# • • ' • ' • KAMLAPATI TRIVEDI v. STATE OF WEST BENGAL

- **Citation:** [1979] 2 S.C.R. 717
- **Court:** Supreme Court of India
- **Decided:** 1978-12-13
- **Case number:** Criminal Appeal No. 45 of 1972
- **Bench:** Jaswant Singh, P. s. KAILASAM, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kamlapati-trivedi-v-state-of-west-bengal-7625
- **Pages:** 40

## Headnote

717
Code of Crindnal Procedure 1898-S. 195(1) (b )-Scope of-'In relation
to any proceedings in any court' meaning of-Police submitting final
report
under s. 173 Cr. P.C. and Magistrate passing
an
order
thereon-Whether
judicial order-Attracting the bar in s. 195 ( 1) (b).
Section 195(1)(b) of the Code of Criminal Procedure provides that no
court shail take cognizance of any offence punishable
under
any
of
the
sections enumerated therein (one of which is s. 2'11) if such offence is alleged
to have been committed in or in relation to any proceedings in any court.
The appellant filed a complaint with the police that the accused criminally
trespassed, assaulted and abused him in filthy language and committed
theft
of money and valuable documents of the school of which he was the secre~
tary. After investigation the police found that there was no evidence against
the accused and therefore, the Mlagistrate discharged all the accused.
One of the accused thereupon preferred a complaint under s. 211
IPC
.alleging that the appellant had instituted criminal proceedings with the intent
to cause iujury to him and others knowing that there was no just or lawful
ground and thereby caused pecuniary loss Gnd agony to him.
The appellant moved the High Court• for quashing the proceedings before
the Magistrate because in the absence of a complaint in
writing
of
the
Magistrate himself, the Magistrate had no jurisdiction to take cognizance ot
the offence under s. 211 !PC in view of the provisions of s. 195 (I) (b) of
the Cr. P.C. The High Court refused to quash the proceedings.
A
B
c
D
E
On further appeal it was contended that an order passed by a Magistrate
F
on a report submitted by the police under s. 173 Cr. P. C. being a judicial
order the bar of s. 195(1)(b) would be attracted.
Allowing the appeal,
HELD : Per
Koshal,
J.
(with
whom
las"lant
Singh,
J.
agreed)
1. The con1plaint against the appellant was in respect of an offence alleged to
G
have been committed in relation to a proceeding in court. In taking cognizance of it the Magistrate acted in contravention of the
bllr contained
in
s. 195 (1) (b) because there was no complaint
in
writing
either
of
the
Magistrate or of a superior court. (756 D]
2. Taking cognizance of any offence by a Magistrate under s. 190 is not
a condition precedent for him to be regarded '05 a
court.
Magistrates
are
specifically labelled as courts by s. 6 of the Code of Criminal Procedure and,
therefore, have to be regarded as such. It is true that a
Magistrate also
performs functions which are of an executive nature and do not fall within
H
A
B
c
D
E
F
G
H
718
SUPREME COURT REPORTS
[1979] 2 s.c.R.
the StJhere of judicial duties and it may plausibly be argued that in the
discharge of those functions he does not act as a court.
But then he cannot
but be regarded rui a court when he act!! judicially.
Sections 4.:96 and 497
which make provision for bail matters describe a Magistrate while dealing with
those matters as a court and these sections operate at all stages of a case including
that when the investigation has just started.
Neither in these sections nor
in s. 195 is there anything to show that the word "court" has been used in
two different senses and therefore the legislature must be deemed to
have
used it in one sens'e wherever it occurs in the Code. [743 B, 742 D-tfI
3. The well accepted position is that a court created by
~ statute, when
it performs judicial functions, would be deemed to act
Us
a
court;
and
Magistrates' courts are regarded as such unless they are performing executive
or administrative functions. [744 F-G].
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, [19311
AC 275 PC and Halsbury's Laws of England (3rd Edn.) Vol. 9
p.
342;
Virinder Kumar Satyawadi v. The State of Puniab, [1955] 2 SCR 1013; Smt.
Ujiam Bai v. State of U .P., [1963] 1 SCR 778; referred to.
4. Tue source of power exercised by the authority, i.e.
whether
it
is
executive or judicial power, would make all the differe

## Text

_Characters 0–39,965 of 106,243. This is a partial read: ask again with offset=39965 for what follows._

• •
'
•
'
•
KAMLAPATI TRIVEDI
v.
STATE OF WEST BENGAL
December 13, 1978
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.]
717
Code of Crindnal Procedure 1898-S. 195(1) (b )-Scope of-'In relation
to any proceedings in any court' meaning of-Police submitting final
report
under s. 173 Cr. P.C. and Magistrate passing
an
order
thereon-Whether
judicial order-Attracting the bar in s. 195 ( 1) (b).
Section 195(1)(b) of the Code of Criminal Procedure provides that no
court shail take cognizance of any offence punishable
under
any
of
the
sections enumerated therein (one of which is s. 2'11) if such offence is alleged
to have been committed in or in relation to any proceedings in any court.
The appellant filed a complaint with the police that the accused criminally
trespassed, assaulted and abused him in filthy language and committed
theft
of money and valuable documents of the school of which he was the secre~
tary. After investigation the police found that there was no evidence against
the accused and therefore, the Mlagistrate discharged all the accused.
One of the accused thereupon preferred a complaint under s. 211
IPC
.alleging that the appellant had instituted criminal proceedings with the intent
to cause iujury to him and others knowing that there was no just or lawful
ground and thereby caused pecuniary loss Gnd agony to him.
The appellant moved the High Court• for quashing the proceedings before
the Magistrate because in the absence of a complaint in
writing
of
the
Magistrate himself, the Magistrate had no jurisdiction to take cognizance ot
the offence under s. 211 !PC in view of the provisions of s. 195 (I) (b) of
the Cr. P.C. The High Court refused to quash the proceedings.
A
B
c
D
E
On further appeal it was contended that an order passed by a Magistrate
F
on a report submitted by the police under s. 173 Cr. P. C. being a judicial
order the bar of s. 195(1)(b) would be attracted.
Allowing the appeal,
HELD : Per
Koshal,
J.
(with
whom
las"lant
Singh,
J.
agreed)
1. The con1plaint against the appellant was in respect of an offence alleged to
G
have been committed in relation to a proceeding in court. In taking cognizance of it the Magistrate acted in contravention of the
bllr contained
in
s. 195 (1) (b) because there was no complaint
in
writing
either
of
the
Magistrate or of a superior court. (756 D]
2. Taking cognizance of any offence by a Magistrate under s. 190 is not
a condition precedent for him to be regarded '05 a
court.
Magistrates
are
specifically labelled as courts by s. 6 of the Code of Criminal Procedure and,
therefore, have to be regarded as such. It is true that a
Magistrate also
performs functions which are of an executive nature and do not fall within
H
A
B
c
D
E
F
G
H
718
SUPREME COURT REPORTS
[1979] 2 s.c.R.
the StJhere of judicial duties and it may plausibly be argued that in the
discharge of those functions he does not act as a court.
But then he cannot
but be regarded rui a court when he act!! judicially.
Sections 4.:96 and 497
which make provision for bail matters describe a Magistrate while dealing with
those matters as a court and these sections operate at all stages of a case including
that when the investigation has just started.
Neither in these sections nor
in s. 195 is there anything to show that the word "court" has been used in
two different senses and therefore the legislature must be deemed to
have
used it in one sens'e wherever it occurs in the Code. [743 B, 742 D-tfI
3. The well accepted position is that a court created by
~ statute, when
it performs judicial functions, would be deemed to act
Us
a
court;
and
Magistrates' courts are regarded as such unless they are performing executive
or administrative functions. [744 F-G].
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, [19311
AC 275 PC and Halsbury's Laws of England (3rd Edn.) Vol. 9
p.
342;
Virinder Kumar Satyawadi v. The State of Puniab, [1955] 2 SCR 1013; Smt.
Ujiam Bai v. State of U .P., [1963] 1 SCR 778; referred to.
4. Tue source of power exercised by the authority, i.e.
whether
it
is
executive or judicial power, would make all the difference in the determina~
tion of the question whether the authority acts as a court or merely as a
quasi judicial tribunal. [746 FJ.
S. Section 4(2) of the Code of Criminal Procedure provides
that
''all
words and expressions used herein and defined in the IPC and not herein·
above defined shall be deemed to have the meanings respectively attributed
to them by the Code."
In the maher of dispensation of
criminal
justice
the Indian Penal Code (which contains the substantive law) and the Criminal
Procedure Code (which deals with procedure) may be regarded as supplemen·
tary to each other. The term "Judge" and "Court of justice" used in ss. 19
and 20 of the Indian Penal Code give an indidition of the attributes of a
court as used in criminal law generally. Although the term "court of justice"
has not been used in the Cr. P.C. the expression "Judge" is used in s. 197
and, therefore, when a judge (induding a Magistrate) who is empowered to
act judicially and does so act, constitutes not merely a Court but a Court of
Justice. [747 E, D, C, F-G].
6. The caption of Chapter XIV is not deci(jive of the question whether a
particular provision contained in it is lim.ited to the supervisory jurisdiction
of the Magistrate in relation to the investigation being conducted by
the
police or deW.s with his judicial functions. as a court.
Although Chapter XIV
is headed "Information to the police and their powers to Investigate", it is
not confined to matters which are strictly concerned with
the
investigation
stage but also deals with situations arising after the investigation
has
been
finalised.
For example, s. 172(2) clearly deals with the use of police diaries
at an inquiry or trial which a Magistrate holds not in his administrative or
executive capacity but as a court. Similarly sections 169 and 170 are another
instance in point in which an order passed by a Magistrate is a judicial order
determining the rights of the parties after application of his mind. If thRt
•
<
1
(
•
•
• •
•
K. P. TRIVEDI V. WEST BENGAL
719
be so the order passed by the Magistrate in the instant case must be characA
terised as a judicial act and therefore as one performed in his capacity ns a
court. [748 D, 747 G-748 C, 750 G, 751 E]
7. For a tribunal to be acting as a court, it is not necessary
that the
parties must have a right of hearing of iadducing evidence at every stage of
the proceedings before it.
While passing interlocutory orders, issuing temporary injunctions etc., the presiding officer of a court does act as a court.
B
[751 H-752 BJ .
8. _All orders passed by a Magistrate acting judicially (such
as
orders
of bail and those pussed under sub-s. (3) of s. 173 of the Code discharging
the accused or orders taking cognizance of an offence complained of)
are
parts of an integral whole which may end with a definitive judgment after an
inquiry or a trial or earlier, laccording to the exigencies of the situation obtain·
C
ing at a particular stage and which involves, if the need be, the adducing of
evidence and the decision of the Magistrate on an appreciation thereof. They
cannot be viewed in isolation la11d given a character different from the entire
judicial process of which they are intended to form a part. [752 E·F].
Abhinandan Iha & Ors. v. Dinesh Mishra, [1967] 3 SCR 668; M. L. Sethi
v. R. P. Kapur & Anr., [1967] 1 SCR 520; referred to.
Kaila&am, J. (dissenting)
The restricted meaning given to "Court'' in s. 195(2) Cr. P.C. read along
with the conditions to be specified before a complaint is preferred
by
the
court, indicate that the proceedings before a Magistrate in which he agrees
with the report by the police under s. 169 Cr. P.C. and the proceedings in
D
remand or bail applications during investigations will not amount to proceed·
E
ings 'in or in relation to court.' [737 H].
1. The policy behind the bar against institution of criminal proceedings by
a private party is that when offences are committed against lawful authority
or false evidence is given or offence is committed against public justice,
it
should be the concerned authority that should prefer a complaint
!and
no
one else. [723 HJ.
2. A court is charged with a duty to decide disputes in a judicial
manner
and declare the rights of parties in a definitive judgment. To decide in a
judicial manner involves that the parties are entitled as a matter of right to
be heard in support of their claim and to adduce evidence in proof of it.
It
::ilso imparts a•,1 obligation on the part of the authority to decide the matter
on a consideration of the evidence adduced
and
in accordance
with
law
[725 B-C].
3. It is settled la'v that when a ~fagistrate applies his mind on complaints,
he must be held to have taken cognizance of the offence mentioned in
the
complaint but when he applies his mind not for such purpose but for
the
purpose of ordering investigation under s.156(3) Cr. P.C. or issues a search
warrO:nt for the purpose of investigation, he cannot be said to have
taken
F
G
cognizance of any offence, [727 E].
H
4. When the Magistrate receives a report under s. 169 of the Cr. P.C. that
there is not sufficient evidence or reasonable ground for suspicion
and agrees
720
SUPREME COURT REP OR TS
(1979] 2 s.c.R.
A
with it, he may be doing so in exercise of his judicial function but the question is whether he is acting as a court.
Most of the requirement of a court
are lacking at this stage. [727 F, 729 CJ.
B
c
D
E
F
G
H
5. To be classified as a court, an authority must be charged with a duty
to decide disputes in a judicial manner and dedare the rights of parties in
a definitive judgment.
This involves that the parties are entitled ns a matter
of right to be heard in support of their claim and to adduce evidence in proof
of it and an obligation on the part of the authority to decide the matter on
a consideration of the
evidence adduced and in accordance with law.
[729 D-E].
6. Though the Magistrate in deciding whether or not to accept the report
of a police officer under s. 169 Cr. P.C. may be exercising his judicial
mind
and though there may be some of t11e trappings of the court, at thh stage he
cannot be termed as a court 'vithin the provisions of s. 195(2) a·.P.C.
.i\t
thi$ stag'e the rights of the parties arc not finally decided as the complainant
is entitled to file a complaint directly to the !\-fagistrate. The person~ accused
are not before the Magistrate and neither the complainant nor the
accused
are entitled to be heard or to adduce evidence before the Magistrate at this
stage. It cannot, therefore, be said that the Magistrate has a duty to decide
the 111atter on a consideration of the evidence adduced before him. [72.9 B, F·HJ
7. The proceeding under s. 167 Cr. P.C.
is
during
investigation. The
Magistrate to whom the accused is produced can from time to time. authorise
detention of accused in such custody as such Magistrate thinks fit l'or a term
not exceeding 15 days in
whole. If he has not the jurisdiction to try the
case or commit it for trial but considers further detention is neet:ssary,
he
may order the accused to be forwarded to a Magistrate having jurisdiction.
In investigation by the police the Magistrate is associated in
a supervisory
capacity. The action taken by the Magistrurte cannot be taken to
be
that
of a court for the Magistrate who has no jurisdiction to try the ':ase has a
limited power. The trial commences only after the offence has been taken
cognizance of. [735 E-F]
8. Section 496 provides as to when bail IOOy be taken
in
non-bailable
offences.
The provisions of s. 496 and s. 497 speak of an accus,~d person
in custody charged with a non·bailable offence being produced b1!fore court
at any stage of the proceedings. The section deals with the exercise of the
power of a court at any stage of proceedings when the accused
i~
brought
before a Court while in the custody of the police officer. Though there may be
some trappings of a court and the section itself mentions the \Vord 'court', the
requirements for being a court for the purpose of s. 195(2) have not
been
satisfied. [735 H-736 DJ
9(i) There is a conflict bet\veen various High Cour,ts as
to
whether a
complaint is necessary when on a police report under s. 169 the
Magistrat.e
does. not take any furth'er
actio~l.
The
Bombay,
Saiurashtra
and
Andhra
Pradesh High Courts in 1946 Born. 7(11), 1952 Saurashtra 67(68;
and 1969
AP 281 (287) have held that a Magistrate passing an
order on a
final
report of police under s. 173 referring the case as false should be deemed to
be a court passing a judicial order disposing of the information to the police,
and that in such a case, the cofilplaint of the Magistrate is neces~ary for the
prosecution of the informant under s. 211 JPC.
The Madras, ('a]cutta and
•
<
!
•
•
•
K. P. TRIVEDI v. WEST BENGAL (laswant Singh, l.)
72 I
Allahabad High Court in AIR 1934 Mad. 175, AIR 1948 All. 184 FB
and
A
AIR 1916 Cal. 593 have held the other view.
(ii) When no further proceedings
are tak.e11 by the Magistrate or receipt of a police report under s. 169 there
is no proceeding in or in relation to any court fl.nd, therefore, no complaint
by the C(IUrt is necessary. [733 G-734 BJ.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 45 of
1972.
Appeal by Special Leave from the
18-8-71 of the Calcutta High Court in
1970.
Suk11ma1 Ghosh for the Appellant.
Judgment and Order dated
Cr!. Revision No. 1006 of
M. M. Kshatriya and G. S. Chatterj:e for the Respondent.
Jaswant Singh, J.
concurred with :he
Opinion of Ko>hal,
J.
Kailasam, J. gave a dissenting Opinion.
J ASWANT 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 3gree with the view expressed
by my learned Brother Kailasam, I >Ill inclined to agree with the
opinion ct and the conclusion
arriv~d 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
iri
Criminal Revision No. 1006 of 1970 by which it refused to quash
the proceedings which were taken cognizance of by the Magistrate,
on a complaint given by one Satya Narayan Pathak.
Satya Narayan Pathak is the Secretary of Bhartiya Primary
School in ,Howrah.
The appellan,t before us, Kamlapati Trivedi,
was a Head Teacher of the Bhartiya Primary School.
On
18th
April, 1970 Satya Narayan Pathak served a Notice on the appellant
calling upon him to show cause why h~ should not be found guilty
of negligence of
duty.
On receipt
of the Notice, the
appellant
attempted to remove certain records from the school but he was prevented.
On the same day, that is, on 18th April, 1970 the appellant
complained in writing to the Officer In-charge of Bally Police Station,
Howrah at 21.40 hours that Satya Narayan Pathak and others criminally trespassed, assaulted and abused him in filthy language and
committed theft of money and valuable documents of the_school. The
Police treating the complaint of the iiQpellant as First Information
Report took cognizance of an offence under Sections 147, 448 and
B
c
D
E
F
G
H
A
8
c
D
E
F
G
ff
722
SUPREME COURT REPORTS
(1979] 2 S.C.R.
379 I.P.C. and registered it.
A warrant of arrest was issued against
Satya Narayan Pathak and others.
Salya Narayan Pathak attended
the Coi;rl on 21-5-1970 and
21-7-1970 the dates
fixed for submission of the Police report. The Police
Officer
who
investigated
the case on finding no evidence against Satya Narayan Pathak and
others, named as accused, submitted a final report and the magistrate
agreeing with the report discharged all the accused.
As Satya Narayan Pathak felt that the appellant instituted crim1,
nal proceedings with intent to cause injury to him and of1ers, for
offences under Sections 147, 448 and 379 knowing that there
was
nn just or lawful ground and had caused pecuniary loss and agony
to him, he preferred a complaint against the appellant for offences
under Sections 211 and 182 of the I.P.C. on 20th Octobe!·,
1970.
The learned Magistrate took cognizance of the case ~nd S'Jmmoned
the apj::ellant under Section 211 of the Indian Penal Cod.;,
fixing
10th December, 1970 for appearance of the appellant.
On
16th
November, 1970 the appellant appeared in court and wa:. released
on bail. The appellant
moved the
High Court of Calcutta
for
quashing the proceeding of the Magistrate on the ground that the cognizance taken by the Magistrate was bad aod withom jurisdiction for
non-compliance of the provisions 0f Section 195 (1) (b) of Criminal
Procedure Code.
The learned Judge refused to quash the proceedings and discharge the accused, by judgment dated 18th August, 197 l.
Against the order of the Single Judge of the High Court, the present
appeal to this Court has been filed.
Toe main ground of attack in this appeal is that t.!;ic High Court failed to appreciate the meaning of the words "in relation to any proceedings in any court" in Section 195(1) ('b) of the Code of Criminal Procedure. It is submited that when a final report was submitted by the
Police under Section 173 of Criminal Procedure Code and lhe Magistrate passed an order it would be a judicial order and the bar under
Section 195 ( 1) (b) would be attracted.
The qnestion that arises for consideration is whether on the facts of
the case the bar against taking cognizance in Section 19:i (1) (b) is
attracted.
Section 195(1)(b) so far as it is relevant for ·:he purpose
of this case may be extracted :
"195(1) No court shall take cognizance
(a). . . . . . . . . . . . . . . . . . . . . ...
(b) of any offence puni'shable under any of the following sections of the same Code, namely, i:ections ·
-~
•
• '
•
'
•
_j-
'
•
I
K. P. TRIVEDI v. WEST BENGAL (Kailasam, J.)
723
193, 194, 196,, 195, 199, 200, 205, 206,
207,
208, 209, 210, 211 and 228, when such offence is
alleged to have been committed in, or in relation to, any proceeding in any Court, except on the
complaint in writing of such Court or of
some
other Court to which such Court is subordinate; or
(c) ....................... .
(2) In clauses (b) and (c) of sub-section (1), the
term
"Court" (includes) Civil, Revenue or Criminal Court,
but does not include a Registrar or Sub-Registrar under
the Indian Registration Act, 1877.
While Section 190 of the Criminal Procedure Code enumerates the
conditions requisite for initiation of proceedings, Section 195 bars taking cognizance of certain offences except on complaint by authorities
specified in the Section.
Section 195 ( 1) (a) requires that the complaint
should be by a public servant if the offences complained of are under
Sections 172 to 188 of the Indian Penal Code.
Sub-section (1) (b)
refers to offences under Sections 193, 194, 195, 196, 199, 200,, 205, 206.
207, 208, 209, 210, 211 and 228 and requires the complaint in writing
of the Court before whom the offence is alleged to have been committed
in or in relation to any proceeding in any Court. Sub-section (c) relates
to offences under Sections 463, 471. 475 or 476 when the offence is
committed by a party to any proceeding in any Court in respect of a
document produced or given in evidence in such proceeding a complaint in writing by the court is required. Sections 172 to 190 of the
Indian Penal Code deal with offences constituting contempt of lawful
authority of public servants. The bar to taking cognizance of offences
under Sections 172 to 188 except on a complaint by the public servant
is laid down in Section 195(1) (a) of the Code of Criminal Procedure.
Chapter XI, of the Indian Penal Code relates to false evidence and
offences against public justice.
The cases of offence such as under
Section 463, 471, 475 or 476 alleged to have been committed by a
party in a proceeding in any court in respect of a document produced
or given in evidence in such proceeding, the complaint in writing of
such court is required. The policy behind the bar for institution of
criminal proceedings by a private party is that when offences are committed against lawful authority or false evidence is given or offence
committed against public justice, it should be the concerned authority
that should prefer a complaint and no one else.
·
A
B
c
D
E
F
G
H
A
B
c
D
724
SUPREME COURT REPORTS
[1979] 2 s.c.R.
In this appeal we are concerned with the question whether the offence
under Section 211 I.P.C. is "committed in or in relation to any proceeding in any court". Before I deal with
the question whether the
offence is committed in or in relation to any proceeding in any court, I
have determined the meaning of the word 'court' for the purpose~ of this
Section. Sub-section (2) to Section 195 states that in clauses
(b)
arrd (c) of sub-section (1), the term "Court includes a Civil, Revenue
or Criminal Court, but does not include a Registrar or Sub-Registrar
under the Indian Registration Act, 1877.
It may be noted that the
word 'includes' was introduced by an amendment to sub-clause i[b) Act
18 of 1923 instead of the word "means".
In the Criminal Procedure
Code 1974 the word 'means' has been introduced in the place of 'includes'. To some extent the use of the word 'includes' may widen the
scope of the definition. In Halsbury's Laws of England, third edition,
volume 9 at page 342, the meaning of court is given. At page 343 it is
sl:!tcd : "many bodies are not courts, although they have to decide
questions, and in so doing have to act judicially in the sense that the
proceedings must be conducted with fairness and impartiality". Lord
Sankley in Shell Co. of Australia Ltd. vs.
Federal Commissioner of
Taxation(') has enumerated some negative propositions as to when a
Tribunal is not a court. The learned Judge observed "The authorities
are clear to show that there are Tribunals with many of the trappings
of a court which nevertheless are not courts in the strict sense of exerE
cising judicial power''. In enumerating the propositions Lord Sankey
obs~rved:
"In that connection it may be useful to enumerate mine
negative propositions on this subject : ( 1) A tribunal is not
necessarily a Court in this strict sense because it gives a final
F
decision.
(2) Nor because it hears witnesses on oath. (3)
Nor because two or more contending parties appear before it
between whom it has to decide.
(4),Nor because it gives desion's which affect the rights of subjects.
(5) Nor because
there is an appeal to a Court. 06) Nor because it is a body to
G
H
which a matter is referred by another body".
In enumerating the negative propositions the learned Judge relied
on the decision in Rex. vs. Electricity Commissioners. (2)
In Shri Virinder Kumar Satyawadi vs. The State of Punjab.(')
Venkatarama Ayyar, J. speaking for this Court quoted with approval
the decision in Shell Co. of Australia (supra) and observed that the disI (1931) A. C, 275, P. C. at pp. 296, 297
(2) [1924] I K. B. 171
(3) [1955] 2 S. C.R. 1013
>
•
<
•
•
•
•
K. P. TRIVEDI v. WEST BENGAL (Kailasam, J.)
725
tinction between Courts and tribunals exercising quasi-judicial functions
is well established, though whether aii authority constituted by a particular enactment fall's within one category or the' other may, on the provisions
of that enactment, be open to argument. After referring to the various
decisions, the learned Judge observed "it may be stated broadly that
what distinguishes a Court from a quasi-judicial tribunal is that it is
charged with a duty to decide disputes in a judicial manner and declare
the rights of parties in a definitive judgment. To decide in a judicial
manner involves that the parties are entitled as a matter of right to be
heard in support of their claim and to adduce evidence in proof of it.
It also imparts an obligation on the part of the authority to decide the
matter on a consideration of the evidence adduced and in accordance
with law.
This view was accepted by the Supreme Court in Smt. Ujjam Bai
A
B
c
v. State of Uttar Pradesh(!) where Justice Hidayatullah observed that
though the taxing autl)orities follow a pattern of action which is considered judicial, they are not converted into courts of civil judicature
D
and they still remain instrumentalities of the State and are within the
definition of the State.
The answer to the question as to what is 'court' in the Criminal
PrOO'..dure Code is not free from difficulty for in many places the word
Magistrate as well as court is used in identical situations. Section 6 of
the Criminal Procedure Code states that besides the High Courts and
the Courts constituted under any law other than this Code for th,e time
being in force there should be five classes of Criminal Courts in India,
namely: (i) Courts of Sessions; (ii) Presidency Magistrate, (iii) Magistrates of the first class (iv) Magistrates of the second class, (v) Magistrates of the third class. Criminal courts according to this section therefore, consist of courts specified besides the High Court and courts that
are constituted under any other law other than Criminal Procedure Code .
The Code of Criminal Procedure provides not merely judicial enquiry
into or trial of alleged offences but also for prior investigation thereof.
Section 5 of the Code provides that all offences under Indian Penal
Code shall be investigated, inquired into and tried and otherwise dealt
with in accordance with the provisions hereinafter contained. For the
purposes of investigation offences are divided into two categories 'cognizable' anr' " >n °ognizable. When information of the commission of a
cognizable •''e· ."' is received or such commission is suspected,
the
appropri ·
po1 · • c'licer has the authority to enter on investigation.
(I) [1963] 1 S.C.I 778.
8-40 SCl/79
E
F
G
H
A
B
c
D
E
F
726
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
In case of non-{X)gnizable offence the officer shall not investigate withaut
the order of a competent Magistrate. According to scheme of the Code
investigation is preliminary to a case being put up for trial for a cognizable offence. Investigation starts ou an information relating to commission of an offence given to an officer in-charge of Police Station and
recorded under Section 154 of the Code. Investigation consists generally of various step~, namely proceeding to the spot-ascertainment of
facts and circumstances of the case, discovery and arrest of susp~cted
offender, collection of evidence relating to the commission of the offence
which may consist. of examination of various persons incluC:i 1g the
accused, and the reduction of the statement into writing such as places
and seizure of things and formation of opinion as to whether on material
collected there is a case to place the accused before the Magistrate
for trial and filing of the, charge-sheet under Section 173 of tile Criminal Procedure Code. After the investigation is completed and a chargesheet is filed under Section 173 of the Criminal Procedure Code the
question of taking cognizance arises.
Section 190 of th:'> Criminal Procedure Code lays down conditions necessary for initiation of proceedings. It provides for that any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence.
(a) upon receiving a complaint of facts which constitute
such offence;
(b) upon a report in writing of such facts made by any
police officer; and
i''
( c) upon information received from any person
other
than a police-officer or upon his own knowledge or
suspicion, that such offence has been committed.
One mode of taking cognizance by the Magistrate is upon a report
in writing of such facts made by any police officer.
This stage
is
reached when the police officer submits a report under Sedon 173.
G
When the Police Officer upon investigation farms an
<'pin· 0n
that
there is sufficient evidence or reasonable ground be shall forward the
case to the Magistrate empowered to take cognizance of foe offence
upon a PoEce report.
Under Section 190 of the Cr;m'nal Pr8'cdure
Code, if the Magistrate to whom the report is sent by the Pcfre Officer,
agrees with the opinion of the police <'fficer, be pmcceo1s to
take
H
cognizance, and issues process under Section 204. The jmlic:al opinion
is unanimous that when once Magistrate taking co('.n;zanrc of an
offence finds that there is 'su'f1cicnt ground for proceeding a.·d issues
.
.
•
•
..
'
•
•
K, P. TRIVEDI v. WEST BENGAL (Kailasam, J.)
727
summons or a warrant as the case may be, he takes cognizance, and
A
the trial begins, and further proceedings will be nndoubtedly before a
criminal court.
In Jamuna Singh and others v. Bhadai Sah,(') Das Gupta, J.
observed "The Code does not contain any definition of the words
'institution of a case'. It is clear, however, and indeed not disputed,
B
that a case can be said to be instituted in a court only when the court
takes cognizance of the offence alleged therein." When
once this
stage is reached the requirement of Section 211 of the Indian Penal
Code "institutes or causes to be instituted any criminal proceeding"
is satisfied. The second part of &ction 211 I.P.C. refers to falsely
charging a person with having committed an offence.
A person falsely
C
charging another of a cognizable offence before a police officer will
come within the mischief of the second part of the Section.
The crucial question that arises in this cai:e is whether it can be
Baid that when a person falsely charges another person of a cognizable
offence before a Police Officer and when the Police Officer upon
investigation finds that there is no sufficient evidence or reasonable
ground for suspicion to justify the forwarding of the accused to the
Magistrate under Section 169 and the Magistrate agrees with him, an
offence under Section 211 is committed in or in relation ot any proceeding in any court'. It is settled Jaw that when a Magistrate applies
his mind under Chapter XVI that is on complaints, he must be held
to have taken cognizance of the' offence mentioned in the complaint but
when he applies his mind not for such purpose but for purpose of
ordering investigation under Section 15 6 ( 3) or issues a search warrant
for the purpose of investigation, he cannot be said to have taken cognizance of any offence vide R. R. Chari v. State of U.P. (2)
and
in
G01pal Das v. State of Assam(').
When the Magistrate receives
a
report under Section 169 of the Criminal Procedure Code that there
is not sufficient evidence or reasonable ground for suspicion and
agrees with it, he may be doing so in exercise of his judicial function
but the question is whether he is acting as a court.
D
E
I!'
In Abhinandan Jha & Ors. v. Dinesh Mishra (4) this Court has
G
pointed out the dilference 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
---·----
(1) [1964] 5 S.C.R. 37.
( 2) [1911] S.C.R. 312
0
(3) A.I.R. [!961] S.C. 986.
(4) [19i\7J 3 S.C.R. 668.
A
B
c
D
E
F
G
H
728
SUPREME COURT REPORTS
[1979] 2 s.c.R.
summary. This court observed that when the police submitted a report
that no case has been made out for sending up accused for trial it is
not open to the Magistrate to direct the police officer to file a chargesheet. In such circumstances the Magistrate is not powerless as it is
open to him to take cognizance of an offence on the report submitted
by the Police under Section 190(1) (c) of the Criminal Procedure
Code. Dealing with the position of the Magistrate when a report is
submitted by the police that no case is made out for sending a case for
trial the court observed that it is open to the magistrate to agree with
the report and close the proceedings. Equally it will be open to the
Magistrate if he takes a different view to give directions to the police
under Section 163 (1) to make fbrther investigations. After receiving a
report from the police on further investigation if the Magistrate fom1s
an opinion on the fact that it constitutes an offence he may take cogllizance of an offence under Section 190(1) (c) notwithstanding the
opinion of the police expressed in final report. This court held in
conclusion that there is no power expressly or impliedly conferred on
the Magistrate under the Code to call upon the police to subrllit a
charge-sheet when they have sent a report under Section 169 of the
Code that there is no case made out for sending the case for trial. The
same view is expressed in the decision in Kam/a Prasad Singh v. Hari
Nath Singh and another( 1). In R. N. Chatterji v. Havildar Kuer
Singh( 2 ), A. N. Ray J. as he then was, followed the decision in
Abhinandan Iha & Ors. v. Dinesh Mishra (supra) and held that the
provisions of the Criminal Procedure Code do not empower the Magistrate to direct the police officer to submit a charge-sheet but if he is of
the opillion that the repot submitted by the police requires
further
investigation, the Magistrate may order investigation, under Section
163 of the Criminal Procedure Code. It was held that directing further
enquiry is entirely different from asking police to submit a charge-sheet.
The only source open for the Magistrate if he is not satisfied with the
police report under Section 169 is to take cognizance of an offence
under Section 190(1) (c) of the Criminal Procedure Code. It may be
noted that in M. L. Sethi v. R. P. Kapur & Anr. ('), it was held that
if the Magistrate disagrees with the opiuion of the police he may proceed to take cognizance on the facts stated in the police under Section
190(1) (b).
It is clear that when a Magistrate applies bis mind to the contents
of a complaint before him for the purpose of proceeding under Section
(1) [1967] 3 S.C.R. 828.
(2) [1970] 3 S.C.R. 716.
(3) [1967] I S.C.R. 520.
•
" '
_)-
•
•
•
K. P. TRIVEDI v. WEST BENGAL (Kai/asam, l.~
729
200 and the other provisions of the Code following it, he is taking
cognizance of an offence as held by five judges Bench decision of this
Court in Mowu v. The Superintendent, Special Jail, Nowgong, Assam
and others('). The position regarding the case in which Magistrate
accepts a report under Section 169 Criminal Procedure Code is
different.
On an analysis of the various sections, it appears that a
report under Section 169 of the Cr. P. C. and the magistrate agreeing
with it, are proceedings under Chapter XIV which relates to information to the police and their power to investigate. The Chapter
provides for supervision by the Magistrates of the investigation by the
police. It has been laid down that Magistrate has no option except
to agree with the report of the Police Officer unless he proceeds to
take cognizance of the offence under Section 190(1) (c). Though the
Magistrate in deciding whether to accept the report or not may be
exercising his judicial mind, it cannot be said that he is acting as a
court.
The Magistrate acting at this stage cannot be said to fulfil the
positive requirements enumerated by Venkatarama Ayyar, J. in Shri
Virinder Kumar Satvawadi v. The State of Punjab (supra). To be
classified as court it must be charged with a duty to decide disputes in
a judicial manner and declare the rights of parties in a definitive
judgment and to decide in a judicial manner. It involves that the
parties are entitled as a matter of right to be heard in support of their
claim and to adduce evidence in proof of it and an obligation on the
part of the authority to decide the matter on a consideration of the
evidence adduced and in accordance with law.
As pointed out by
Lord Sankey in Shell Co. case (supra) though there may be some of
the trappings of the court the magistrate at this stage cannot be termed
as a court within the provisions of Section 195(2) Cr. P. C.
The
magistrate may decide the question finally which may affect parties but
that is not enough. Even when a tribunal bears witnesses on oath
and decides rights of parties and a right of appeal is provided, it may
not. as observed by Lord. Sankey, become a court. Most of requirements of a court are lacking when the Magistrate agrees with the report
of the police officer under Section 169. At this stage the rights of the
parties are not finally decided as the complainant is entitled to file a
complaint directly to the Magistrate. The persons accnsed
are not
before the Magistrate and neither the complainant nor the accused are
entitled to be heard or to adduce evidence before the Magistrate at this
stage. It cannot be said that the Magistrate has a duty to decide the
matter on a consideration of the evidence adduced before him.
(I) [1971] 3 s.c.c. 936.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
B
730
SUPREME COURT REPORTS
[1979] 2 s.c.R.
Taking into account the scheme of the Criminal Procedure Code,
the function of the Magistrate in agreeing with a report under Section
169 can only be said to be in the course of investigation by the police.
In Chapter XIV which relates to information to the police and their
powers to investigate, the Magistrate having jurisdiction over the area
and empowered to take cognizance is given certain supervisory powers.
Thus the Police Officer incharge of Police Station is required to refer the
informant to the Magistrate when information as to a non-cognizable
offence is received by him.
The Police Officer shall not investigate
a non-cognizable case without the orders of the Magistrate though the
Police Officer is entitled to investigate a cognizable offence without
the order of the Magistrate.
The Magistrate under Section 190 is
entitled to order an investigation into a cognizable offence.
Section
157 Cr. P.C. requires the officer incharge of the Police Station to
send a report to the Magistrate empowered to take cognizance of the
offence of which he has received information.
Under· Section
159
Crl.P.C. the Magistrate receiving a report under Section 157 may proceed or depute any magistrate subordinate to him to proceed to hold a
preliminary inquiry into the case.
Section 164 empowers Presidency
Magistrate or any Magistrate of first-class or 1my Magistrate of second
class specially empowered by the State Government to record a statement or confession made to him in the course of an investigation
under this Chapter. When a search is conducted by a Police Officer,
he is required to send copies of the record to the nearest Magistrate
empowered to take cognizance.
Secti01L 167 of the Crl.P.C. requires
that when investigation cannot be completed within 24
hours
and
when there are grounds of believing that the accusation or inforn1ation
is well-founded, the Officer incharge of the Police Station shall transmit to the nearest Magistrate the copy of the entries in the diary relating to the case and forward the accused to such Magistrate.
The
Magistrate to whom the accused is forwarded is empowered to authorise the detention of the accused in such custody as he thinks fit for
a term not exceeding 15 days.
If the period is to exceed 15 days he
is required to forward the accused to the Magistrate having jurisdiction.
When an investigation is completed and when the Police Officer is of
the 9pinion that there is sufficient evidence,
he shall forward
the
accused to the Magistrate along with his report.
The final report of
the Police Officer is to be submitted under Section 173. It may be
noticed that Section 169 does not require the Police Officer to send
a report as he is required under Section 170 when he is of the opinion
that there is no sufficient evidence or reasonable ground of suspicion
to justify the forwarding of the accused to the Magistrate. The only
precaution he has to take is to take steps to ensure the appearance of
•
..
I
•
..
J
.. A-.
•
•
•
•
K. P. TRIVEDI v. WEST BENGAL (Kailasam, I.)
7 31
the accused in the event of the Magistrate empowered to take cognizance wants his presence.