1. In this case complaints were filed under Section 193, Penal Code, against the applicants in respect of previous statements made by them under Section 164, Criminal P.C., before a Magistrate. The Magistrate had not himself filed any complaint. The accused took objection that the Court had no power to take cognizance of the offence without such a complaint, but his objection was rejected summarily on the ground that Section 195, Criminal P.C. had no application. The learned Sessions Judge is of the opinion that the prosecution of the applicants is barred by the provisions of Section 195, Criminal P.C. As no direct case on this point was cited before the learned Single Judge, the case has been referred to a Division Bench.
2. Section 195(1)(b) provides that no Court shall take cognizance of any offence punishable under Section 193, Penal Code, 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. Then Sub-section (2) provides that 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. The main question therefore is whether the recording of the statement under Section 164, Criminal P.C., before the Magistrate was a proceeding in a Court (within the meaning of the section.
3. Now the word 'Court' has not been defined in the Code, nor in the General Clauses Act. There is a definition in Section 3, Evidence Act, where Court includes all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence. But this definition cannot directly apply to the word 'Court' used in the Criminal Procedure Code though it may be some guide. Section 6 of thq Code lays down that Magistrates constitute one of the classes of criminal Courts. Even a Bench Magistrate, who is invested with first class powers, has the ordinary powers of a Magistrate of the first class as enumerated in Schedule 3, which include power to record statements under Section 164.
4. It is significant that Section 195(1)(b) refers to 'any proceeding,' and is not confined to a judicial proceeding. It is therefore not necessary for its application that the Court should be engaged in a judicial proceeding. It is also clear from Sub-section (2) that the term 'Court' in this isection is used in a very wide sense. The word 'includes' indicates that there may be Courts other than civil, revenue or criminal Courts. That the use of the word 'includes' is deliberate is obvious from the circumstance that the legislature has by amendment substituted this word for the old word 'means' which was much narrower in scope. Again, from the fact that it was thought necessary to exclude a registrar or sub-registrar from the scope of the term 'Court,' and a special exception has been made, it follows that the legislature considered that, but for such an exception, a registrar or sub-registrar would be included in the term 'Court.' In Kanhaiya Lal v. Bhagwan Das 1926 All. 30 and Bilas Singh v. Emperor 1925 All. 7374, it was held that the term 'Court' has a wider meaning.
5. Now a Magistrate under Section 164, Criminal P.C., does not act mechanically merely as a ministerial officer. He can record a statement or confession made to him in the course of an investigation as well as before the commencement of an enquiry or trial. The statements are to be recorded in the manner prescribed for recording evidence.
6. The Magistrate has not only to warn the person making a confession, but is prohibited from recording such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. He lias also to make a memorandum that he believes that the confession was voluntarily made. The Magistrate is therefore to exercise his judgment and lias to be satisfied that the confession is voluntary.
7. In these circumstances itis very difficult to hold that a. Magistrate recording statements under Section 164, Criminal P.C., is not a Court within the meaning of Section 193, Criminal P.C. It is not necessary to decide in this case whether the proceeding before him is a judicial proceeding, for Section 193 applies both to a judicial and to 'any other case.' We are therefore of opinion that the Special Magistrate who has convicted the accused had no authority to take cognizance of the offence punishable under Section 193, Penal Code, when it was alleged to have been committed in the proceeding under Section 164 in the Court of a Magis trate without a complaint in writing of such Court or some other Court to which it was subordinate. We accordingly set aside his order dated 22nd February 1934.