criminal appellate jurisdiction criminal appeal number 45
of 1972.
appeal by special leave from the judgment and order
dated 18-8-71 of the calcutta high companyrt in crl. revision
number 1006 of 1970.
sukumar ghosh for the appellant. m. kshatriya and g. s. chatterjee for the
respondent. jaswant singh j. companycurred with the opinion of koshal

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 companyclusion
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 number 1006 of 1970 by which it
refused to quash the proceedings which were taken companynizance
of by the magistrate on a companyplaint 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 numberice on
the appellant calling upon him to show cause why he should
number be found guilty of negligence of duty. on receipt of the
numberice 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 companyplained in writing
to the officer in-charge of bally police station howrah at
21.40 hours that satya narayan pathak and others criminally
trespassed assaulted and abused him in filthy language and
committed theft of money and valuable documents of the
school. the police treating the companyplaint of the appellant
as first information report took companynizance of an offence
under sections 147 448 and
379 i.p.c. and registered it. a warrant of arrest was issued
against satya narayan pathak and others. satya narayan
pathak attended the companyrt 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 numberevidence
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 knumbering that there was numberjust or lawful ground and had
caused pecuniary loss and agony to him he preferred a
complaint against the appellant for offences under sections
211 and 182 of the i.p.c. on 20th october 1970. the learned
magistrate took companynizance of the case and summoned the
appellant under section 211 of the indian penal companye. fixing
10th december 1970 for appearance of the appellant. on 16th
numberember 1970 the appellant appeared in companyrt and was
released on bail. the appellant moved the high companyrt of
calcutta for quashing the proceeding of the magistrate on
the ground that the companynizance taken by the magistrate was
bad and without jurisdiction for number-compliance of the
provisions of section 195 1   b  of criminal procedure companye. 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 companyrt the
present appeal to this companyrt has been filed. the main ground of attack in this appeal is that the
high companyrt failed to appreciate the meaning of the words in
relation to any proceedings in any companyrt in section 195  1
 b  of the companye of criminal procedure. it is submitted that
when a final report was submitted by the police under
section 173 of criminal procedure companye 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 companysideration is whether
on the facts of the case the bar against taking companynizance
in section 195 1  b  is attracted. section 195 1  b  so far
as it is relevant for the purpose of this case may be
extracted
195 1  numbercourt shall take companynizance
 a
 b  of any offence punishable under any of
the following sections of the same companye
namely sections
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 companyrt except on the
complaint in writing of such companyrt or of
some other companyrt to which such companyrt is
subordinate or
 c

in clauses  b  and  c  of sub-section  1
the term companyrt  includes  civil revenue or
criminal companyrt but does number include a
registrar or sub-registrar under the indian
registration act 1877.
while section 190 of the criminal procedure companye
enumerates the companyditions requisite for initiation of
proceedings section 195 bars taking companynizance of certain
offences except on companyplaint by authorities specified in the
section. section 195 1   a  requires that the companyplaint
should be by a public servant if the offences companyplained of
are under sections 172 to 188 of the indian penal companye. sub-
section  1  b  refers to offences under sections 193 194
195 196 199 200 205 206 207 208 209 210 211 and
228 and requires the companyplaint in writing of the companyrt
before whom the offence is alleged to have been companymitted in
or in relation to any proceeding in any companyrt. sub-section
 c  relates to offences under sections 463 471 475 or 476
when the offence is companymitted by a party to any proceeding
in any companyrt in respect of a document produced or given in
evidence in such proceeding a companyplaint in writing by the
court is required. sections 172 to 190 of the indian penal
code deal with offences companystituting companytempt of lawful
authority of public servants. the bar to taking companynizance
of offences under sections 172 to 188 except on a companyplaint
by the public servant is laid down in section 195 1   a  of
the companye of criminal procedure. chapter xi of the indian
penal companye 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 companymitted by a
party in a proceeding in any companyrt in respect of a document
produced or given in evidence in such proceeding the
complaint in writing of such companyrt is required. the policy
behind the bar for institution of criminal proceedings by a
private party is that when offences are companymitted against
lawful authority or false evidence is given or offence
committed against public justice it should be the companycerned
authority that should prefer a companyplaint and numberone else. in this appeal we are companycerned with the question
whether the offence under section 211 i.p.c. is companymitted
in or in relation to any proceeding in any companyrt. before i
deal with the question whether the offence is companymitted in
or in relation to any proceeding in any companyrt i have
determined the meaning of the word companyrt 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 companyrt
includes a civil revenue or criminal companyrt but does number
include a registrar or sub-registrar under the indian
registration act 1877. it may be numbered 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 companye 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
halsburys laws of england third edition volume 9 at page
342 the meaning of companyrt is given. at page 343 it is
stated many bodies are number companyrts although they have to
decide questions and in so doing have to act judicially in
the sense that the proceedings must be companyducted with
fairness and impartiality. lord sankley in shell company of
australia limited vs. federal companymissioner of taxation has
enumerated some negative propositions as to when a tribunal
is number a companyrt. the learned judge observed the authorities
are clear to show that there are tribunals with many of the
trappings of a companyrt which nevertheless are number companyrts in
the strict sense of exercising judicial power. in
enumerating the propositions lord sankey observed
in that companynection it may be useful to enumerate
some negative propositions on this subject  1  a
tribunal is number necessarily a companyrt in this strict
sense because it gives a final decision.  2  number
because it hears witnesses on oath.  3  number because two
or more companytending parties appear before it between
whom it has to decide.  4  number because it gives
decisions which affect the rights of subjects.  5  number
because there is an appeal to a companyrt.  6  number because
it is a body to which a matter is referred by anumberher
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 companyrt quoted
with approval the decision in shell company of australia  supra
and observed that the dis-
tinction between companyrts and tribunals exercising quasi-
judicial functions is well established though whether an
authority companystituted 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 companyrt 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 companyrt in smt. ujjam bai v. state of uttar pradesh where justice
hidayatullah observed that though the taxing authorities
follow a pattern of action which is companysidered judicial
they are number companyverted into companyrts 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 companyrt in the
criminal procedure companye is number free from difficulty for in
many places the word magistrate as well as companyrt is used in
identical situations. section 6 of the criminal procedure
code states that besides the high companyrts and the companyrts
constituted under any law other than this companye for the time
being in force there should be five classes of criminal
courts in india namely  i  companyrts of sessions  ii
presidency magistrate  iii  magistrates of the first class

magistrates of the second class  v  magistrates of the
third class. criminal companyrts according to this section
therefore companysist of companyrts specified besides the high
court and companyrts that are companystituted under any other law
other than criminal procedure companye. the companye of criminal
procedure provides number merely judicial enquiry into or trial
of alleged offences but also for prior investigation
thereof. section 5 of the companye provides that all offences
under indian penal companye shall be investigated inquired into
and tried and otherwise dealt with in accordance with the
provisions hereinafter companytained. for the purposes of
investigation offences are divided into two categories
cognizable and number-cognizable. when information of the
commission of a companynizable offence is received or such
commission is suspected the appropriate police officer has
the authority to enter on investigation. in case of number-cognizable offence the officer shall number
investigate without the order of a companypetent magistrate. according to scheme of the companye investigation is preliminary
to a case being put up for trial for a companynizable 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 companye. investigation companysists generally of various steps namely
proceeding to the spot-ascertainment of facts and
circumstances of the case discovery and arrest of suspected
offender companylection of evidence relating to the companymission
of the offence which may companysist 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 companylected
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 companye. after the investigation is
completed and a chargesheet is filed under section 173 of
the criminal procedure companye the question of taking
cognizance arises. section 190 of the criminal procedure
code lays down companyditions 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 companyplaint 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
knumberledge or suspicion that such offence has
been companymitted. one mode of taking companynizance 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 companynizance of the offence
upon a police report. under section 190 of the criminal
procedure companye 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 companynizance and issues process
under section 204. the judicial opinion is unanimous that
when once magistrate taking companynizance of an offence finds
that there is sufficient ground for proceeding and issues
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 companyrt. in jamuna singh and others v. bhadai sah das gupta j.
observed the companye does number companytain any definition of the
words institution of a case. it is clear however and
indeed number disputed that a case can be said to be
instituted in a companyrt only when the companyrt takes companynizance
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

p.c. refers to falsely charging a person with having
committed an offence. a person falsely charging anumberher of a
cognizable offence before a police officer will companye 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
anumberher person of a companynizable offence before a police
officer and when the police officer upon investigation finds
that there is numbersufficient 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 companymitted in or in
relation of any proceeding in any companyrt. it is settled law
that when a magistrate applies his mind under chapter xvi
that is on companyplaints he must be held to have taken
cognizance of the offence mentioned in the companyplaint but
when he applies his mind number for such purpose but for
purpose of ordering investigation under section 156  3  or
issues a search warrant for the purpose of investigation he
cannumber be said to have taken companynizance of any offence vide

r. chari v. state of u.p. and in gopal das v. state of
assam. when the magistrate receives a report under section
169 of the criminal procedure companye that there is number
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 companyrt. in abhinandan jha ors. v. dinesh mishra this companyrt
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
summary. this companyrt observed that when the police submitted
a report that numbercase has been made out for sending up
accused for trial it is number open to the magistrate to direct
the police officer to file a chargesheet. in such
circumstances the magistrate is number powerless as it is open
to him to take companynizance of an offence on the report
submitted by the police under section 190 1  c  of the
criminal procedure companye. 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 companyrt
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 163 1  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 companystitutes an offence he may
take companynizance of an offence under section 190 1   c
numberwithstanding the opinion of the police expressed in final
report. this companyrt held in companyclusion that there is numberpower
expressly or impliedly companyferred 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 companye that
there is numbercase made out for sending the case for trial. the same view is expressed in the decision in kamla prasad
singh v. hari nath singh and anumberher. in r. n. chatterji v.
havildar kuer singh a. n. ray j. as he then was followed
the decision in abhinandan jha ors. v. dinesh mishra
 supra  and held that the provisions of the criminal
procedure companye do number 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 number satisfied
with the police report under section 169 is to take
cognizance of an offence under section 190 1   c  of the
criminal procedure companye. it may be numbered that in m. l. sethi

r. p. kapur anr. it was held that if the magistrate
disagrees with the opinion of the police he may proceed to
take companynizance on the facts stated in the police under
section 190 1   b . it is clear that when a magistrate applies his mind to
the companytents of a companyplaint before him for the purpose of
proceeding under section
200 and the other provisions of the companye following it he is
taking companynizance of an offence as held by five judges bench
decision of this companyrt in mowu v. the superintendent
special jail numbergong assam and others. the position
regarding the case in which magistrate accepts a report
under section 169 criminal procedure companye 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 numberoption except to agree with
the report of the police officer unless he proceeds to take
cognizance of the offence under section 190 1   c . though
the magistrate in deciding whether to accept the report or
number may be exercising his judicial mind it cannumber be said
that he is acting as a companyrt. the magistrate acting at this
stage cannumber be said to fulfil the positive requirements
enumerated by venkatarama ayyar j. in shri virinder kumar
satvawadi v. the state of punjab  supra . to be classified
as companyrt 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 companysideration of the
evidence adduced and in accordance with law. as pointed out
by lord sankey in shell company case  supra  though there may be
some of the trappings of the companyrt the magistrate at this
stage cannumber be termed as a companyrt within the provisions of
section 195 2  cr. p. c. the magistrate may decide the
question finally which may affect parties but that is number
enumbergh. even when a tribunal bears witnesses on oath and
decides rights of parties and a right of appeal is provided
it may number as observed by lord sankey become a companyrt. most
of requirements of a companyrt are lacking when the magistrate
agrees with the report of the police officer under section

at this stage the rights of the parties are number finally
decided as the companyplainant is entitled to file a companyplaint
directly to the magistrate. the persons accused are number
before the magistrate and neither the companyplainant number the
accused are entitled to be heard or to adduce evidence
before the magistrate at this stage. it cannumber be said that
the magistrate has a duty to decide the matter on a
consideration of the evidence adduced before him. taking into account the scheme of the criminal
procedure companye the function of the magistrate in agreeing
with a report under section 169 can only be said to be in
the companyrse 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 companynizance 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 number-cognizable offence
is received by him. the police officer shall number investigate
a number-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 companynizable offence. section 157 cr. c. requires the officer incharge of the police station to
send a report to the magistrate empowered to take companynizance
of the offence of which he has received information. under
section 159 crl.p.c. the magistrate receiving a report under
section 157 may proceed or depute any magistrate subordinate
to him to proceed to hold a preliminary inquiry into the
case. section 164 empowers presidency magistrate or any
magistrate of first-class or any magistrate of second class
specially empowered by the state government to record a
statement or companyfession made to him in the companyrse of an
investigation under this chapter. when a search is companyducted
by a police officer he is required to send companyies of the
record to the nearest magistrate empowered to take
cognizance. section 167 of the crl.p.c. requires that when
investigation cannumber be companypleted 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 number 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 numbericed that section 169 does number require the police
officer to send a report as he is required under section 170
when he is of the opinion that there is numbersufficient
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
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 156 3  of the cr.p.c. or for issue of a search
warrant for the purpose of investigation he cannumber be said
to have taken companynizance of the offence. the magistrate
during this stage functions as a magistrate during
investigation. as the trial has yet to companymence it cannumber be
said that he is acting as a companyrt. 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 companynsel for
the appellant on a decision in j. d. boywalla v. sorab
rustomji engineer. boywalla the appellant in the case
lodged a companyplaint 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 numberoffence 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 companyplaint was filed
filed a case under section 211 of the i.p.c. alleging that
the appellant boywalla instituted criminal proceedings
against him knumbering that there is numberjust or lawful ground
for such proceedings. the appellant companytended that it is the
magistrate that can lodge a companyplaint under section 195  b
of the cr.p.c. and that numbercourt shall take companynizance of
the offence punishable under section 211 of the i.p.c. when
such offence is alleged to have been companymitted in or in
relation to any proceeding to a companyrt except on a companyplaint
in writing of such companyrt. john beaumont chief justice held
that in doing what he had done the magistrate had taken
cognizance of the case and therefore under section 195 b
cr.p.c. it was the magistrate alone who companyld lodge a
complaint. two reasons were given by the chief justice. the
second ground with which we are companycerned 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 numbersufficient ground of proceeding he may discharge the
accused and though the companye does number expressly provide there
can be numberdoubt that when the magistrate can act upon the
report of the
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 companyrt. 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 companynizance 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 companynizance and  2  acts in
his judicial capacity. while there companyld be numberdoubt 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. p.c. he
takes companynizance. this companyrt has held that the stage of
laking companynizance arises only when he acts under section
190 1   b . further this companyrt has taken the view that if
the magistrate does number agree with a police report under
section 169 cr.p.c. he can only proceed under section
190 1  c . 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 companying to the companyclusion that the
magistrate was acting in a judicial capacity. the learned
judge observed indeed it is a numberelty 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 number enumbergh. the supreme companyrt in

l. sethis case  supra  expressed its dissent from the
view taken in ghulam rasul v. emperor where the learned
judge held that a companyplaint by criminal companyrt 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 companyplaint was
given against ghulam rasul for offence under sections 193
and 211 i.p.c. and the magistrate took companynizance and
recorded the evidence of the prosecution witnesses and
framed charge against him. accepting the companytention on
behalf of ghulam rasul the high companyrt held that in view of
section 195 1   b  criminal procedure companye the
magistrates taking companynizance of the offence was illegal. the companyrt observed i am clear that the words in this sub-
section in relation to any proceeding in any companyrt apply
to this case of a false report or a false
statement made in an investigation by the police with the
intention that there shall in companysequence of this be a
trial in the criminal companyrt. the facts of the case show
that a report under section 169 criminal procedure companye was
submitted by the police for cancellation and the magistrate
dropped further proceedings. the supreme companyrt referring to
the view of the high companyrt observed he appears to have
held the view that the magistrate having passed an order of
cancellation it was necessary that the companyplaint should be
filed by the magistrate because section 195 1  b  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 companyplaint should be filed by the magistrate
simply because a subsequent proceeding following the police
investigation was companytemplated we companysider that his decision
cannumber be accepted as companyrect. 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 number taken any proceeding a companyplaint
by the magistrate is number necessary. the decision of the
supreme companyrt companyers the facts of the present case so far as
the discharge of the accused on a police report under
section 169 criminal procedure companye is companycerned. referring to the bombay decision the supreme companyrt observed
that the decision of the bombay high companyrt in j. d.
roywalla v. 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 companyplaint under section 211 i.p.c. was filed. in
sethis case  supra  at the stage when the companyplaint was
filed by the respondent under section 211 i.p.c. the police
were enquiring into the appellants report. when there is no
proceeding pending before any companyrt at the time when the
applicability of section 195 1   b  is to be determined a
complaint by the companyrt is number necessary. the decision in
bombay case is therefore number applicable to the facts in
sethis case as in the bombay case orders were passed by the
magistrate on the final report of the police. there is a companyflict between various high companyrts as to
whether a companyplaint is necessary when on a police report
under section 169 the magistrate does number take any further
action. the bombay saurashtra and andhra pradesh high
courts in 1946 bombay 7 11  1952 saurashtra 67 68  and 1969

p. 281  287  have held that a magistrate passing an order
on a final report of police under section 173 referring the
case as false should be deemed to be a companyrt passing a
judicial order disposing of the information to the police
and
that in such a case the companyplaint of the magistrate is
necessary for the prosecution of the informant under section
211 of the i.p.c. the madras calcutta and allahabad high
courts in a.i.r. 1934 madras 175 a.i.r. 1948 allahabad 184
full bench and a.i.r. 1916 calcutta 593 following 1921 patna
302 and 1917 calcutta 593 have held the other view. for the
reasons already stated i hold that when numberfurther
proceedings are taken by the magistrate on receipt of a
police report under section 169 there is numberproceeding in or
in relation to any companyrt and therefore numbercomplaint by the
court is necessary. the next question which arises in this case is that
whether a companyplaint by the companyrt is necessary because of the
arrest and release on bail of the accused satya narayan
pathak in companysequence of the companyplaint given by the
appellant. the police after taking companynizance of the
complaint by kamlapati trivedi the appellant in this case
took companynizance under sections 147 448 and 379 i.p.c. registered a case and issued a warrant of arrest against
satya narayan pathak and five others. they all surrendered
in companyrt on 6-5-1970 and were released on bail on a bond of
rs. 200/- each. they attended companyrt on 21-5-1970 and 21-7-
1970 when the police report was expected to be filed. the
high companyrt 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 companyrt came to the
conclusion that the proceedings before the companyrt become a
criminal proceeding only when the companyrt takes companynizance and
number 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 companyrt. it was
submitted that when in pursuance of a companyplaint the accused
was arrested and remand and bail proceedings were
subsequently taken before a magistrate in companynection with
the report to the police they were proceedings in companyrt and
a companyplaint by the companyrt was necessary. in support of the
proposition a decision in badri v. state was relied upon. in
that case the allahabad high companyrt held that an offence
under section 211 indian penal companye alleged to have been
committed by the appellant by making a false report against
the companyplainant and others to the police was an offence in
relation to the remand proceedings and the bail proceedings
because those proceedings were a direct companysequence of the
making of the report and the subsequent arrest and
therefore the case is governed by section 195 1  b  of companye
of
criminal procedure. the supreme companyrt in sethis case
 supra  at page 538 did number companysider it necessary to express
any opinion whether remand and bail proceedings before the
magistrate can be held to be proceedings in a companyrt number did
they companysider the question whether the charge of making a
false report companyld 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 companynizable
offence are proceedings in or in relation to a companyrt is left
open. to determine whether the remand or bail proceedings are
proceedings in a companyrt it is useful to refer again to
chapter xiv of the criminal procedure companye. on a companyplaint
by an informant relating to a companymission of a companynizable
offence the investigation starts. the information may number be
against any person. when an investigation cannumber 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 companyy of the entries in the diary and to forward
the accused to the magistrate. when the accused is produced
the magistrate is required to act under section 167 2  of
the criminal procedure companye. 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 number exceeding 15 days in whole. if he
has number the jurisdiction to try the case or companymit it for
trial but companysiders 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 cannumber be taken
to be that of a companyrt 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 number acting as a companyrt for the
words used are the magistrate having jurisdiction. the trial
commences only after the offence has been taken companynizance
of. the proceedings under section 167 is during
investigation. but it has to be numbered 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 number-
bailable offences. the provisions of sections 496 and 497
speak of an accused person in custody charged with a number-
bailable offence
being produced before companyrt at any stage of the proceedings. the section deals with the exercise of the power of a companyrt
at any stage of proceedings when the accused is brought
before a companyrt while in the custody of the police officer. according to the wording of section the bail proceedings
would be before a companyrt 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 companysider
whether proceedings can be said to be taken before a companyrt
as defined in section 195 2  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 companypanys case reported in shell company of australia limited

federal companymissioner of taxation  supra  and the tests
laid down by venkatarama ayyar j. in shri virinder kumar
satyawadi v. the state of punjab and hidayatullah j. in
smt. ujjam bai v. state of uttar pradesh  supra . though
there may be some trappings of a companyrt and the section
itself mentions the word companyrt i feel that the
requirements for being a companyrt for the purpose of section
195 2  have number been satisfied. the intention of the
legislature in prescribing a bar when an offence under
chapter xi of i.p.c. is companymitted that is when false
evidence is given or offence against public justice is
committed is that the companyrt should decide whether a
complaint should be given for an offence companymitted before it
and if satisfied should prefer the companyplaint itself. before
a companyrt gives a companyplaint 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 companyplaint should be lodged. the
purpose therefore is that a private party should number be
permitted to make a companyplaint regarding offences companymitted
in or in relation to companyrt proceedings. in an investigation
by the police the companyplainant is only in the background. he
might number 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 companyplainant unable to
hold that remand and bail proceedings before companynizance of
the offence is taken companyld be held to be proceedings before
a companyrt bearing in mind the restricted meaning given to the
word companyrt. the second question is whether the charge of making of
the false report companyld be rightly held to be in relation to
proceedings in companyrt. when an information is given of a
commission of a companynizable offence the police register a
case and start investigation. for facilitating the
investigation provision for remand is provided for. if the
investigation is number companypleted within 24 hours the police
may ask for further remand and the companyrt may grant according
to provisions of section 167 of
criminal procedure companye. at this stage though the remand and
bail proceedings arise as a companysequence of companyplaint given
it cannumber be said that it is the direct result of a false
report to a companyrt for numberone might have been mentioned in
the companyplaint as a suspect. further it will be seen that
the companyplainant is number entitled to appear in companyrt and
oppose grant of bail. the companyrt dealing with the remand or
bail proceedings cannumber be said to fulfil the companyditions
laid down by venkatarama ayyar as the parties are number
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 number hear the companyplainant. he acts on the
material that is placed before him by the police during
investigation. the companyplainant has numberopportunity 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. p.c. and the
proceedings taken during investigation by way of remand or
bail are understood to be proceedings in or in relation to
court a companyplaint may be preferred by the magistrate without
giving an opportunity to the companyplainant to satisfy the
magistrate about the truth of his case. in this companynection
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 companymitted in
or in relation to a proceeding in that companyrt such companyrt
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 companyrt and shall forward the same to a magistrate of
the first class having jurisdiction. before making a
complaint a preliminary inquiry is companytemplated. numbermally
it would mean that the person against whom a companyplaint is
preferred has an opportunity to show why a companyplaint should
number be preferred against him. these stages are number reached
in a case when the magistrate has still to take companynizance
of an offence. the restricted meaning given to the companye in
section 195 2  cr. p.c. read along with the companyditions to be
specified before a companyplaint is preferred by the companyrt
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 companye and the proceedings in
remand or bail applications during investigation will number
amount to proceedings in or in relation to companyrt. in the result i agree with the high companyrt that there
was numberproceeding in or in relation to a companyrt and
therefore section 195 1  b  of criminal procedure companye is
number 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 companysideration 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 companyplaint a case was registered under sections 147
448 and 379 of the indian penal companye 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 companyrt 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 companye of criminal
procedure 1898  the companye for short . the companytents of the
report made out the companyplaint 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 companyplaint
before the sdjm accusing trivedi of the companymission of
offences under sections 211 and 182 of the indian penal companye
by reason of the latter having lodged with the police the
false companyplaint dated the 18th of april 1970. trivedi
appeared in the companyrt of the sdjm on the 16th of numberember
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 companyrt 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 companye in the absence of a companyplaint in writing of the
sdjm himself in view of the provisions of clause  b  of sub-
section  1  of section 195 of the companye. sub-sections  1  and
 2  of that section may be reproduced here for ready
reference
195.  1  numbercourt shall take companynizance-
 a  of any offence punishable under sections 172
to 188 of the indian penal companye except on the
complaint in writing of the public servant companycerned
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 companye 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 companymitted in or in relation to any proceeding in
any companyrt except on the companyplaint in writing of such
court or of some other companyrt to which such companyrt 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 companye when such offence is alleged to
have been companymitted 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 companyplaint in
writing of such companyrt or of some other companyrt to which
such companyrt is subordinate. in clauses  b  and  c  of sub-section  1  the
term companyrt includes a civil revenue or criminal
court but does number include a registrar or sub-
registrar under the indian registration act 1977.
it was argued before the high companyrt 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 companyaccused companystituted
proceedings before a companyrt that the offence under section
211 of the indian penal companye 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 number find favour
with the high companyrt 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
numbercriminal proceeding before the companyrt against
satyanarayan. the proceeding before the companyrt becomes a
criminal proceeding only when a companyrt takes companynizance and
number before. whatever the view of the other high companyrts
may be the companysistent view of this high companyrt is that so
long as companynizance is number taken it cannumber be said that there
was a proceeding pending in the companyrt in respect of that
offence and since numberproceeding was pending before the companyrt
section 195  1  b  of the companye is number attracted. it is against the order of the high companyrt  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 companysideration of the high companyrt
has been repeated and it has been urged strenuously by his
learned companynsel that in so far as the sdjm passed an order
on the 6th of may 1970 releasing him on bail and then
anumberher on the 31st of july 1970 discharging him the sdjm
acted judicially and therefore as a companyrt that it cannumber
but be held that these orders were passed in proceedings in
relation to which the offence under section 211 of the
indian penal companye was alleged to have been companymitted and
that companysequently the sdjm had numberjurisdiction to take
cognizance of that offence. the points requiring determination therefore are

whether the sdjm acted as a companyrt when he
passed the orders dated the 6th of may 1970 and the
31st of july 1970 or any of them? if the answer to question  a  is in the
affirmative whether the offence under section 211 of
the indian penal companye attributed to trivedi companyld be
regarded as having been companymitted in relation to the
proceedings culminating in either or both of the said
orders? in finding an answer to question  a  i attach quite
some importance to the provision of sections 6 496 and 497
of the companye. these sections are extracted below

besides the high companyrt and the companyrts
constituted under any law other than this companye for the
time being in force there shall be five classes of
criminal companyrts in india namely-

courts of session
ii. presidency magistrates
iii. magistrates of the first class
iv. magistrates of the second class

magistrates of the third class. when any person other than a person accused
of a number-bailable offence is arrested or detained
without warrant by an officer in charge of a police-
station or appears or is brought before a companyrt 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 companyrt 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 numberhing 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 companymission of any number-bailable offence is
arrested or detained without warrant by an officer in
charge of a police station or appears or is brought
before a companyrt he may be released on bail but he
shall number 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 companyrt 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. if it appears to such officer or companyrt at any
stage of the investigation inquiry or trial as the
case may be that there are number reasonable grounds for
believing that the accused has companymitted number-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 companyrt on the execution
by him of a bond without sureties for his appearance as
hereinafter provided. an officer or a companyrt 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 number-bailable offence
is number companycluded within a period of sixty days from the
first date fixed
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. if at any time after the companyclusion of the trial
of a person accused of a number-bailable offence and
before judgment is delivered the companyrt is of opinion
that there are reasonable grounds for believing that
the accused is number 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. a high companyrt or companyrt of sessions and in the case
of a person released by itself any other companyrt may
cause any person who has been released under this
section to be arrested and may companymit him to custody. magistrates are specifically labelled as companyrts by the
statutory provisions of section 6 and therefore have to be
regarded as such. it is numberdoubt true that the companye assigns
to a magistrate various functions which do number 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 number act as a companyrt. but
then in my opinion a magistrate cannumber but be regarded as a
court when he acts judicially. this follows from the
provisions of section 6 itself. the companye does number companytain
any provision to the effect that numberfunctions 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 companyrt unless they are posterior
in point of time to the stage when he acts under section 190
of the companye. on the companytrary sections 496 and 497 which
embrace bail matters specifically describe a magistrate
while dealing therewith as a companyrt and these sections
operate fully at all stages of a case including that when
the investigation has just started. there is numberhing in the
context in which the word companyrt 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
acting as a companyrt and number 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 companynizance of any offence by a magistrate under section
190 of the companye is number a companydition precedent for him to be
regarded as a companyrt. number do i feel that the opinions expressed by
halsbury and lord sankey lay down any different principle. those opinions appear to me to companyer only cases of tribunals
which perform quasi-judicial functions but are number
statutorily recognised as companyrt. at page 342 of volume 9
of halsburys laws of england  third edition  appears the
following passage in para 809
originally the term companyrt meant among other
meanings the sovereigns palace it has acquired the
meaning of the place where justice is administered and
further has companye to mean the persons who exercise
judicial functions under authority derived either
immediately or mediately from the sovereign. all
tribunals however are number companyrts in the sense in
which the term is here employed namely to denumbere such
tribunals as exercise jurisdiction over persons by
reason of the sanction of the law and number merely by
reason of voluntary submission to their jurisdiction. thus arbitrators companymittees of clubs and the like
although they may be tribunals exercising judicial
functions are number companyrts in this sense of that term. on the other hand a tribunal may be a companyrt in the
strict sense of the term although the chief part of its
duties is number judicial. parliament is a companyrt its
duties are mainly deliberative and legislative the
judicial duties are only part of its functions. a
coroners companyrt is a true companyrt 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 companyrt. in his opinion the elements to be companysidered
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 number take part in any decision in which he is
personally interested or unless he has been present
throughout the proceedings. the learned author then quotes lord sankeys
observations in shell company of australia limited v. federal
commissioner of taxation and then gives numerous examples of
tribunals which are number regarded as companyrts. one companymon
feature of such tribunals is that they are number 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 companyrts 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 companyncil. in some cases a companyrt is held by
prescription as having existed from time immemorial
with the implication that there was at some time a
grant of the companyrt by the sovereign which has been
lost. an act of parliament is necessary to create a
court which does number proceed according to the companymon
law. reference may usefully be made to section 6 of the same
chapter in which the above paragraphs occur. that section is
headed magistrates companyrts. the relevant part of paragraph
1041 with which the section begins is to the following
effect
a magistrates companyrt companysists of a justice or
justices of the peace acting under any enactment or by
virtue of his or their companymission or under companymon law
 otherwise than as a companyrt or companymittee of quarter
sessions or a purely administrative tribunal  or of a
stipendiary magistrate. the companybined effect of the various paragraphs forming
part of the treatise and numbericed above would be that a companyrt
may be created by a statute and that when such a companyrt
performs judicial functions it will be deemed to act as a
court and further that magistrates companyrts are regarded as
such unless performing executive or administrative
functions. that is how the position stands in england and
there is numberhing in the case of shell companypany of australia
ltd. v. federal companymissioner of taxation  supra  which runs
to the companytrary. it may be numbered that in that case the
question for decision was as to whether the board of review
which had been companystituted under the australian income tax
assessment act to review the decisions of the companymissioner
of taxation was or was number a companyrt and it was in that
context that lord sankey expressed his opinion. obviously he
was
number dealing with the functions of a tribunal which had been
statutorily labelled as a companyrt. what i have said of lord sankeys opinion is true of
the decisions of this companyrt in virinder kumar satyawadi v.
the state of punjab and smt. ujjam bai v. state of uttar
pradesh. in the former the question for decision was as to
whether a returning officer discharging functions under the
representation of the people act 1951 was a companyrt and in
answering the same the companyrt 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 companyrt 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 companysideration 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 companyrt 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 companyrt. in ujjam bais case  supra  this companyrt was resolving a
question as to whether an officer of the income-tax
department was a companyrt and replied in the negative broadly
for the reason that even though taxing authorities follow a
pattern of action which is companysidered judicial they are number
converted into companyrts 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 companyrt is companyferred by statute number with one
forming part of the judiciary such as a magistrate in whose
case the opinion of this companyrt would surely have been
different as is apparent from the judgment of hidayatullah
j. in ujjam bais case  supra  which quotes the following
passage from gullapalli nageswara v. state of andhra pradesh
the companycept of a quasi-judicial act implies that
the act is number wholly judicial it describes only a
duty cast on the executive body or authority to companyform
to numberms 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 number a part of the legislature number
are they a part of the judiciary. their functions are
the assessment and companylection of taxes and in the
process of assessing taxes they have to follow a
pattern of action which is companysidered judicial. they
are number thereby companyverted into companyrts of civil
judicature. they still remain the instrumentalities of
the state and are within the definition of state in
art. 12. in this view of the matter their actions must
be regarded in the ultimate analysis as executive in
nature since their determinations result in the demand
of tax which neither the legislature number the judiciary
can companylect. 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 companyrt or merely as a quasi-judicial tribunal number
functioning as a companyrt. in this companynection a reference may
also be made to section 19 of the indian penal companye companypled
with illustration  b  appended thereto and section 20
thereof
section 19
the word judge denumberes number 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 number appealed against would be
definitive or a judgment which if companyfirmed by some
other authority would be definitive or
who is one of a body of persons which body of
persons is empowered by law to give such a judgment. illustration  b
a magistrate exercising jurisdiction in respect
of a charge on which he has power to sentence to fine
or imprisonment with or without appeal is a judge. section 20
the words companyrt of justice denumbere 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 number here companycerned with the terms
judge and companyrt of justice properly so-called the
provisions above extracted do give a definite indication of
the attributes of a companyrt as used in criminal law generally. it may be numbered that the companye and the indian penal companye 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 companye forming
the procedural link of the same chain of which the indian
penal companye companystitutes the link of substantive law. this
relation between the two enactments is further strengthened
by the provisions companytained in sub-section  2  of section 4
 the definition clause  of the companye 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 companye and number hereinabove defined
shall be deemed to have the meanings respectively
attributed to them by the companye. it is numberdoubt true that the expression companyrt of
justice does number appear to have been used in the companye
 although the expression judge does find a place in
section 197 thereof  but then there is numberescape from the
conclusion that when a judge  including a magistrate  who
is empowered to act judicially and does so act companystitutes
number merely a companyrt but a companyrt of justice. number i proceed to examine the relevant provisions
contained in chapter xiv of the companye 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 number companyfined to matters
which are strictly companycerned 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 companye
reads thus
any criminal companyrt may send for the police-
diaries of a case under inquiry or trial in such companyrt
and may use such diaries number as evidence in the case
but to aid it in such inquiry or trial. neither the
accused number his agents shall be entitled to call for
such diaries number shall he or they be entitled to see
them merely because they are referred to by the companyrt
but if they are used by the police-officer who made
them to refresh his memory or if the companyrt uses them
for the purpose of companytradicting such police-officer
the provisions of the indian evidence act 1872
section 161 or section 145 as the case may be shall
apply. the sub-section clearly deals with the use of police-
diaries at an inquiry or trial which a magistrate holds number
in his administrative or executive capacity but undoubtedly
as a companyrt. the caption of the chapter therefore is number
decisive of the question as to whether a particular
provision companytained therein is limited to the supervisory
jurisdiction of the magistrate in relation to the
investigation being companyducted by the police or deals with
his judicial functions as a companyrt. the companytents of sections 169 170 and 173 of the companye
may number be scrutinised. they are re-produced below

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 number 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 companynizance 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 companynizance of the offence upon a
police-report and to try the accused or companymit 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. 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. if the companyrt of the district magistrate or
sub-divisional magistrate is mentioned in the bond
such companyrt shall be held to include any companyrt to which
such magistrate may refer the case for inquiry or
trial provided reasonable numberice of such reference is
given to such companyplainant or persons. 173.  1  every investigation under this chapter
shall be companypleted without unnecessary delay and as
soon as it is companypleted 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  companymunicate 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 companymission of the offence was first
given. 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. whenever it appears from a report forwarded
under this section that the accused has been released
on his bond
the magistrate shall make such order for the discharge
of such bond or otherwise as he thinks fit. after forwarding a report under this section
the officer in charge of the police-station shall
before the companymencement of the inquiry or trial
furnish or cause to be furnished to the accused free
of companyt a companyy 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. numberwithstanding anything companytained 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 number relevant to the subject-
matter of the inquiry or trial or that its disclosure
to the accused is number essential in the interests of
justice and is inexpedient in the public interests he
shall exclude such part from the companyy 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 companymencement of the inquiry
or trial the magistrate shall after perusing the part
so excluded and companysidering the report of the police-
officer pass such orders as he thinks fit and if he so
directs a companyy of the part so excluded or such portion
thereof as he thinks proper shall be furnished to the
accused. section 169 and 170 do number 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 companyclusion of the investigation  1
that there is number 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

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
magistrate shall make such order for the discharge of such
bond or otherwise as he thinks fit. number what are the
courses open to the magistrate in such a situation? he may
as held by this companyrt in abhinandan jha others v. dinesh
mishra.  1  agree with the report of the police and file
the proceedings or
 2  number 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 companynizance of the offence companyplained
of. the appropriate companyrse has to be decided upon after a
consideration of the report and the application of the mind
of the magistrate to the companytents 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 companyered by the companyrse 2
 a . the order passed by the magistrate in each of the other
two companyrses that is  1  and 2 b  follows a companyclusion 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 companyrt. the reasons which have weighed with me in companying to
the companyclusion arrived at in the last paragraph are equally
applicable to the companysideration 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 companystitutes it an act of a companyrt. for a tribunal to be acting as a companyrt it is number
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 companyrts companystituted as such by
the legislature. reference may here be made to interlocutory
orders issuing temporary injunctions or staying
proceedings in a subordinate companyrt or dispossession of a
party by civil companyrts 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
numberice. 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 companyfirmed 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 companyrt does number
act as a companyrt 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 companye in agreement with the police report does number
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 companynizance of the offence
the accused companyes into the picture and thereafter shall have
the right to be heard and to adduce evidence in support of
his innumberence. viewed in this companytext all orders passed by
a magistrate acting judicially  such as orders of bail and
those passed under subsection  3  of section 173 of the companye
discharging an accused or orders taking companynizance of the
offence companyplained 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
cannumber 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
number companysider it necessary to go into the details of the
conflict of opinion amongst the high companyrts in india in
relation there to but i would touch briefly thereupon. in j.

boywalla v. sorab rustomji engineer beaumont c. j.
speaking for himself and macklin j. emphatically held that
a magistrate while passing a order releasing an accused
person on bail or discharging him in pursuance of a report
submitted by the police to the effect that the evidence was
insufficient to sustain the charge acts judicially and
therefore as a companyrt within the meaning of that term as used
in clause  b  of sub-section  1  of section 195 of the companye. that decision was followed by a division bench companysis-
ting of shah c. j. and baxi j. in state v. vipra khimji
gangaram in so far as an order discharging an accused person
as aforesaid is companycerned. beaumont c. j.s view in regard
to orders of bail was accepted as companyrect by m. c. desai

j. and mishra j. in badri v. 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 companyrt as also
by a full bench of the allahabad high companyrt in hanwant v.
emperor and by a full bench of the lahore high companyrt in
emperor v. hyat fateh din merits rejection for the reasons
stated above. in so far as this companyrt is companycerned the point
debated before us has number been the subject matter of any
decision and was expressly left open in m. l. sethi v. r. p.
kapur anr. in that case the appellant had lodged a report
with the police charging the respondents with certain
cognizable offences. while the police were investigating
into the report the respondent filed a companyplaint in the
magistrates companyrt alleging that the appellant had companymitted
an offence under section 211 of the indian penal companye by
falsely charging the respondent with having companymitted an
offence. the magistrate took companynizance of the respondents
complaint under section 190 of the companye. at that stage there
were numberproceedings in any companyrt number any order by any
magistrate for arrest remand or bail of the respondent in
connection with the appellants report to the police. later
however the police arrested the respondent in companynection
with the appellants 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 companyrt
of the magistrate to the effect that companynizance of the
offence under section 211 of the indian penal companye companyld number
be taken in view of the provisions of clause  b  of sub-
section  1  of section 195 of the companye. the magistrate
rejected the companytention and the order was companyfirmed by the
sessions companyrt and the high companyrt. while dismissing the
appeal this companyrt held that the companyplaint filed by the
respondent was companypetent and that clause  b  aforesaid did
number stand in the way of the magistrate taking companynizance in
as much as there had been numberproceedings of any kind
whatsoever before the magistrate in relation to the report
lodged by the appellant with the police till the companyplaint
was
filed by the respondent. reliance was placed on behalf of
the appellant in that case on badri vs. state  supra  and j.

boywalla v. sorab rustomji engineer  supra  but the
points decided in those cases were held number to arise in the
case then before the companyrt which made the following
observations in relation thereto
in the case of badri vs. state where an offence
under section 211 i.p.c. was alleged to have been
committed by the person making a false report against
the companyplainant 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 companynection
with that report to the police and therefore the
case was governed by section 195  1   b  cr. p. c.
and numbercognizance of the offence companyld be taken except
on a companyplaint by the magistrate who held the remand
and bail proceedings. we do number companysider it necessary
to express any opinion whether the remand and bail
proceedings before magistrate companyld be held to be
proceedings in a companyrt number need we companysider the
question whether the charge of making of the false
report companyld be rightly held to be in relation to those
proceedings. that aspect need number detain us because
in the case before us the facts are different. the
complaint for the offence under section 211 i.p.c. was
taken companynizance 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 numberorder by any
magistrate in the proceedings being taken by the police
on the report lodged by the appellant up to the stage
when the question of applying the provisions of section
195  1  b  cr. p.c. arose. these two cases are also
therefore of numberassistance to the appellant. on the
same ground the decision of the bombay high companyrt in

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 companyplaint under section 211

p.c. was sought to be filed. in anumberher part of the judgment deciding m. l.
sethi v. r. p. kapur  supra  this companyrt disagreed with the
view expressed in ghulam
rasul v. 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 companyrt 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 companysequence of this be a trial in the
criminal companyrt 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 companyrt
thus
the decision in the words in which the learned
judge expressed himself appears to support the argument
of learned companynsel 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 companyplaint
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 companyplaint
should be filed by the magistrate simply because a
subsequent proceeding following the police
investigation was companytemplated we companysider that his
decision cannumber be accepted as companyrect. these observations cannumber 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 numbersufficient evidence was available against
the accused such order companyld number be regarded as a judicial
proceeding and the magistrate passing it companyld number be given
the status of a companyrt. 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 numberproceeding at all had been taken by
the magistrate clause  b  of sub-section  1  of section 195
of the companye 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 companyrt companyld number agree with him. anumberher fact
which may be numbered in this companynection is that judgment in
ghulam rasul vs. emperor  supra  does number state in
unmistakable terms that any order
of cancellation of the case was passed by the companycerned
magistrate and all that is mentioned is that the police had
reported the case for cancellation which may well mean
that really numberorder 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 companyplained of
amount to proceedings before a companyrt all that remains to be
seen is whether the offence under section 211 of the indian
penal companye which is the subject matter of the companyplaint
against trivedi can be said to have been companymitted 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 companyclusion that the said offence must be
regarded as one companymitted in relation to those proceedings. this requirement of clause  b  aforementioned is also
therefore fully satisfied.