N Criminal Appeal Nos
282 283 of 1974
From the Judgment and Order dated 19 4 1973 of the Bombay High Court Nagpur Bench Nagpur in Criminal Appeal Nos 216 and 243 of 1971
J L Nain and M N Shroff for the Appellant
J C Batra Amicus Curiae for the Respondent
The Judgment of the Court was delivered by SARKARIA J
These two appeals by the State of Maharashtra are directed against a common judgment dated April 19 1973 of the High Court of Bombay Nagpur Bench Nagpur
Both will be disposed of by this judgment
They arise out of these facts 697 Three persons namely Shankar Sk
Bannu and Mohamad Nazir were tried for offences punishable under Sections 205 419 465 467 and 471 of the Indian Penal Code on the basis of a complaint made on August 12 1978 by Shri R K Karandikar Judicial Magistrate First Class Akola under Section 476 read with Section 195 of the Code of Criminal Procedure
Bannu accused 2 was at the relevant time serving as a Clerk to an Advocate at Akola
Mohamad Nazir accused 3 is the son of Sk
Bannu
Accused 1 Shankar was a milkman residing at Dabki Road Akola
On October 25 1968 in respect of offences under Section 8512 and 3 of the Bombay Prohibition Act one Deolal Kishan was arrested
He was produced before Shri L G Deshpande Judicial Magistrate First Class Akola and was remanded to custody till November 2 1968
On November 1 1968 an application was made before that Court for releasing Deolal Kishan
Along with that application an affidavit was filed which purported to have been sworn by one Gulabrao Rupchand Tikar as a surety
This affidavit was sworn before the Senior Clerk PW 2 and accused 2 Sk
Bannu is alleged to have identified him as Gulabrao and attested that application for this purpose
The Senior Clerk accordingly accepted what they stated and he made the necessary endorsement on the affidavit
Thus on the basis of that affidavit Deolal Kishan was released on bail on November 1 1968
The Bail Application and the affidavit were scribed by accused 3
The case against Deolal Kishan was transferred on April 20 1969 to the Court of Mr Karandikar Judicial Magistrate First Class Akola before whom it came up for hearing on May 12 1969
On that date Deolal Kishan did not appear
Consequently the Court issued a non bailable warrant against him for his arrest and production
Notice was also issued to the surety Gulabrao Rupchand Tikar PW3
Gulabrao appeared before the Magistrate on
June 2 1969 in response to the notice and filed a reply in writing exhibit 25A contending that he had never stood as surety for the accused Deolal Kishan and that he did not make any affidavit nor did he sign the application or the affidavit or the bail bond
According to him he was literate and could sign his name while the application and the affidavit in question bore thumb impressions of the surety
Gulabrao denied that he swore any affidavit for standing surety of Deolal Kishan
Thereupon the Magistrate recorded the statement of Gulabrao and initiated an inquiry
He called Mohd 698 Nazir accused 3 the scribe of the bail application and recorded his statement
He also called accused 2 Sk
Bannu and directed him to produce the real surety on June 10 1969 as the Magistrate was satisfied on the inquiry made by him that the person named in the bail application as the surety was not the real surety
On November 9 accused 3 Mohd Nazir made an application to the Magistrate on behalf of his father accused 2 that the real name of the surety was Shankar Kishan Kawitkar
Thereupon the Magistrate on June 10 1969 issued summons to accused 1 Shankar Kishan Kawitkar
The latter appeared in response to the summons on June 17 1969
The Magistrate recorded his statement exhibit 29 in which he admitted that the bail application and the affidavit had been thumb marked by him at the instance of accused 2 and that he had no knowledge about the contents of the application and the affidavit
On the preceding facts the Magistrate made a complaint to the Judicial Magistrate First Class Akola for prosecution of the three accused persons in respect of the aforesaid offences
The complaint came up before Shri P N Panchawadkar Judicial Magistrate who after holding an inquiry under Section 207A of the Code of Criminal Procedure recorded the evidence of the material witnesses and finding that there was a prima facie case against all the accused
Accordingly he committed them for trial to the Court of Session
The case came up for trial before the Additional Sessions Judge who after recording the prosecution evidence came to the conclusion that there was no case against accused 3 and acquitted him
He found that accused 1 Shankar was guilty of an offence under Section 205 of the Indian Penal Code and convicted him under that Section and sentenced him to suffer rigorous imprisonment for three years and a fine of Rs 1000 or in default of payment of fine to six months further rigorous imprisonment
Accused 1 was further convicted in respect of offences under Sections 419465 and 471 Penal Code and was sentenced to two years  rigorous imprisonment on each count with a direction that the sentences on all the counts would run concurrently
Accused 2 Sk
Bannu was convicted under Section 205 read with Section 109 of the Indian Penal Code and sentenced to three years  rigorous imprisonment and a fine of Rs 1000 or in default to suffer six month s further rigorous imprisonment
He was further found guilty of the offences under Sections 419 465 and 471 all read with Section 109 Penal Code and sentenced to two years  rigorous imprisonment on each count with a direction that the sentences would run concurrently
699 Against the judgment of the learned Additional Sessions Judge Shankar and Sk
Bannu preferred an appeal before the High Court
The High Court held that the proceedings before Shri Karandikar are not the same proceedings or continuation of the same proceeding which was before Shri L G Deshpande the previous court in which or in relation to which the offence is said to have been committed within the meaning of Section 476 read with Section 195 Criminal Procedure Code that the investigation stage is quite a distinct proceeding than the one which came to be transferred on the file of Shri Karandikar it being a regular trial
In this view of the matter the High Court concluded We are of the view that such a complaint could have only been made by Mr L G Deshpande who had released the accused on bail prior to the initiation of the case or his successor in office in that Court
So far as these proceedings in which the accused were released on bail by Mr L G Deshpande are concerned Mr Karandikar cannot be said to be the successor in office of Mr L G Deshpande
 On this reasoning the High Court held that the complete proceedings before the Committing Magistrate were without jurisdiction and by a writ quashed the same
In the result the appeals of Shankar and Sk
Bannu were allowed and their convictions were set aside
The High Court however granted a certificate under Article 134 of the Constitution that the case was fit for appeal to this Court
The question that falls for consideration in this case is whether Shri Karandikar Judicial Magistrate who made the complaint for prosecution of the accused in respect of offences under Sections 205 419 465 467 and 471 Penal Code was competent to initiate the proceedings within the meaning of Section 195 read with Section 476 of the Code of Criminal Procedure 1898
The relevant provisions of that Code are as under section 195 1 No Court shall take cognizance a      b of any offence punishable under any of the following sections of the same Code namely Ss 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 proceedings in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate or 700 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 1877
3 For the purposes of this section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate Provided a where appeals lie to more than one Court the appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate and b where appeals lie to a Civil and also to a Revenue Court such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed
 The material part of Section 476 of the Code of 1898 is as follows section 476
Procedure in cases mentioned in Section 195 1 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    701 Section 476A gives powers to the superior court to complain when the subordinate court has omitted to do so
It may be noted that an offence under Section 205 Penal Code as in the present case will fall within the ambit of clause b and an offence under Section 471 Penal Code will fall under clause c of sub section 1 of Section 195
The words in or in relation to which occur in clause b are not repeated in clause c
But these words occur in Section 476 both with reference to clause b and clause c of Section 1951
The interpretation of these words is not res integra
There was a conflict of judicial opinion in regard to the meaning and ambit of these words
One line of decisions took the view that the words in relation to are vide enough to cover a proceeding in contemplation though it may not have begun at the date of the commission of the offence but was subsequently instituted in court
This view is no longer good law in view of the pronouncement of this Court in M L Sethi vs R P Kapur
That case related to the commission of an offence under Section 211 Indian Penal Code
The question was whether the expression in or in relation to according to clause b of sub section 1 of Section 195 is applicable to cases where there can even in future be a proceeding in any court in relation to which the offence under Section 211 Indian Penal Code may be alleged to have been committed
The Court answered this question in the negative with these observations When examining the question whether there is any proceeding in any court there are three situations that can be envisaged
One is that there may be no proceeding in any court at all
The second is that a proceeding in a court may actually be pending at the point of time when cognizance is sought to be taken of the offence under section 211 IPC The third is that though there may be no proceeding pending in any court in which or in relation to which the offence under section 211 IPC could have been committed there may have been a proceeding which had already concluded and the offence under section 211 may be alleged to have been committed in or in relation to that proceeding
It seems to us that in both the latter two circumstances envisaged above the bar to taking cognizance under s1951 b would come into operation Now thus the settled position is that the bar in Section 1951b does not apply if there is no proceeding in any court at all when the offence mentioned in the aforesaid clause 1 has been 702 committed
In other words the Section contemplates only the proceedings pending or concluded and not in contemplation
In the instant case it is common ground that the forged bail bond and the false affidavit were presented in the court of Shri Deshpande Magistrate in bail proceedings
Shri Deshpande it is not disputed before us had also the jurisdiction to try the case which was then under investigation with the police
While considering a bail application of a person accused of an offence under investigation of the police the Magistrate acts as a court  the proceedings in the bail application being judicial proceedings
This position has been clarified recently by this Court in Kamalapati Trivedi vs State of West Bengal
It was held by this Court per majority that while deciding the question of bail the Magistrate cannot but be regarded as a Court acting judicially notwithstanding the fact that an offence of the accused is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate
It was added that the taking cognizance of any offence by a Magistrate under Section 190 is not a condition precedent for him to be regarded as a Court
It was further explained that an order of bail passed by a Magistrate 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
It was further observed  all orders passed by a Magistrate acting judicially such as orders of bail and those passed under sub section 3 of section 183 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 Considered in the light of the above enunciation in Kamalapati Trivedi s case the bail proceedings before the Court of the Magistrate Shri Deshpande could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process the second stage of which commenced on presentation of the challan by the Police in the Court of the Magistrate for an enquiry or trial of the 703 accused person to whom the bail had been granted
Indeed the surety bond which is alleged to have been forged in the name of Gulabrao Roopchand Tikar in terms was intended to be used for procuring the attendance of the accuses by the Court before whom the chargesheet under Section 173 Cr
PC might be presented by the Police for inquiry or trial
The material part of the surety bond dated November 1 1968 rendered into English reads as under I undertake that the said Deolal Kishan Maratha shall be present before the Court of the Judicial Magistrate
First Class Akola or before any other Magistrate conducting the preliminary inquiry   to answer the charges and on his failure to do so I do hereby bind myself to pay the sum of Rs 500 to the Government by way of fine
 Under the terms of the Personal Bond accompanying the surety bond also the executant had undertaken to appear before the Judicial Magistrate First Class Akola or before any other Magistrate who would hold an inquiry into or trial of charges framed against him
In other words the very terms of these bail bonds show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the Magistrate commencing with the presentation of a charge sheet under Section 173 Cr
PC against the accused
This being the real position the bail proceedings before Shri Deshpande and the subsequent proceedings before Shri Karandikar commencing with the presentation of the challan by the Police for the prosecution of Deolal Kishan could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process
Neither the time lag between the order of bail and the challan nor the fact that on presentation of the challan the case was not marked to Shri Deshpande but was transferred under Section 192 of the Code to Shri Karandikar would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole
Indeed the commission of the offences under Sections 205 419 465 467 and 471 Penal Code came to light only when Shri Karandikar on the basis of the forged surety bond in question attempted to procure the attendance of the accused
If the earlier proceedings before Shri Deshpande and the subsequent proceedings before Shri Karandikar were stages in or parts of the one and the same process as we hold they were then it logically follows that the aforesaid offences could be said to have been committed in or in relation to the proceedings in the Court of Shri Karandikar also for the purpose of taking action under Section 476 of the Code
704 In Behari Lal vs Sheikh Abdul Qadir Hamyari it was held by the High Court of Lahore that if a case or proceeding in which the offence is committed has been before various courts all the courts have the jurisdiction to complain but normally the court which finally tried the case would be the proper court to make a complaint
The Calcutta High Court in Bhiku s case held that if a false complaint made to a Magistrate is transferred under Section 192 of the Code of Criminal Procedure to another Magistrate the latter who had seisin of the case can make a complaint
In Maromma  Ors
vs Emperor it was held by the High Court of Madras that a false statement made during police investigation before a Magistrate and recorded by him under Section 164 Cr
PC regarding an offence of murder which is triable only by a Sessions Court must be held to be in relation to the trial in that Court and a complaint can be made for the prosecution of the persons giving that false statement for an offence under Section 193 Penal Code by the Sessions Court
Similarly in Athi Ambalayaran  Ors
vs Emperor a Division Bench consisting of Waller  Pandalai JJ held that a statement made by a witness at the preliminary enquiry leading up to the trial in the Sessions Court is to be regarded as having been in relation to the subsequent proceedings in the Sessions Court
Consequently the Sessions Judge has jurisdiction to direct prosecution of the person making that false statement even if he finds that the statement made before the Committal Court of the Magistrate was false
The rationale behind these decisions is that if the two proceedings one in which the offence is committed and the other the final proceedings in the same or a transferee court are in substance different stages of the same integrated judicial process the offence can be said to have been committed in relation to the proceedings before the Court to whom the case was subsequently transferred or which finally tried the case
By the same token the offences under Sections 205 and 471 Penal Code in the present case can be viewed as having been committed in relation to the proceedings before the Court of Shri Karandikar to whom the case was transferred for disposal
Thus considered Shri Karandikar was competent to make a complaint in respect of the aforesaid offences after conducting a preliminary inquiry under Section 476 Cr
PC 705 Before concluding we think it necessary to notice and distinguish the decision of this Court in Nirmaljit Singh Hoon vs The State of West Bengal  Ors
In that case the complaint was filed before the Chief Presidency Magistrate in respect of a cognizable offence of criminal breach of trust and cheating
The Magistrate without taking cognizance of the case sent that complaint under Section 1563 of the Code to the police for investigation
During that investigation or inquiry by the police the alleged forged receipt was produced by the accused
It was held that it could not be argued that this forged document was produced in a proceeding before the Court of Chief Presidency Magistrate although the forged document formed part of the record of the case which part of the record of the case which went to the Chief Presidency Magistrate together with the report of the police
The reason for so holding was that investigation ordered by a Magistrate under Section 1563 is an investigation made by a police officer in his statutory right under sub sections 1 and 2
Moreover the Magistrate sending such a complaint for investigation under Section 1563 cannot be said to have taken cognizance of the offence and no proceeding could be said to have been commenced before him of which the inquiry by the police could be said to be part and parcel
Further it cannot be said that the police officer acting under Section 1563 was a delegate of Chief Presidency Magistrate or that the investigation by him was an investigation by or on behalf of the Magistrate
On these premises the Court held that the production of the forged receipt in the course of such an investigation was not production in a proceeding before the Chief Presidency Magistrate so as to attract the ban under Section 1951c
In the instant case it cannot be disputed that the bail proceedings before Shri Deshpande were judicial proceedings before a court although such proceedings took place at a stage when the offence against the accused who was bailed out was under police investigation
Thus the facts in Nirmaljit Singh s case were materially different
The ratio of that decision therefore has no application to the case before us
For all the foregoing reasons we are unable to agree with the High Court that the bail proceedings before Shri Deshpande were distinct and different from those which were initiated on police challan in the Court of Shri Karandikar and therefore the latter was not competent to hold a preliminary inquiry under Section 476 706 Cr
PC andor to make a complaint for prosecution of the respondents herein in respect of the offences under Sections 205 419 465 467 and 471 Penal Code
We therefore allow this appeal set aside the impugned judgment and send the case back to the High Court with the direction that it should restore the appeals of Sk
Bannu and Shankar to their original numbers and after hearing the parties decide the same afresh on merits according to law
PBR Appeals allowed


Summary:
Section 1951b of the Code of Criminal Procedure 1898 provides that no Court shall take cognizance of any offence punishable under section 205 among others IPC when such offence is alleged to have been committed in or in relation to any proceedings in any Court except on the complaint in writing of such Court
Clause c of this sub section provides that no Court shall take cognizance of any offence described in among others section 471 when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced except on the complaint in writing of such Court
Section 476 Cr
PC provides that when any Criminal Court is whether on application made to it 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 1951b and c which appears to have been committed in or in relation to a proceeding in that court such court may make a complaint thereof and forward the same to a Magistrate First Class
The prosecution alleged that in an application for release of a person arrested under the Bombay Prohibition Act on bail accused No 2 identified the surety and that he attested the bail application
Accused No 3 was the scribe of the bail application and the affidavit accompanying it
The Magistrate ordered his release on bail
The case was transferred to another judicial magistrate who when the accused failed to appear before him on the date of hearing issued notice to the surety
The person to whom the notice was issued the purported surety appeared before the Magistrate and stated that he had never stood surety in the case nor had he ever made an affidavit nor signed any papers in this regard and being a literate person there was no question of putting his thumb impression on the affidavit and bail bond
Accused No 1 who was later named by accused No 2 as the real surety admitted before the trial Magistrate that the bail application and the affidavit had been thumb marked by him at the instance of accused No 2 and that he had no knowledge about the contents either of the application or of the affidavit
The Magistrate made a complaint to the judicial Magistrate First Class for prosecution of the three accused for the offences under sections 205 419 465 467 and 471 IPC
On finding that there was a prima facie case against all the accused the Magistrate committed them for trial
695 The Additional Sessions Judge acquitted accused No 3 but found accused No 1 guilty of offence under sections 205 419 465 and 471 IPC and accused No 2 for offences under section 205 read with sections 109 419 465 and 471 read with section 109 IPC and sentenced them variously
On appeal by accused nos
2 and 3 the High Court held that the proceedings before the transferee Magistrate were not the same proceedings or continuation of the same proceedings which were before the previous court in which or in relation to which the offence was committed within the meaning of section 476 read with section 195 Cr
PC and that such a complaint could have been made only by the magistrate who released the accused on bail prior to the initiation of the case or his successor in office in that court but since the transferee Magistrate was not the successor in office of the Magistrate granting the bail the proceedings before the committing Magistrate were without jurisdiction
Allowing the appeals  HELD  1
The High Court was not right in holding that the bail proceedings before the first  Magistrate were distinct and different from those initiated on police challan before the transferee Court and that therefore the latter was not competent to hold a preliminary inquiry under section 476 Cr
PC andor to make a complaint for persecution of the respondents in respect of offences under sections 205 419 465 467 and 471 IPC
706A C 2
An offence under section 205 IPC will fall within the ambit of clause b and an offence under section 471 IPC will fall under clause c of section 1951
The words in or in relation to occurring in clause b are not repeated in clause c
But these words occur in section 476 both with reference to clause b and clause c of section 1951
701B
The settled position on the interpretation of these provisions is that the bar in section 1951b does not apply if there is no proceeding in any court at all when the offence mentioned in section 1951 had been committed
In other words the section contemplates only proceedings pending or concluded and not in contemplation
701H
In the instant case the forged bail bond and the false affidavit were presented in bail proceedings before the first  Magistrate
That Magistrate had jurisdiction to try the case which was then under investigation
While considering a bail application of a person accused of an offence under investigation of the police the Magistrate acts as a court the proceedings in the bail application being judicial proceedings
702B
Kamalapati Trivedi vs State of West Bengal  relied on
The bail proceedings before the first  Court could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process the second stage of which commenced on presentation of the challan by the police in the court of the magistrate for an enquiry or trial of the accused person to whom the bail had been granted
702G
The very terms of the bail bond in the instant case show that they were intended to be a preliminary part of the proceedings of inquiry or trial before the magistrate commencing with the presentation of a charge sheet under section 173 Cr
PC against the accused
This being the real position the bail proceedings before the first  magistrate and the subsequent proceedings before 696 the transferee magistrate commencing with the presentation of the challan by the police for the prosecution of the accused in the prohibition case could not be viewed as distinct and different proceedings but as stages in and parts of the same judicial process
Neither the time lag between the order of bail and the challan nor the fact that on presentation of the challan the case was not marked to the first  Magistrate but was transferred under section 192 of the Code to the transferee magistrate would make any difference to the earlier and subsequent proceedings being parts or stages of the same integral whole
If the earlier proceedings before the first  court and the subsequent proceedings before the transferee court were stages in or parts of the one and the same process then it logically follows that the aforesaid offences could be said to have been committed in or in relation to the proceedings in the Court of the transferee Magistrate also for the purpose of taking action under section 476 of the Code
703D H
The rationale behind decided cases is that if the two proceedings one in which the offence was committed and the other the final proceedings in the same or a transferee court are in substance different stages of the same integrated judicial process the offence can be said to have been committed in relation to the proceedings before the Court to which the case was subsequently transferred or which finally tried the case
By the same token the offences under sections 205 and 471 Penal Code in the present case can be viewed as having been committed in relation to the proceedings before the court of transferee magistrate to whom the case was transferred for disposal
Therefore the transferee magistrate was competent to make a complaint in respect of the offences after conducting a preliminary inquiry under section 476 Cr
PC 704F H
In the instant case it cannot be disputed that the bail proceedings before the first  magistrate were judicial proceedings before a court although such proceedings took place at a stage when the offence against the accused who was bailed out was under police investigation
705G
Nirmaljit Singh Hoon vs The State of West Bengal  Ors  distinguished