation by way of remand or bail are understood to be proceedings in or in relation to court a complaint may be preferred by the Magistrate without giving an opportunity to the complainant to satisfy the Magistrate about the truth of his case
In this connection it is useful to refer to section 476 of the Cr P C
The section provides that when any Civil Revenue or Criminal Court is whether on application made to it in this behalf or otherwise of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195 sub section 1 clause b or clause c which appears to have been committed in or in relation to a proceeding in that Court such Court may after such preliminary inquiry if any as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court and shall forward the same to a Magistrate of the first class having jurisdiction
Before making a complaint a preliminary inquiry is contemplated
Normally it would mean that the person against whom a complaint is preferred has an opportunity to show why a complaint should not be preferred against him
These stages are not reached in a case when the Magistrate has still to take cognizance of an offence
The restricted meaning given to the Code in section 1952 Cr
PC read along with the conditions to be specified before a complaint is preferred by the court inclines me to hold that the proceedings before a Magistrate in which he agrees with the report by the police under section 169 Criminal Procedure Code and the proceedings in remand or bail applications during investigation will not amount to proceedings in or in relation to court
738 In the result I agree with the High Court that there was no proceeding in or in relation to a court and therefore section 1951b of Criminal Procedure Code is not attracted
The appeal is dismissed
KOSHAL J I have had the advantage of going through the judgment prepared by my learned brother Kailasam J Having given it my best consideration I regret that I have to differ with him
The facts giving rise to this appeal lie in a narrow compass and may be stated in brief
The appellant before us is one Kamlapati Trivedi hereinafter called Trivedi on whose complaint a case was registered under sections 147 448 and 379 of the Indian Penal Code at the Bally Police Station on the 18th April 1970 against six persons including one Satyanarayan Pathak called Pathak hereinafter
Warrants were issued for the arrest of the accused all of whom surrendered on the 6th of May 1970 in the Court of the Sub Divisional Judicial Magistrate Howrah referred to later herein as SDJM who who was the magistrate having jurisdiction and who passed an order releasing them on bail
The police held an investigation culminating in a report dated the 25th of July 1970 which was submitted to the SDJM under section 173 of the Code of Criminal Procedure 1898 the Code for short
The contents of the report made out the complaint to be false and included a prayer that the accused may be released from the charge
On the 31st of July 1970 the SDJM agreeing with the report passed an order discharging the accused
On the 20th of October 1970 Pathak filed a complaint before the SDJM accusing Trivedi of the commission of offences under sections 211 and 182 of the Indian Penal Code by reason of the latter having lodged with the police the false complaint dated the 18th of April 1970
Trivedi appeared in the Court of the SDJM on the 16th of November 1970 in response to a summons issued by the latter only in respect of an offence under section 211 of the Indian Penal Code and was allowed a fortnight to furnish security while the case itself was adjourned to the 10th of December 1970
It was then that Trivedi presented a petition dated the 23rd December 1970 to the High Court at Calcutta praying that the proceedings pending against him before the SDJM be quashed inasmuch as the latter was debarred from taking cognizance of the offence under section 211 of the Indian Penal Code in the absence of a complaint in writing of the SDJM himself in view of the provisions of clause b of sub section 1 of section 195 of the Code
Sub sections 1 and 2 of that section may be reproduced here for ready reference 739 195
1 No Court shall take cognizance a of any offence punishable under sections 172 to 188 of the Indian Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate b of any offence punishable under any of the following sections of the same Code namely sections 193 194 195 196 199 200 205 206 207 208 209 210 211 and 228 when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is sub ordinate or c of any offence described in section 463 or punishable under section 471 section 475 or section 476 of the same Code when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court or of some other Court to which such Court is subordinate
2 In clauses b and c of sub section 1 the term Court includes a Civil Revenue or Criminal Court but does not include a Registrar or sub Registrar under the Indian Registration Act 1977
 It was argued before the High Court that part of the proceedings which started with the registration of the case by the police on the 18th of April 1970 at the instance of Trivedi and culminated in the order dated the 31st of July 1970 discharging Pathak and his five co accused constituted proceedings before a Court that the offence under section 211 of the Indian Penal Code attributed to Trivedi was committed in or in any case in relation to such part and therefore the case against Trivedi fell within the ambit of clause b above extracted
The argument did not find favour with the High Court and the learned Single Judge before whom it was made rejected it with the following observations The police submitted a final report and so the Magistrate discharged him from his bail bond but there was no criminal proceeding before the Court against Satyanarayan
The proceeding before the Court becomes a criminal proceeding only when a Court takes cognizance and not before
Whatever the view of the other High Courts 740 may be the consistent view of this High Court is that so long as cognizance is not taken it cannot be said that there was a proceeding pending in the Court in respect of that offence and since no proceeding was pending before the Court section 195 1b of the Code is not attracted
 It is against the order of the High Court which is dated the 18th of August 1971 that Trivedi has instituted this appeal by special leave
Before us the argument which was put forward on behalf of Trivedi for the consideration of the High Court has been repeated and it has been urged strenuously by his learned counsel that in so far as the SDJM passed an order on the 6th of May 1970 releasing him on bail and then another on the 31st of July 1970 discharging him the SDJM acted judicially and therefore as a Court that it cannot but be held that these orders were passed in proceedings in relation to which the offence under section 211 of the Indian Penal Code was alleged to have been committed and that consequently the SDJM had no jurisdiction to take cognizance of that offence
The points requiring determination therefore are a Whether the SDJM acted as a Court when he passed the orders dated the 6th of May 1970 and the 31st of July 1970 or any of them b If the answer to question a is in the affirmative whether the offence under section 211 of the Indian Penal Code attributed to Trivedi could be regarded as having been committed in relation to the proceedings culminating in either or both of the said orders 5
In finding an answer to question a I attach quite some importance to the provision of sections 6 496 and 497 of the Code
These sections are extracted below 6
Besides the High Court and the Courts constituted under any law other than this Code for the time being in force there shall be five classes of Criminal Courts in India namely I Courts of Session II
Presidency Magistrates III
Magistrates of the first class IV
Magistrates of the second class V Magistrates of the third class 741 496
When any person other than a person accused of a non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail such person shall be released on bail Provided that such officer or Court if he or it thinks fit may instead of taking bail from such person discharge him on his executing a bond without sureties for his appearance as hereinafter provided  Provided further that nothing in this section shall be deemed to affect the provisions of section 107 sub section 4 or section 117 sub section 3 497 1 When any person accused of or suspected of the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail
2 If it appears to such officer or Court at any stage of the investigation inquiry or trial as the case may be that there are not reasonable grounds for believing that the accused has committed non bailable offence but that there are sufficient grounds for further inquiry into his guilt the accused shall pending such inquiry be released on bail or at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided
3 An officer or a Court releasing any person on bail under sub section 1 or sub section 2 shall record in writing his or its reason for so doing
3A If in any case triable by a Magistrate the trial of a person accused of any non bailable offence is not concluded within a period of sixty days from the first date fixed 742 for taking evidence in the case such person shall if he is in custody during the whole of the said period be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing the Magistrate otherwise directs 4 If at any time after the conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence it shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered 5 A High Court or Court of Sessions and in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody
 Magistrates are specifically labelled as Courts by the statutory provisions of section 6 and therefore have to be regarded as such
It is no doubt true that the Code assigns to a Magistrate various functions which do not fall within the sphere of judicial duties and are on the other hand functions of an executive nature such as the exercise of supervisory jurisdiction in relation to investigation carried out by the police or work done on the administrative side and it may plausibly be argued that in the discharge of such functions a Magistrate does not act as a Court
But then in my opinion a Magistrate cannot but be regarded as a Court when he acts judicially
This follows from the provisions of section 6 itself
The Code does not contain any provision to the effect that no functions performed by a Magistrate in relation to criminal proceedings whether handled by him or dealt with by the police would be regarded as functions performed by a Court unless they are posterior in point of time to the stage when he acts under section 190 of the Code
On the contrary sections 496 and 497 which embrace bail matters specifically describe a Magistrate while dealing therewith as a Court and these sections operate fully at all stages of a case including that when the investigation has just started
There is nothing in the context in which the word Court  is used in these two sections and section 195 which would provide an indication that it has been used in two different senses therein and in such a situation the legislature must be deemed to have used it in one and the same sense wherever it occurs in the Code
While deciding the question of bail therefore a Magistrate must be held to be 743 acting as a Court and not in any other capacity irrespective of the stage which the case has reached by then that is whether it is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate
It at once follows that the taking of cognizance of any offence by a Magistrate under section 190 of the Code is not a condition precedent for him to be regarded as a Court
Nor do I feel that the opinions expressed by Halsbury and Lord Sankey lay down any different principle
Those opinions appear to me to cover only cases of tribunals which perform quasi judicial functions but are not statutorily recognised as Court 
At page 342 of Volume 9 of Halsbury s Laws of England third edition appears the following passage in Para 809  Originally the term court meant among other meanings the Sovereign s palace it has acquired the meaning of the place where justice is administered and further has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign
All tribunals however are not courts in the sense in which the term is here employed namely to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law and not merely by reason of voluntary submission to their jurisdiction
Thus arbitrators committees of clubs and the like although they may be tribunals exercising judicial functions are not courts in this sense of that term
On the other hand a tribunal may be a court in the strict sense of the term although the chief part of its duties is not judicial
Parliament is a court its duties are mainly deliberative and legislative  the judicial duties are only part of its functions
A coroner s court is a true court although its essential function is investigation
 In para 810 the learned author proceeds to lay down the criteria which determine when a tribunal would be regarded as a Court
In his opinion the elements to be considered are  1 the requirement for a public hearing subject to a power to exclude the public in a proper case and 2 a provision that a member of the tribunal shall not take part in any decision in which he is personally interested or unless he has been present throughout the proceedings
744 The learned author then quotes Lord Sankey s observations in Shell Co of Australia Ltd vs Federal Commissioner of Taxation and then gives numerous examples of tribunals which are not regarded as Courts
One common feature of such tribunals is that they are not described as Courts by statute and are charged with the performance of administrative or executive functions as distinguished from judicial functions
Paragraph 812 on page 344 of the same Volume deals with the subject of creation of Courts and lays down  Courts are created by the authority of the Sovereign as the fountain of justice
This authority is exercised either by statute charter letters patent or Order in Council
In some cases a court is held by prescription as having existed from time immemorial with the implication that there was at some time a grant of the Court by the Sovereign which has been lost
An Act of Parliament is necessary to create a court which does not proceed according to the common law
 Reference may usefully be made to Section 6 of the same Chapter in which the above paragraphs occur
That Section is headed Magistrates  Courts
The relevant part of paragraph 1041 with which the Section begins is to the following effect A magistrate s court consists of a justice or justices of the peace acting under any enactment or by virtue of his or their commission or under common law otherwise than as a court or committee of quarter sessions or a purely administrative tribunal or of a stipendiary magistrate The combined effect of the various paragraphs forming part of the treatise and noticed above would be that a Court may be created by a statute and that when such a Court performs judicial functions it will be deemed to act as a Court and further that Magistrates  Courts are regarded as such unless performing executive or administrative functions
That is how the position stands in England and there is nothing in the case of Shell Company of Australia Ltd vs Federal Commissioner of Taxation supra which runs to the contrary
It may be noted that in that case the question for decision was as to whether the Board of Review which had been constituted under the Australian Income Tax Assessment Act to review the decisions of the Commissioner of Taxation was or was not a Court and it was in that context that Lord Sankey expressed his opinion
Obviously he was 745 not dealing with the functions of a tribunal which had been statutorily labelled as a Court
What I have said of Lord Sankey s opinion is true of the decisions of this Court in Virinder Kumar Satyawadi vs The State of Punjab and Smt
Ujjam Bai vs State of Uttar Pradesh
In the former the question for decision was as to whether a returning officer discharging functions under the Representation of the People Act 1951 was a Court and in answering the same the Court referred to the case of Shell Company of Australia supra and other English and Australian authorities and then observed  It is unnecessary to traverse the same ground once again
It may be stated broadly that distinguishes a court from a quasi judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court
 In Ujjam Bai s case supra this Court was resolving a question as to whether an officer of the income tax department was a Court and replied in the negative broadly for the reason that even though taxing authorities follow a pattern of action which is considered judicial they are not converted into Courts of civil judicature and that their actions are executive in nature
Neither of these cases deals with an authority on which the status of a Court is conferred by statute nor with one forming part of the judiciary such as a Magistrate in whose case the opinion of this Court would surely have been different as is apparent from the judgment of Hidayatullah J in Ujjam Bai s case supra which quotes the following passage from Gullapalli Nageswara vs State of Andhra Pradesh 746 The concept of a quasi judicial act implies that the act is not wholly judicial it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive power and then proceeds  The taxing departments are instrumentalities of the State
They are not a part of the Legislature nor are they a part of the judiciary
Their functions are the assessment and collection of taxes and in the process of assessing taxes they have to follow a pattern of action which is considered judicial
They are not thereby converted into Courts of civil judicature
They still remain the instrumentalities of the State and are within the definition of State  in article 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 functioning as a Court
In this connection a reference may also be made to section 19 of the Indian Penal Code coupled with illustration b appended thereto and section 20 thereof  Section 19  The word Judge denotes not only every person who is officially designated as a Judge but also every person
Who is empowered by law to give in any legal proceeding civil or criminal a definitive judgment or a judgment which if not appealed against would be definitive or a judgment which if confirmed by some other authority would be definitive or who is one of a body of persons which body of persons is empowered by law to give such a judgment 747 Illustration b  A Magistrate exercising jurisdiction in respect of a charge on which he has power to sentence to fine or imprisonment with or without appeal is a Judge
 Section 20  The words Court of Justice denote a Judge who is empowered by law to act judicially alone or a body of Judges which is empowered by law to act judicially as a body when such Judge or body of Judges is acting judicially
 Although we are not here concerned with the terms Judge and Court of Justice properly so called the provisions above extracted do give a definite indication of the attributes of a Court as used in criminal law generally
It may be noted that the Code and the Indian Penal Code are the main statutes operating in India in relation to the dispensation of criminal justice and may in a sense be regarded as supplementary to each other the Code forming the procedural link of the same chain of which the Indian Penal Code constitutes the link of substantive law
This relation between the two enactments is further strengthened by the provisions contained in sub section 2 of section 4 the definition clause of the Code which runs thus  4 2  Words which refer to acts done extend also to illegal omissions and all words and expressions used herein and defined in the Indian Penal Code and not hereinabove defined shall be deemed to have the meanings respectively attributed to them by the Code
 It is no doubt true that the expression Court of Justice does not appear to have been used in the Code although the expression Judge does find a place in section 197 thereof but then there is no escape from the conclusion that when a Judge including a Magistrate who is empowered to act judicially and does so act constitutes not merely a Court but a Court of Justice
Now I proceed to examine the relevant provisions contained in Chapter XIV of the Code which carries the caption INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE
It may be stated at once that although the Chapter is headed as stated it is not confined to matters which are strictly concerned with the investigation stage but also deals with situations which arise after the investigation has been finalized
Reference may be made in this behalf to subsection 2 of section 172 of the Code reads thus  748 Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court and may use such diaries not as evidence in the case but to aid it in such inquiry or trial
Neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court but if they are used by the police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such police officer the provisions of the  section 161 or section 145 as the case may be shall apply
 The sub section clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but undoubtedly as a Court
The caption of the Chapter therefore is not decisive of the question as to whether a particular provision contained therein is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a Court
The contents of sections 169 170 and 173 of the Code may now be scrutinised
They are re produced below  169
If upon an investigation under this Chapter it appears to the officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate such officer shall if such person is in custody release him on his executing a bond with or without sureties as such officer may direct to appear if and when so required before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial 170
1 If upon an investigation under this Chapter it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial or if the offence is bailable and the accused is able to give security shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed 749 2 When the officer in charge of a police station forwards an accused person to a Magistrate or take security for his appearance before such Magistrate under this section he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him and shall require the complainant if any and so many of the persons who appear to such officer to be acquainted with the circumstances of the case as he may think necessary to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence as the case may be in the matter of the charge against the accused 3 If the Court of the District Magistrate or Sub divisional Magistrate is mentioned in the bond such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial provided reasonable notice of such reference is given to such complainant or persons 173
1  Every investigation under this Chapter shall be completed without unnecessary delay and as soon as it is completed the officer in charge of the police station shall a forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the State Government setting forth the names of the parties the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused if arrested has been forwarded in custody or has been released on his bond and if so whether with or without sureties and b communicate in such manner as may be prescribed by the State Government the action taken by him to the person if any by whom the information relating to the commission of the offence was first given 2 Where a superior officer of police has been appointed under section 158 the report shall in any case in which the State Government by general or special order so directs be submitted through that officer and he may pending the orders of the Magistrate direct the officer in charge of the police station to make further investigation 3 Whenever it appears from a report forwarded under this section that the accused has been released on his bond 750 the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit 4 After forwarding a report under this section the officer in charge of the police station shall before the commencement of the inquiry or trial furnish or cause to be furnished to the accused free of cost a copy of the report forwarded under sub section 1 and of the first information report recorded under section 154 and all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions if any recorded under section 164 and the statements recorded under sub section 3 of section 161 of all the persons whom the prosecution proposes to examine as its witnesses
5 Notwithstanding anything contained in sub section 4 if the police officer is of opinion that any part of any statement recorded under sub section 3 of section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests he shall exclude such part from the copy of the statement furnished to the accused and in such a case he shall make a report to the Magistrate stating his reasons for excluding such part  Provided that at the commencement of the inquiry or trial the Magistrate shall after perusing the part so excluded and considering the report of the police officer pass such orders as he thinks fit and if he so directs a copy of the part so excluded or such portion thereof as he thinks proper shall be furnished to the accused
 Section 169 and 170 do not talk of the submission of any report by the police to the Magistrate although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation 1 that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate section 169 2 that there is sufficient evidence or reasonable ground as aforesaid section 170
In either case the final report of the police is to be submitted to the Magistrate under sub section 1 of section 173
Sub section 3 of that section further provides that in the case of a report by the police that the accused has been released on his bond which is the situation envisaged by section 169 the 751 Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit
Now what are the courses open to the Magistrate in such a situation He may as held by this Court in Abhinandan Jha  Others vs Dinesh Mishra
1 agree with the report of the police and file the proceedings or 2 not agree with the police report and a order further investigation or b hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognizance of the offence complained of
The appropriate course has to be decided upon after a consideration of the report and the application of the mind of the Magistrate to the contents thereof
But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity
In my opinion the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2 a
The order passed by the Magistrate in each of the other two courses that is 1 and 2b 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
The reasons which have weighed with me in coming to the conclusion arrived at in the last paragraph are equally applicable to the consideration of the question whether an order of bail passed by a Magistrate calls for the performance by him of his judicial functions
Such an order also decides the rights of the State and the accused and is made by the Magistrate after the application of his mind and therefore in the discharge of his judicial duties which factor constitutes it an act of a Court
For a tribunal to be acting as a Court it is not necessary that the parties must have a right of hearing or adducing evidence at every stage of the proceedings before it
This is specially true of Courts constituted as such by the legislature
Reference may here be made to interlocutory orders issuing temporary injunctions or staying 752 proceedings in a subordinate Court or dispossession of a party by Civil Courts at the instance of a plaintiff or appellant and in the absence of the opposite party which comes into the picture later on after it is served with a notice
And even subsequent to the appearance of the party adversely affected the existence of a prima facie case would till the scales against it so that the order earlier passed in favour of the other party is confirmed till the conclusion of the case on merits even though the case may finally be decided otherwise and the interlocutory order found to be unjust and then vacated
And yet it can hardly be argued that the presiding officer of the Court does not act as a Court when passing such an order
Really the right to adduce evidence and be heard is to be taken into consideration as being available at one stage of the proceedings or the other
Thus in the case of an order passed by a Magistrate under sub section 3 of section 173 of the Code in agreement with the police report does not call for any hearing or the production of any evidence on the part of the accused as it goes in his favour
If the Magistrate on the other hand disagrees with the report submitted by the police and takes cognizance of the offence the accused comes into the picture and thereafter shall have the right to be heard and to adduce evidence in support of his innocence
Viewed in this context all orders passed by a Magistrate acting judicially such as orders of bail and those passed under subsection 3 of section 173 of the Code discharging an accused or orders taking cognizance of the offence complained of are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial or earlier according to the exigencies of the situation obtaining at a particular stage and which involves if need be the adducing of evidence and the decision of the Magistrate on an appreciation thereof
They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part
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 vs Sorab Rustomji Engineer Beaumont C J speaking for himself and Macklin J emphatically held that a Magistrate while passing a order releasing an accused person on bail or discharging him in pursuance of a report submitted by the police to the effect that the evidence was insufficient to sustain the charge acts judicially and therefore as a Court within the meaning of that term as used in clause b of sub section 1 of section 195 of the Code
That decision was followed by a Division Bench consis 753 ting of Shah C J and Baxi J in State vs 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 CJ and Mishra J in Badri vs State
These three decisions in my opinion lay down the correct law on the point and the view expressed to the country by the Madras Calcutta and Patna High Court as also by a Full Bench of the Allahabad High Court in Hanwant vs Emperor and by a Full Bench of the Lahore High Court in Emperor vs Hyat Fateh Din merits rejection for the reasons stated above
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 vs 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 section 211 of the Indian Penal Code by falsely charging the respondent with having committed an offence
The Magistrate took cognizance of the respondent s complaint under section 190 of the Code
At that stage there were no proceedings in any Court nor any order by any Magistrate for arrest remand or bail of the respondent in connection with the appellant s report to the police
Later however the police arrested the respondent in connection with the appellant s report and filed a charge sheet against him but the case ended in an order of discharge
Thereafter the appellant raised an objection in the Court of the Magistrate to the effect that cognizance of the offence under section 211 of the Indian Penal Code could not be taken in view of the provisions of clause b of sub section 1 of section 195 of the Code
The Magistrate rejected the contention and the order was confirmed by the Sessions Court and the High Court
While dismissing the appeal this Court held that the complaint filed by the respondent was competent and that clause b aforesaid did not stand in the way of the Magistrate taking cognizance in as much as there had been no proceedings of any kind whatsoever before the Magistrate in relation to the report lodged by the appellant with the police till the complaint was 754 filed by the respondent
Reliance was placed on behalf of the appellant in that case on Badri vs State supra and J D Boywalla vs Sorab Rustomji Engineer supra but the points decided in those cases were held not to arise in the case then before the Court which made the following observations in relation thereto  In the case of Badri vs State where an offence under section 211 IPC 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 IPC was taken cognizance of by the Judicial Magistrate at Chandigarh at a stage when there had been no proceedings for arrest remand or bail of the respondent and the case was still entirely in the hands of the police
There was in fact no order by any Magistrate in the proceedings being taken by the police on the report lodged by the appellant up to the stage when the question of applying the provisions of section 195 1b Cr
PC arose
These two cases are also therefore of no assistance to the appellant
On the same ground the decision of the Bombay High Court in J D Boywalla vs Sorab Rustomhi Engineer is also inapplicable because in that case also orders were passed by a Magistrate on the final report made by the police after investigation of the facts in the report in respect of which the complaint under section 211 IPC was sought to be filed 13
In another part of the judgment deciding M L Sethi vs R P Kapur supra this Court disagreed with the view expressed in Ghulam 755 Rasul vs Emperor wherein Blacker J made the following observation  I am clear that the words in this sub section in relation to any proceedings in any Court apply to the case of a false report or a false statement made an investigation by the police with the intention that there shall in consequence of this be a trial in the criminal Court and I find support for this view in the case reported as 1929 Sind 132 1
This view of Blacker J was repelled by this Court thus  The decision in the words in which the learned Judge expressed himself appears to support the argument of learned counsel for the appellant in the present case but we think that very likely in that case the learned Judge was influenced by the circumstances that the case had been reported by the police to the Magistrate for cancellation
He appears to have held the view that the Magistrate having passed an order of cancellation it was necessary that the complaint should be filed by the Magistrate because section 195 1 b had become applicable
If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police it was still essential that a complaint should be filed by the Magistrate simply because a subsequent proceeding following the police investigation was contemplated we consider that his decision cannot be accepted as correct
 These observations cannot be held to mean that if an order of cancellation of a case has actually been passed by a Magistrate in agreement with the report of the police to the effect that no sufficient evidence was available against the accused such order could not be regarded as a judicial proceeding and the Magistrate passing it could not be given the status of a Court
This is apparent from the last sentence of the passage just above extracted which indicates that all that was meant was that if Blacker J meant to say that even though no proceeding at all had been taken by the Magistrate clause b of sub section 1 of section 195 of the Code would be attracted merely for the reason that the police had held an investigation which would at a later point of time result in any proceedings before the Magistrate this Court could not agree with him
Another fact which may be noted in this connection is that judgment in Ghulam Rasul vs Emperor supra does not state in unmistakable terms that any order 756 of cancellation of the case was passed by the concerned Magistrate and all that is mentioned is that the police had reported the case for cancellation which may well mean that really no order of cancellation had in fact been made by the Magistrate
As the order releasing Trivedi on bail and the one ultimately discharging him of the offence complained of amount to proceedings before a Court all that remains to be seen is whether the offence under section 211 of the Indian Penal Code which is the subject matter of the complaint against Trivedi can be said to have been committed in relation to those proceedings
Both the orders resulted directly from the information lodged by Trivedi with the police against Pathak and in this situation there is no getting out of the conclusion that the said offence must be regarded as one committed in relation to those proceedings
This requirement of clause b aforementioned is also therefore fully satisfied
For the reasons stated I hold that the complaint against Trivedi is in respect of an offence alleged to have been committed in relation to a proceeding in Court and that in taking cognizance of it the SDJM acted in contravention of the bar contained in the said clause b as there was no complaint in writing either of the SDJM or of a superior Court
In the result therefore I accept the appeal and setting aside the order of the High Court quash the proceedings taken by the SDJM against Trivedi
ORDER In accordance with the opinion of the majority the appeal is allowed the order of the High Court is set aside and the proceedings taken by the Sub Divisional Judicial Magistrate against the appellant Kamlapati Trivedi are quashed
NVK Appeal allowed


Summary:
Section 1951b of the Code of Criminal Procedure provides that no court shall take cognizance of any offence punishable under any of the sections enumerated therein one of which is section 211 if such offence is alleged to have been committed in or in relation to any proceedings in any court
The appellant filed a complaint with the police that the accused criminally trespassed assaulted and abused him in filthy language and committed theft of money and valuable documents of the school of which he was the secretary
After investigation the police found that there was no evidence against the accused and therefore the Magistrate discharged all the accused
One of the accused thereupon preferred a complaint under section 211 IPC alleging that the appellant had instituted criminal proceedings with the intent to cause injury to him and others knowing that there was no just or lawful ground and thereby caused pecuniary loss and agony to him
The appellant moved the High Court for quashing the proceedings before the Magistrate because in the absence of a complaint in writing of the Magistrate himself the Magistrate had no jurisdiction to take cognizance of the offence under s211 IPC in view of the provisions of section 195 1b of the Cr
The High Court refused to quash the proceedings
On further appeal it was contended that an order passed by a Magistrate on a report submitted by the police under section 173 Cr P C being a judicial order the bar of section 1951b would be attracted
Allowing the appeal  HELD Per Koshal J with whom Jaswant Singh J agreed 1
The complaint against the appellant was in respect of an offence alleged to have been committed in relation to a proceeding in court
In taking cognizance of it the Magistrate acted in contravention of the bar contained in section 1951b 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 section 190 is not a condition precedent for him to be regarded as a court
Magistrates are specifically labelled as courts by section 6 of the Code of Criminal Procedure and therefore have to be regarded as such
It is true that a Magistrate also performs functions which are of an executive nature and do not fall within 718 the sphere of judicial duties and it may plausibly be argued that in the discharge of those functions he does not act as a court
But then he cannot but be regarded as a court when he acts judicially
Sections 496 and 497 which make provision for bail matters describe a Magistrate while dealing with those matters as a court and these sections operate at all stages of a case including that when the investigation has just started
Neither in these sections nor in section 195 is there anything to show that the word court has been used in two different senses and therefore the legislature must be deemed to have used it in one sense wherever it occurs in the Code
743 B 742 D H 3
The well accepted position is that a court created by a statute when it performs judicial functions would be deemed to act as a court and Magistrates  courts are regarded as such unless they are performing executive or administrative functions
744 F G
Shell Co of Australia Ltd vs Federal Commissioner of Taxation PC and Halsbury s Laws of England 3rd Edn Vol
9 p 342 Virinder Kumar Satyawadi vs The State of Punjab  Smt
Ujjam Bai vs State of UP 1963 1 SCR 778 referred to
The source of power exercised by the authority ie whether it is executive or judicial power would make all the difference in the determination of the question whether the authority acts as a court or merely as a quasi judicial tribunal
746 F
Section 42 of the Code of Criminal Procedure provides that all words and expressions used herein and defined in the IPC and not hereinabove defined shall be deemed to have the meanings respectively attributed to them by the Code
 In the matter of dispensation of criminal justice the Indian Penal Code which contains the substantive law and the Criminal Procedure Code which deals with procedure may be regarded as supplementary to each other
The term Judge and Court of justice used in sections 19 and 20 of the Indian Penal Code give an indication of the attributes of a court as used in criminal law generally
Although the term court of justice has not been used in the Cr
PC the expression Judge is used in section 197 and therefore when a judge including a Magistrate who is empowered to act judicially and does so act constitutes not merely a Court but a Court of Justice
747 E D C F G
The caption of Chapter XIV is not decisive of the question whether a particular provision contained in it is limited to the supervisory jurisdiction of the Magistrate in relation to the investigation being conducted by the police or deals with his judicial functions as a court
Although Chapter XIV is headed Information to the police and their 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 section 1722 clearly deals with the use of police diaries at an inquiry or trial which a Magistrate holds not in his administrative or executive capacity but as a court
Similarly sections 169 and 170 are another instance in point in which an order passed by a Magistrate is a judicial order determining the rights of the parties after application of his mind
If that 719 be so the order passed by the Magistrate in the instant case must be characterised as a judicial act and therefore as one performed in his capacity as a court
748 D 747 G 748 C 750 G 751 E 7
For a tribunal to be acting as a court it is not necessary that the parties must have a right of hearing of adducing evidence at every stage of the proceedings before it
While passing interlocutory orders issuing temporary injunctions etc
 the presiding officer of a court does act as a court
751 H 752 B
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 the accused or orders taking cognizance of an offence complained of are parts of an integral whole which may end with a definitive judgment after an inquiry or a trial or earlier according to the exigencies of the situation obtaining at a particular stage and which involves if the need be the adducing of evidence and the decision of the Magistrate on an appreciation thereof
They cannot be viewed in isolation and given a character different from the entire judicial process of which they are intended to form a part
752 E F
Abhinandan Jha  Ors
vs Dinesh Mishra   M L Sethi vs R P Kapur  Anr   referred to
Kailasam J dissenting The restricted meaning given to Court in section 1952 Cr
PC read along with the conditions to be specified before a complaint is preferred by the court indicate that the proceedings before a Magistrate in which he agrees with the report by the police under section 169 Cr
PC and the proceedings in remand or bail applications during investigations will not amount to proceedings in or in relation to court  737 H
The policy behind the bar against institution of criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence is committed against public justice it should be the concerned authority that should prefer a complaint and no one else
723 H
A court is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it
It also imparts an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law 725 B C
It is settled law that when a Magistrate applies his mind on complaints he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for the purpose of ordering investigation under section 1563 Cr PC or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence
727 E 4
When the Magistrate receives a report under section 169 of the Cr
PC that there is not sufficient evidence or reasonable ground for suspicion and agrees 720 with it he may be doing so in exercise of his judicial function but the question is whether he is acting as a court
Most of the requirement of a court are lacking at this stage
To be classified as a court an authority must be charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment
This involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it and an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law
729 D E
Though the Magistrate in deciding whether or not to accept the report of a police officer under section 169 Cr
PC may be exercising his judicial mind and though there may be some of the trappings of the court at this stage he cannot be termed as a court within the provisions of section 1952 Cr
At this stage the rights of the parties are not finally decided as the complainant is entitled to file a complaint directly to the Magistrate
The persons accused are not before the Magistrate and neither the complainant nor the accused are entitled to be heard or to adduce evidence before the Magistrate at this stage
It cannot therefore be said that the Magistrate has a duty to decide the matter on a consideration of the evidence adduced before him
729 B F H 7
The proceeding under section 167 Cr
PC is during investigation
The Magistrate to whom the accused is produced can from time to time authorise detention of accused in such custody as such Magistrate thinks fit for a term not exceeding 15 days in whole
If he has not the jurisdiction to try the case or commit it for trial but considers further detention is necessary he may order the accused to be forwarded to a Magistrate having jurisdiction
In investigation by the police the Magistrate is associated in a supervisory capacity
The action taken by the Magistrate cannot be taken to be that of a court for the Magistrate who has no jurisdiction to try the case has a limited power
The trial commences only after the offence has been taken cognizance of
735 E F 8
Section 496 provides as to when bail may be taken in non bailable offences
The provisions of section 496 and section 497 speak of an accused person in custody charged with a non bailable offence being produced before court at any stage of the proceedings
The section deals with the exercise of the power of a court at any stage of proceedings when the accused is brought before a Court while in the custody of the police officer
Though there may be some trappings of a court and the section itself mentions the word court  the requirements for being a court for the purpose of section 1952 have not been satisfied
735 H 736 D 9i There is a conflict between various High Courts as to whether a complaint is necessary when on a police report under section 169 the Magistrate does not take any further action
The Bombay Saurashtra and Andhra Pradesh High Courts in  1952 Saurashtra 6768 and 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 IPC
The Madras Calcutta and 721 Allahabad High Court in AIR 1934 Mad 175 AIR 1948 All
184 FB and AIR 1916 Cal
593 have held the other view
ii When no further proceedings are taken by the Magistrate or receipt of a police report under section 169 there is no proceeding in or in relation to any court and therefore no complaint by the court is necessary
733 G 734 B