# M. L. SETID v. R. P. KAPUR & ANR

- **Citation:** [1967] 1 S.C.R. 520
- **Court:** Supreme Court of India
- **Decided:** 1966-09-23
- **Case number:** Criminal Appeal No. 110 of 1965
- **Bench:** V. Ramaswami, V. BHARGAVA Al\D RAGHUDAR DAYAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-l-setid-v-r-p-kapur-anr-3873
- **Pages:** 23

## Headnote

B
Code of Criminal Procedure (Act 5 of 1898), s.
195(1) (b)-Comp/aint to Magistrate of offence under s. 211, Indian Penal Code-CognJ.
ZIJ/ICe, when barred.
The appellant lodged a report with the police charging the resP.Ondent
with certain cognizable offences on IOih December
1958. While the
police were investigating into the report the respondent filed a complaint
111 the Magistrate's Court, on II th April 1959 alleging that the appellant
had committed an offence under s. 211, Indian
Penal Code, by falsely
charging the respondent with having committed an offence. The Magistrate took cognizance of the respondent's complaint under s. 190 Criminal
Procedure Code. At that stage. there were no proceedings in any court
nor any order by any Magisuate for arrest, remand or bail of the respon·
dent in connection with the appellant's report to the p<ilice. Later, on
18th July 1959 the police arrested the respondent in connectibn with the
appellant's report and filed a charge sheet against him, but the case ended in an order of discharge. Thereafter,
the appellant applied to the
Magistrate's court praying that the court may not take cognizance of the
complaint to the court, filed by the respondent against the appellant, on
the ground that, cognizance of an offence under '· 211 l.P.C. could not
be taken in view of the provisions contained in
s. 195(1)(b) Cr.P.C.
Tho Magistrate rejected the contention and the order was confirmed by
the Sessions Court and the High Court.
In appeal to this Court,
HELD : The complaint filed by the respondent was competent and the
Magistrate was not barred from taking cognizance- of it by the provisions
of s. 195(l)(b) Cr.P.C.; and, in taking cognizance of it he only exercised
juri<diction rightly vested in him. [542 A-BJ
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(i) When a Magistrate is taking cognizance under s. 190 Cr.P.C., he
F
must examine the facts of the complaint before him and determine wh<>-
ther bis power of taking cognizance under the
section bas or has not
been taken away under s. 195(1) Cr.P.C.
In the case of an offence
under s. 211 l.P.C., s. 195(l)(b). Cr.P.C., provides that no court shall
take cognizance of ir when such offence is alleged to have been committed in, or in relation
to, any proceeding in any court,. except on
the
oomplaint in writing of sucb court or of some other court to which !'uch
court is subordinate. That is. s. 195(1) (b) Cr.P.C. bars taking cogniz.
G
ance if all the following circumstances exist, namely, (i) that the offence
in respect of which the case r.. brought falls under s. 211 I.P.C. (ii) that
there should be a proceeding in a court, and
(iii)
that the allegation
should be that the offence under s. 211 l.P.C. was committed in, or in
ltlation to such. a proceeding.
When
examining the question whether
there
is
any
proceeding
in
any
court,
three
situations
can
be
envisaged : (a) There may
be no proceeding in
any
court at
all; · (b) a proceeding in a court may actually be pending when
H
cognizance is taken of the offence under s. 211 I.P.C., and (e) though
there may be no proceeding pending in a court, there may haVe been
a
procuding which had already concluded and the offence under s. 211 ·may
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M. L. SETHI V •. R. P. KAPUR
521
be alleged to have ·been committed in, or in ·reJatioli' to, that proceeding.
In cases (b) and (c), the bar to taking cognizanee under s. 195(1) (b)
Cr.P.C. ·would come into operation. In case (a), when there is no proceeding pending in any court at all at the time when the applicability of _
s. 195(1 )(b), Cr.P.C. has to be determined, nor has there !>een any earlier proceeding which may have been concluded,. the sub-section would not
apply, and in such a case, the Magistrate W?uld. ~ comp~ten! I? take
cognizance of the offence under s. 211 I.P.C., 1f his 1urisd1ct1on 1s 1nvoked
in the manner laid down in s. 190 of Criminal Procedure Code. [526
F-G; 527 B, G-H, 528. E-F; 529 C-E, G-Hl
Case law considered.
(ii) There is nothing in the language of the sub-section to

## Text

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M. L. SETID
A
v.
R. P. KAPUR & ANR.
September 23, 1966
[V. RAMASWAMI, V. BHARGAVA Al\D RAGHUDAR DAYAL, JJ.J
B
Code of Criminal Procedure (Act 5 of 1898), s.
195(1) (b)-Comp/aint to Magistrate of offence under s. 211, Indian Penal Code-CognJ.
ZIJ/ICe, when barred.
The appellant lodged a report with the police charging the resP.Ondent
with certain cognizable offences on IOih December
1958. While the
police were investigating into the report the respondent filed a complaint
111 the Magistrate's Court, on II th April 1959 alleging that the appellant
had committed an offence under s. 211, Indian
Penal Code, by falsely
charging the respondent with having committed an offence. The Magistrate took cognizance of the respondent's complaint under s. 190 Criminal
Procedure Code. At that stage. there were no proceedings in any court
nor any order by any Magisuate for arrest, remand or bail of the respon·
dent in connection with the appellant's report to the p<ilice. Later, on
18th July 1959 the police arrested the respondent in connectibn with the
appellant's report and filed a charge sheet against him, but the case ended in an order of discharge. Thereafter,
the appellant applied to the
Magistrate's court praying that the court may not take cognizance of the
complaint to the court, filed by the respondent against the appellant, on
the ground that, cognizance of an offence under '· 211 l.P.C. could not
be taken in view of the provisions contained in
s. 195(1)(b) Cr.P.C.
Tho Magistrate rejected the contention and the order was confirmed by
the Sessions Court and the High Court.
In appeal to this Court,
HELD : The complaint filed by the respondent was competent and the
Magistrate was not barred from taking cognizance- of it by the provisions
of s. 195(l)(b) Cr.P.C.; and, in taking cognizance of it he only exercised
juri<diction rightly vested in him. [542 A-BJ
c
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(i) When a Magistrate is taking cognizance under s. 190 Cr.P.C., he
F
must examine the facts of the complaint before him and determine wh<>-
ther bis power of taking cognizance under the
section bas or has not
been taken away under s. 195(1) Cr.P.C.
In the case of an offence
under s. 211 l.P.C., s. 195(l)(b). Cr.P.C., provides that no court shall
take cognizance of ir when such offence is alleged to have been committed in, or in relation
to, any proceeding in any court,. except on
the
oomplaint in writing of sucb court or of some other court to which !'uch
court is subordinate. That is. s. 195(1) (b) Cr.P.C. bars taking cogniz.
G
ance if all the following circumstances exist, namely, (i) that the offence
in respect of which the case r.. brought falls under s. 211 I.P.C. (ii) that
there should be a proceeding in a court, and
(iii)
that the allegation
should be that the offence under s. 211 l.P.C. was committed in, or in
ltlation to such. a proceeding.
When
examining the question whether
there
is
any
proceeding
in
any
court,
three
situations
can
be
envisaged : (a) There may
be no proceeding in
any
court at
all; · (b) a proceeding in a court may actually be pending when
H
cognizance is taken of the offence under s. 211 I.P.C., and (e) though
there may be no proceeding pending in a court, there may haVe been
a
procuding which had already concluded and the offence under s. 211 ·may
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M. L. SETHI V •. R. P. KAPUR
521
be alleged to have ·been committed in, or in ·reJatioli' to, that proceeding.
In cases (b) and (c), the bar to taking cognizanee under s. 195(1) (b)
Cr.P.C. ·would come into operation. In case (a), when there is no proceeding pending in any court at all at the time when the applicability of _
s. 195(1 )(b), Cr.P.C. has to be determined, nor has there !>een any earlier proceeding which may have been concluded,. the sub-section would not
apply, and in such a case, the Magistrate W?uld. ~ comp~ten! I? take
cognizance of the offence under s. 211 I.P.C., 1f his 1urisd1ct1on 1s 1nvoked
in the manner laid down in s. 190 of Criminal Procedure Code. [526
F-G; 527 B, G-H, 528. E-F; 529 C-E, G-Hl
Case law considered.
(ii) There is nothing in the language of the sub-section to indicate
that the Legislature also intended lei lay down this bar if a proceeding in
a court was still under contemplation and if and when the proceeding is
taken it may be found that the offence alleged to have been committed
was, in fact, committed in or in relation to, that proceeding. The Magistrate could not be expected to come to a decision whether any such proceeding in any court was under contemplation, and any interpretation of
law,. which will make i:s applicability dependent on a future decision to
be taken· by some person and thus introduce an element of uncertainty,
should be avoided. [530 B-F]
(iii) At the stage when the complaint was
filed by the respondent
against the appellant the police were inquiring into the appellant's report.
In such a case, there may be no justification for the police to bring a
charge of false information being given
to them until
investigation is
completed. Similarly, a Magistrate has no jurisdiction to order a prosecution far making a false complaint, till
the complaint was dismissed.
But there is no requirement anywhere in law that the person affected by
the false charge could not file his complaint in court until the police had
decided that the charge is false.
[534 F-H; 535 A-Bl ·
Queen v. Subanna Goundan, (1862-63)
1 M.H.C.R. 30 and Gati
Mandal v. Emperor, 27 Cr. L.J. 1105, referred to.
(iv) The mere fact that, on a report being made
IP the police of a
cogb.izable offence, the proceeding must, at a latter stage., end in a judicial order by the Magistrate, cannot, stand in the way of a private complaint being filed and of cognizance being taken by the coU'rl. Oll' its basis.
The scheme of the provisions relating to investigation
in the Criminal
Procedure Code, requires that upon the completion of investigation, the·
investigating officer has to submit
a report to the
Magistrate
under
•· 173 Cr.P.C. furnishing various details
and stating whether it appe""
to him there is or is not sufficient evidence or reasonable ground fo·r plac.
ing the accused-on trial.
At that stage there may be an intervention by
the Magistrate in his judicial capacity. But until some occasion arisco
for a Magistrate to make a judicial order in connection with the investigation of a co!l"izable offence by the police, no question can arise of the
Magistrate havmg the power of filing a complaint under s.
195(l)(b)
Cr.P.C. [540 D,, G-H; 541 B-C]
(v) It is not correct to say that s. 195 Cr.P.C. lays down that the
offences therein referred to· shall not be deemed to be any offences at
all, except on the .complaint of the persons or the courts therein specified.
An offence is constituted as soon as it is found that the facts which cons~
titute the offence have been committed by the person accused of ·the
offence, and it remains an offence whether it is triable by a court or not
[535 G-H]
Observations contra in Fakir Mohamed v. Emperor, A.I.R. 1927 Sind
10 overruled.
622
SUPREME COURT REPORTS
(1967] l s.c.R.
(vi) It was not necessary that the proceeding taken by the police
should terminate before the court could competently take cognizance of
the complaint filed by the respondent against the appellant.
[537 HJ
(vii) In the case of s. 195 ( 1) (b) there is a
limitation that private
prosecutions are barred only if the offcaces mentioned in that su~ection
were alleged to have been committed in. or 10 relation to any proceeding
in any court.
If the offence was not commilled..
in, or in relation to,
any proceeding in any court, a private complaint is permissible. [537 0.E)
Ramaswaml Iyengar v. Panduranga Muda/iar, A.1.R. 1938 Mad. 173,
referred to.
(viii) It is true that if a private person is allowed to file a complaint
that the report to the police against
him is false before investigation is
completed, 3nd the court takes cogruzance of it. there may be two trial!,
in one of which a person accused of an offence may be under trial, while
in the 01her, the r,rson who complained
to the police may appear as a
person accused o an offence under s. 211 I.P.C.
Bu~ there is no diflicully in dealing with such a possible anomalous situation, by trying both
case. together or one after the other. (541 CF]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110
of 1965.
Appeal from the judgment and order dated January 13, 1965
of the High Court at Allahabad in Criminal Revision No. 1318 of
1964.
Frank Anthony, M. L. Sethi, J. C. Talwar and R. L. Kohli,
for the appellant.
R. P. Kapur, respondent No. 1, in person.
O. P. Rana, for respondent No. 2.
The Judgment of the Court was delivered by
Bbargava, J. This appeal filed under certificate granted by the
High Court at Allahabad is directed against an order passed by that
Court dismissing a revision application by which the appellant,
M. L. Sethi, desired the vacation of an order passed by the Sessions
Judge of Saharanpur upholding two orders of the Additional District
Magistrate (Judicial), Saharanpur, dated 6th August, 1963 and 5th
October, 1963.
By these orders, the Magistrate dismissed two
applications presented by the appellant for dismissing a complaint
pending before him for commission of offences under sections 211,
204 and 385 of the Indian Penal Code. A further prayer was made
for an order by this Court quashing the proceedings pending in the
Court of that Magistrate.
111e facts necessary for deciding this appeal may be stated
briefly. On December 10. 1958, the appellant lodged a report with
the Inspector-General of Police, Chandigarh against R.P. Kapur
(hereinafter referred to as "the respondent") and his mother-in-law
charging them with commission of offences punishable under sections
420, 109, 114 and 120-B, l.P.C. It does not appear to be necessary
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M. L. SETHI v. R. P. KAPUR (Bhargava, J.)
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to give the details of the allegatiops made in that report. The
charge in that First Information Report was based on the allegation
that the respondent and his mother-in-law, by conspiring together,
cheated the appell~nt and his wife of a sum of Rs. 20,000/- by persuading the appellant to take a sale-deed of some land on certain
false representations and on suppression of facts indicating that on
the date when the sale-deed by the respondent's mother-in-law was
executed in favour of the wife of the appellant, the title of the
former had already been extinguished, as the land had been acquired by the Government under the Land Acquisition Act. The offence
was registered as a cognizable offence and investigation was started.
On April 11, 1959, the respondent filed a complaint in the Court
of Judicial Magistrate, !st Class, Chandigarh, against the appellant
for commission of offences under sections 204, 21 I and 385 I.P.C.
In this complaint, the respondent alleged that the land was sold by
his mother-in-law to the appellant's wife as a favour to the appellant and that at that time, no misrepresentations at all were made in
respect of any facts. The complaint added that the appellant was
fully aware of the land acquisition proceedings; but because of
fixation of low rate of compensation in the acquisition proceedings,
the appellant suffered a loss of nearly Rs. 13,000/-. The appellant,
being a clever criminal lawyer, went to the respondent's mother-inlaw, Smt. Kaushaliya Devi, and demanded the sum of Rs. 13,000/-,
and when she refused, he threatened her with dire consequences of
criminal proceedings against her and her son-in-law, the respondent.
A similar threat of criminal proceedings was also later given to the
respondent himself by the appellant; and thereafter, the First Information Report was lodged with the Inspector-General of Police by
the appellant on December 10, 1958. The charge in the complaint
further was that the allegations made in the First Information Report
by the appellant were false to his knowledge and were contradicted
by the appellant's own letters, writings and other correspondence.
It was also stated that the false report to the police was made with
the knowledge and intention of putting the respondent in fear of
injury to his fair name and reputation in service and otherWise and
of being put under arrest and harassment in a criminal trial and
thereby to induce him to deliver to the appellant Rs. 13,000/- and
submit to other terms that the appellant may choose to impose. The
last allegation was that the appellant was guilty of the offence under
~. 204, I.P.<;:., for secreting five documents which were enumerated
in the complaint, and this offence was alleged to have been committed, because if these documents had been presented in time, the
Police would not have entertained the complaint which led to a
harassing investigation against the respondent.
This complaint filed by the respondent against the appellant,
lli well as the proceedings instituted by the Police on the basis of the
524
SUPREME
COURT
RBPOll.TS
[1967] I S.C.R.
First Information Report were transferred under the orders of this
Court to the Court of the Additional District Magistrate, Saharanpur. The case against the respondent and his mother-in-law based
on the First Information Report ended in an order of discharge passed by the High Court of Allahabad on December 10, 1962, when the
charge framed against the respondent and his mother-in-law by the
trying Magistrate was quashed. On the record, the material available relating to the proceedings based on the F.l.R. dated December
10, 1958, is that it was on July 18, 1959 for the first time that the
respondent was arrested in connection with that report and the
challan by the Police for trial of the respondent was presented to the
Court on July 25, 1959. There is no m:iterial to show that between
December 10, 1958, when the First Information Report was lodged,
and July 18, 1959 when the respondent was arrested in connection
with it, there was, at any stage, any order pa,sed by any Magistrate
in connection with the investigation that was going on.
As we have mentioned earlier, the revisions before the Sessions
J udg~. and the High Court, arose out of two orders made by the
Additional District Magistrate on August 6, 1963, and October 5,
1963. The first order was made on an application presented by the
appellant on May 6, 1963 in which he contended that no offence
was disclosed on the allegations made in the complaint and on the
statement of the complainant recorded by the Magistrate at Chandigarh, and, further, that, in any case, the trial was barred on account
of want of requisite previous sanction as provided in s. 195 of the
Code of Criminal Procedure. It was also alleged that the facts
were so inter-mixed that the trial of any other offepce separate from
the offence under s. 211, l.P.C., was not permissible or possible,
so that the Magistrate was requested not to proceed with the trial
and to withdraw the order summoning the appellant; and in the
alternative, the prayer was that the appelhnt may be discharged
under s. 253, Cr. P.C., as the charge against him was groundless.
The second order of the Magistrate dg,ted 5th October, 1963,
was passed on the application of the appellant dated August 12,
1963, in which it was prayed that the Court may not take cognizance
of the complaint as instituted, and the trial under s. 252, Cr. P.C.
may not proceed. The prayer was again based on the ground that
cognizance of the offence under s.. 211, l.P.C. could not be taken in
view of the provisions ofs. 195(l)(a) &(b), Cr. P.C., under which the
Court was empowered to proceed in respect of that offence only
when there was a complaint in writing by the authority concerned.
The Additional District Magistrate by his two orders, rejected the
contention tl}at s. 195, Cr. P.C., barred this particular complaint
which had been filed against the appellant. The main ground for
these orders was that no proceedings were pending in any Court
when the compla,int against the appellant was filed in the Court of
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M. L. SETlll v. R. P. KAPUR (Bhargava, /.)
525
the Magistrate at· Chandigarh for the offences under sections. 204,
211, and 385, I.P.C. and consequently, s. 195, Cr. P.C., wa~ inapplicable. That is the view of the Addl. District Magistrate which has
been upheld both by the Sessions Judge and the ~gh Cour~; a11;d
consequently, the appellant has now come up to this Court in this
appeal.
On behalf of the appellant, the first submission made by his
counsel, Mr. Frank Anthony, was that the making of a report
of a cognizable offence with the police is both institution of a criminal proceeding as well as charging a person with having committed an offence, so that, in this case, when the appellant lodged his
First Information Report on December 10, 1958, with the InspectorGeneral of Police, it must be held that he had instituted a criminal
proceeding against the respondent, as well as he had charged him
with having committed the offences mentioned in that report within
the meaning of s. 211, l.P.C. 'In support of this proposition, learned
counsel relied on a Full Bench decision of the Calcutta High Court
in Karim Buksh v. The Queen-Empress(!), and a Full Bench decision
of the Kerala High Court in Alber!v. State of Kera/a and Another.(2)
It was urged that, on this interpretation, when the respondent filed
a complaint against the appellant under s. 211, I.P.C., together with
other offences, the provisions of s.195, Cr. P.C., became attracted.
It appears to us that in this case it is not at all necessary to
go into the question whether, whenever a complaint of a cognizaable offence is filed, it must be held that the complainant is instituting or causing to be instituted a criminal proceeding, or is merely
charging the person named in the report with having committed the
offences mentioned therein, because, during the course of argument
in the appeal before us, no contention was put forward that no
offerce under s. 211, 1.P.C., was made out and that the complaint
of the respondent against the appellant was wrongly being treated
as in respect of a charge under s. 211. Up to the stage of the revision
before the High Court, some attempt was made on behalf of the
appellant to plead that the facts alleged bythe respondent in his complaint to the Court did not constitute an offence under s. 211, I.P.C.
committed by the appellant; but, in this Court, Mr. Frank Anthony
on behalf of the appellaqt gave up this plea and, in fact,' proceeded
to urge before us that the complaint of the respondent against the
appellant did specifically include in it a charge under s. 211, 1.P.C •.
On behalf of the respondent and the State Government also there
was no suggestion that the complaint against the appellant was
not in respect of the offence under s. 211, l.P.C. It is consequently
unnecessary at this stage to go into the question whether the facts
given in the complaint, or the facts which may ultimately be found
proved after the trial, do or do not constitute an offence under s.
211, l.P.C. and if they do, whether those facts show that the
(!) l.L.R.17 Cal. 574.
(2) A.I.R. 1966 Kerala 11.
526
SUPREME
COURT
llEPOB.TS
[1967] l s.c.a.
appellant had instituted a criminal proceeding against the respondent
or had only charged him with having committed the offences mentioned in his report. That is a point which may have to be decided
at the conclusion of the trial of the appellant; and consequently,
we refrain from going into this question at this stage.
The only point that falls for determination by this Court is
whether, in this case, cognizance of the complaint, which included
an offence under s. 211, I.P.C., filed by the respondent against the
appellant, was rightly or wrongly taken by the Courts. The complaint, as we have mentioned earlier, was filed by the respondent in
the Court of the Judicial Magistrate at Chandigarh on April II,
1959, and on the same day, cognizance of the offence was taken by
that Magistrate under s. 190, Cr. P.C., whereafter that Magistrate
proceeded to record the statement of the respondent under s.
200, Cr. P.C. Before this cognizance was taken, the appellant
had already lodged his first Information Report against the respondent with the Inspector-General of Police on December I 0, 1958.
In connection with that report, investigation by the Police must
have been going on, though none of the judgments of the lower
Courts mentioned what particular steps had been taken in that
investigation up to the I Ith April, 1959, when this complaint was
filed by the respondent against the appellant. The facts found only
mentioned that in connection with that First Information Report of
the appellant, the respondent was arrested on July 18, 1959, and
subsequently, the charge-sheet was submitted by the Police to the
Court of the Magistrate on July 25, 1959. This arrest and submission of the charge-sheet were both subsequent to the filing of the
complaint by the respondent. In these circumstances, we have· to
examine whether the Magistrate at Chandigarh was competent to
talce cognizance of this complaint on April 11, 1959, in view of the
provisions of s. 195 of the Code of Criminal Procedure.
In dealing with thi.s question of !aw, the important aspect that has
to be kept in view is that the point of time at which the legality of
the cognizance taken has to be judged is the time when cognizance
is actually taken under s. 190, Cr. P.C. Under the Code of Criminal Procedure which applies to tria'~ of such cases, the only provision
for taking cognizance is contained in s. 190. Section 195, which
follows that section, is, in fact, a limitation on the unfettered power
of a Magistrate to take cognizance under s.190.
Under the latter
section
cognizance of any offence can be taken by any Presidency
Magistrate, District Magistrate or Sub-Divisional Magistrate, and
any other Magistrate specially empowered in this behalf (a) upon
receiving a complaint of facts which constitute such offence; (b)
upon a report in writing of such facts made by any police-officer;
and (c) upon information received from any person other than a
police-officer, or upon his own knowledge or suspicion, that such
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M. L. SETHI v. R. P. KAPUR (Bhargava, !.)
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offence has been committed. In the present case, the Judicial
Magistrate at Chandigarh had before him the complaint filed by the
respondent, and ifs: 190 stood by itself, he was competent to take
cognizance of it under clau~e (a) of sub-s. (!) of that section.
This power of taking cognizance was, however, subject to the
subsequent provisions contained in the Code of Criminal Procedure
B
including that' contained in s. 195. Sub-s. (!) of s. 195, which is
relevant for our purposes, is reproduced below :-
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" 195(1). No Court shall take cognizance-
(a) of any offence punishable under sections 172 to
188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or
of some 9ther public servant to whom he is subordinate;
(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193,
194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210,
211 and 228, when such offence is alleged to have
been committed in, or in relation to, any proceeding
in any; Court, except on the complaint in writing
of such Court or of some othet Court to which
such Court is subordinate; or
(c) ·of any offence described in seetion 463 or punishable
under section 471, section 475 or section 476 of the
same Code, when such offence is alleged to have
been committed by a partyto any proceeding in any
Court in respect of a document produced or given
in evidence in such proceeding, except on the com·
plaint in writing of such Court, or of some other
Court to which such Court is subordinate."
This sub-section thus bars any Court from taking cognizance of the
offences mentioned in clauses (a), (b) and (c), except when the conditions laid down in those clause~ are satisfied. In the case of an
offence punishable under s. 211, I.P:C., the mandatory direction
is that no Court shall take· cognizance of any offence punishable
under. this section, 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. This provision in clause (b) of
sub-s. (l) of s. 195 is thus clearly a limitation on the power of the
Court to take cognizance under s. 190. Consequently, it is at the
stage when a Magistrate is taking cognizance under s. 190 that he
must examine the facts of the complaint before him and determine
whether his power of taking cognizance under s. 190 has or has not
been taken away by cl. (b) of sub-s. (!) of s. 195, Cr. P.C. In
528
SUPREMB
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REPORTS
(1967] 1 S.C.R.
the present case, therefore, at the time when this complaint was
filed by the respondent in the' Court of the Judicial Magistrate at
Chandigarh, it was necessary and incumbent on that Magistrate to
examme whether his power of taking cognizance of the offence
was limited by the provisions of s. 195 (l)(b).
He had, therefore,
to determine whether cognizance of this complaint charging the
appellant with commission of an offence under s. 211, I.P.C., could
not be. taken by·him, because that offence was alleged to have been
comm1ttcd in, or in relation to, any proceeding in any Court, and if
he found that it was so, whether a complaint in writing by such
Court or some other Court to which such Court was subordinate
was necessary before he could take cognizance. Consequently,
in deciding this appeal, this Court has to examine whether on the
date when cognizance was taken by the Judicial Magistrate at
Chandigarh such cognizance was barred under s. 195(1)(b), Cr.
P.C., because the offence punishable under s. 211, I.P.C., included
in the complaint was alleged to have been committed in, or in relation to, any proceeding in any Court.
In the interpretation of this cl. (b) of sub-s. (I) of s. 195, con·
siderable emphasis has been laid before us on the expression "in•
or in relation to", and it has been urged that the use of the expression "in relation to" very considerably widens lhe scope of this
section and makes it applicable to cases where there can c~en in
future be a proceeding in any Court in relation to which the offence
under s. 211, I.P.C., may be alleged to have been committed. A
proper interpretation of this provision requires that each ingredient
in it be separately examined. This provision bars taking of cognizance if all the following circumstances exist, viz., (:) that the
offence in respect of which the case is brought falls under s. 211
I.P.C.; (2) that there should be a proceeding in any Court; and
(3) that the allegation should be that the offence under s. 211 was
committed in, or in relation to, such a proceeding. Unless all the
three ingredients exist, the bar under s. 195(l)(b) against taking
cognizance by the Magistrate, except on a complaint in writing of a
Court, will not come into operation. In the present case also,
therefore, we have to see whether all these three ingredients were in
existence at the time when the Judicial Magistrate at Chaadigarh
proceeded to take cognizance of the charge under s. 211, I.P.C.,
against the appellant.
There is, of course, no doubt that in the complaint before the
Magistrate a charge under s. 211. 1.P.C., against the appellant
was included, so that the first ingredient clearly existed. The question on which the decision in the present case hinges is whether
it can be held that any proceeding in any Court existed when that
Magistrate took cognizance. If any proceeding in any Court existed and the offence under s. 211, J.P.C., in the romplaint filed before
him was alleged to have been committed in such a proceeding, or in
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M. L. SETHI v. R. P. KAPUR (Bhargava, !.)
529
A
relation to any such proceeding, the Magistrate would have been
barred from taking cognizance of the offence. On the other hand,
if there was no proceeding in any Court at all in which, or in relation to which, the offence under s. 211 could have been alleged to
have been committed, this provision barring cognizance would not
be attracted at all.§
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In this case, as we have already indicated when enumerating
the facts, the complaint of which cognizance was taken by the
Judicial Magistrate at ChandigarhwasfiledonApril 11, 1959,andat
that stage, the only proceeding that was going on was investigation
by the Police on the basis of the First Information Report lodged by
the appellant before the Inspector-General of Police on December
10, 1958. There is no mention at all that there was, at that stage,
any proceeding in any Court in respti_c.Lofthat F.l.R. When examining the question whether there is any proceeding in any Court,
there are three situations that can be envisaged. One is that there
may be no proceeding in any Court at all. The second is that a
proceeding in a Court may actually be pending at the point of time
when cognizance is sought to be taken of the offence under s. 211,
I.P.C. The third.is that, though there may be no proceeding pending
in any Court in which, or in relation to which, the offence under
s. 211, I.P.C., could have been committed, there may have beena
proceeding which had already concluded and the offence under s. 2.11
may be alleged to have been committed in, or in relation to, that
proceeding. It seems to us that in both the latter two circumstances envisaged above, the bar to taking cognizance under s. 195(l)(b)
would· come into operation. If tl;i.ere be a proceeding actually
pending in any Court and the offence under s. 211, l.P.C., is alleged
to have been committed in, or in relation to, that proceeding,
s. 195(n(b) would dearly apply. Even if there be a case where
there was, at one stage, a proceeding in any Court which may
have concluded by the time the question of applying the provisions
of s. 195(\)(b) arises, the bar under that provision would apply if
it is alleged that the offence under s. 211, I.P.C., was committed in,
or in relation to, that proceeding. The fact that the proceeding
had conclutled would be immaterial, because s. 195(l)(b) does not
require that the proceeding in any Court must actually be pending
·at the time when the question of applying this bar arises.
G
Cir
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In the first circm:μstance envisaged above, when there is no
proceeding pending in any Court at all at the time when the applicability of s. 195(l)(b) has to be determined, nor has there been any
earlier proceeding which may have been coneluded, the provisions
of this sub-section would not be attracted, because the language
used in it requires that there must be a proceeding in some Court in,
or in relation to, which the offence under s. 211, I.P.C. is alleged to
have been committed. In such a case, a Magistrate would be competent to ta.ke cognizance of the offence under s. 211 I.P.C., if his
530
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[1967] l S.C.R
jurisdiction is invoked in th<! manner laid down in s. 190 of the
A
Code of Criminal Procedure.
Mr. Frank Anthony on behalf of the appellant urged before us
that even in those cases where there may be no pending proceeding
in any Court, nor any proceeding which has already concluded in
any Court, the bar of s. 195(1)(b) should be held to be applicable
if it is found that a subsequent proceeding in any Court is under
contemplation. We do not think that the language of cl. (b) of
sub-s. (I) of s. 195 can justify any such interpretation. A proceeding in contemplation cannot be said to be a proceeding in a Court.
When there is mere contemplation of starting a proceeding in
future, there is no certainty that the proceeding will come into
e:tistence. It will always be dependent on the decision to be taken
by the person who is contemplating that the proceeding be started;
and any interpretation of the law, which will make the applicability
dependent on a future decision to be taken by another person, would,
in our opinion, be totally incorrect. The applicability of this
.provision at the sweet will of the person contemplating the proceed-
•
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ing will introduce an element of uncertainty in the applicability of
D
the law; and such an interpretation must be avoided. In this case,
apart from this circumstance, the language used clearly lends itself to the interpretation that the bar has been placed by the Legislature only in those ca~es where the offence is alleged to have been
committed in, or in relation to, any proceeding actually pending
in any Court, or any proceeding which has already been taken in
any Court. There is nothing in the language to indicate that the
Legislature also intended to lay down this bar if a proceeding in a
Court was still under contemplation and if and when that proceeding is taken, it may be found that the offence alleged to have been
committed was, in fact, committed in, or in relation to, that proceeding. In this connection, the question of time when the applicability of this provision has to be determined, assumes importance.
It appears to us that at the time when in the present case the Judicial Magistrate at Chandigarh had to determine the applicability
of this bar, he could not be expected to come to. a decision whether
any proceeding in any Court was under contemplation in, or in
relation to, which the offence under s. 211, l.P.C., of which he was
asked to take cognizance, was alleged to have been committed. In
fact, it would be laying on the Magistrate a burden which he could
not be expected to discharge properly and judicially as no Magistrate could determine in advance of a proceeding in a Court whether
the offence under s. 211, l.P.C., of which he is required to 1ake
cognizance, will be an offence which will be found subsequently
to have been committed in relation to the contemplated proceeding
to be taken thereafter. This interpretation, sought to be placed on
this provision on behalf of the appellant, cannot, therefore, be
accepted.
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M. L, SETHI v. R. P. KAPUR (Bhargava, J.)
531
In this connection, reliance was placed by learned counsel .
for the appellant on a series of cases decided by various High Courts.
In Re Vasudeo Ramchandra Joshi(!), the ]iigh Court of Bombay
quashed proceedings for prosecution of a lawyer who had instigated some witnesses to give false evidence. It appears that a pleader
was defending an accused person in a proceeding pending before a
Magistrate against. his client in respect of a charge under s. 401,
I.P.C.
On April l, 1922, an application made by the pleader
on behalf of the accused for bail was refused. Then, . the statements
of three witnesses were recorded under s. 164, Cr. P.C., on April
18, 1922, and from these statements it appeared that on April 10,
these witnesses had an interview with the pleader who had instigated them to ,give false evidence. On April 15, another case against
the pleader's client in respect of a dacoity was sent up to the Magistrate, and the allegation against the pleader was that it was in
connection with this case of dacoity which was sent up to the Magistrate on April 15, that the pleader had instigated the witnesses
to give false evidence. On June 2, the, witnesses were actually
examined before the Magistrate in this dacoity case which was sent
up on April 15; and then on June 7, a complaint was filed by the
Police Officer against the pleader charging him with having abetted
the giving of false evidence. It was in these circumstances that the
High Court held that the provisions of s. 195(1) (b), Cr. P.C., were
applicable and the case against the pleader on the charge filed by the
Police Officer was not maintainable when there was no sanction by
the Magistrate who was enquiring into the dacoity case in relation
to which the witnesses were instigated to give false evidence. On
the facts, it is clear that that case is distinguishable from the case
before us. In that case, the charge by the Police Officer was filed
on June 7, and on that date a proceeding was already pending before
the Magistrate in relation to which the witnesses had been instigated
to give false evidence. The provisions of s. 195(1)(b) were, therefore, clearly applicable. Dealing with this matter, one of the
learned Judges of the High Court held that "the words are very
general, and are wide enough, in my opinion, to cover a proceeding
in contemplation before a Criminal Court, though it may not have
begun at the date when the offence was committed. If that is so,
it is iilain that sanction was necessary in the present case, and,
therefore, the proceedings which have been undertaken are null
and void without such sanction." These views expressed by
Crump, J., had been relied upon by learned counsel in support of
his proposition that even if an offence is committed in relation to
a proceeding which is in contemplation, the provisions of s. 195(1)
(b), Cr. P.C., are attracted. We do not think that any such general
proposition can be inferred from that decision. It is to be noted
that in that case though it was held that the offence of instigation
of witnesses to give false evidence was committed when proceedings
(I) AI.R. 1923 Bom. 105.
532
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RBPOHS
[1967) I S.C.R.
before a criminal Court were still under contemplation in which the
witnesses were to appear, the actual complaint for that instigation
was filed after the Magistrate was already seized of the proceeding
in which the witnesses were instigated to give false evidence.
On
the date on which the complaint was filed by the Police Officer
charging the pleader with instigation of giviflg false evidence, there
was already a pending proceeding before the Court in relation to
which that offence had been committed. Consequently, the observations in that case should be interpreted as limited to laying down
that the provisions of s. 195(I)(b), Cr. P.C., will be attracted even
if the offence charged was corrunittcd while the proceeding was
in contemplation and that there was no decision by the Court
that the sanction under s. 195(l)(b) would be necessary even
in those cases where the proceeding is still
under contemplation on the date when the complaint is filed before the
Court for commission
of
the
offence
mentioned
in
s.
195(l)(b).
In Ghulam Rasul v. Emperor(!), the Police investigated a report that a certain person had stolen the complainant's watch from
his car, and in the investigation, the Police came to the conclusion
that the report was false and that the watch had been removed by
the complainant himself. The ca'e was accordingly reported to
the Magistrate for cancellation; and then the Police prosecuted the
complainant under ss. 193. and 211, I.P.C. The learned Judge
of the Lahore High Court-in dealing with the case held: "I am
clear that the words in this sub-section 'in relation to any proceeding in any Court' apply to this case of a false report or a false state-·
ment made in an investigation by the police with the intention that
there shall; in consequence of this, be a trial in the Criminal Court,
and I find support for this view in the case of Chuhar Mal-Nihal
Mal v. Emperor(Z)." The decision in the words in which the learned Judge expressed himself appears to support the argument of
learned counsel for the appellant in the present case; but we think
that very likely in that case, the learned Judge was influenced by the
circumstance that the case had been reported by the Police to the
Magistrate for cancellation.
He appears to have held the view
that the Magistrate having passed an order of cancellation, it was
necessary that the complaint should be filed by the Magistrate,
because s. I 95(1)(b) had become applicable.