G.B. Pattnaik, J.
1. These revisions were heard together since common questions of fact and Jaw are involved and are, therefore, being disposed or by this common judgment. Criminal Revision No. 156 of 1983 is directed against the order of the Sub-Divisional Judicial Magistrate, Gunupur, taking cognisance of an offence under Section 211, Indian Penal Code, against the petitioner and issuing summons for appearance of the accused. Criminal Revision No. 234 of 1983 is directed against the order of the learned Magistrate dismissing the complaint filed by the petitioner on 19-11-1982 in ICC Case No 83 of 1982. Criminal Revision No. 555 of 1983 is directed against the order of the learned Magistrate refusing petitioner's prayer to stay further proceeding in G. R. Case No. 237 of 1982 which has been started against the petitioner on the allegations made by the accused of the complaint case.
2. The brief facts of the case are that the petitioner had lodged on F. I. R. in Gunupur Police Station alleging that Doraswamy Naidu abused him in filthy language when the petitioner went to him for realising the balance amount towards repair charges of the bus. belonging to said Doraswamy. It was also alleged that the petitioner was assaulted in the evening when be went to said Doraswamy and further a sum of Rs. 50/-was removed from his pocket on the basis of the said First Information Report, P. S. Case No. 86 of 1982 was registered and G. R. Case No. 242 of 1932 was instituted in the Court of the Sub-Divisional Judicial Magistrate. After investigation, the police gave final form in the said case on 22-11-1982 and had also informed the petitioner on 19-11-1982 in accordance with Section 173 of the Code of Criminal Procedure. The petitioner therefor had lodged a protest petition on 19-11-1982 which was treated as a complaint and a complaint case was registered in the Court of the Sub-Divisional Judicial Magistrate bearing ICC Case No. 83 of 1932. The learned Sub-Divisional Judicial Magistrate without waiting for the results of the complaint case accepted the final report submitted by the police on 21-11-1982. In the complaint case, the complaint was examined on 13-12-1982 and coming to know from his evidence that in respect of the self-same allegations P, S, Case No. 86 of 1932 had been registered, the Magistrate called for the case diary of the said case. Then on 20-1-1983, the learned Magistrate directed to bold an enquiry under Section 202, Code of Criminal Procedure, and the complainant was required to produce all his witnesses for the said enquiry. It may be stated that prior to the said order, the accused appeared before the learned Magistrate and wanted to participate in the proceedings for the purpose of challenging the jurisdiction of the Court in the matter of taking cognisance of the offence against him, but the learned Magistrate, by an laborate order dated 10-1-1983, rejected the prayer of the accused by holding that the accused at that stage has no locus standi to participate in the proceedings. On 1-2-1983, the witnesses on behalf of the complainant were examined and the arguments on behalf of the complainant, were heard on 3-2-1983. Thereafter, by the impugned order dated 5-2-1983, the learned Magistrate dismissed the complaint under Section 203 of the Code of Criminal Procedure, after coming to the conclusion that there is no sufficient ground to proceed in the case. This order of the learned Magistrate is being impugned in Criminal Revision No. 234 of 1933.
3. The only ground of attack of Mr. Patnaik, the learned counsel for the complainant-petitioner is that the learned Magistrate had no jurisdiction to refer to any materials which had been collected in course of investigation into the G. R. Case and, therefore, the impugned order is vitiated since the Magistrate has copiously referred to the materials obtained during investigation in the G. It Case No. 242 of 1982 arising out of P. S. Case No. 86 of 1932 in which the police had submitted final form and that was accepted by the learned Magistrate by order dated 23-11-1932, This contention of the learned counsel is based on the ground that Section 203 of the Code of Criminal Procedure is the relevant provisions which enumerates what ate the materials to be considered in a complaint case on which the Magistrate would form his opinion as to whether there is no sufficient ground for proceeding with the complaint. Under Section 203, a Magistrate can consider the statements on oath it any, of the complainant and of the witnesses and the result of the enquiry or investigation, if any, under Section 202. Therefore, the Magistrate had no jurisdiction to refer to any materials which had been received during investigations in a G. R. Case even though the G. R. Case was registered on the self-same allegations This point was discussed by me at great length in the case of Ghanashyam Tripathy v. Sorvanarayan Tripathy and Anr., 60(1985) C. L. T. 17: 1985 (I) OLR (NOC) 56. In paragraph 4 of the said judgment, relying on an unreported decision of this Court in the case of Jatadhari Rana v. Udhab Khuntia and two Ors., (Criminal Revision No. 377 of 1984) disposed of on 26th June, 1984, it was held that it can not be said that the learned Magistrate committed any illegality in referring to the records of the G. R. Case. In another unreported decision in the case of Madhaab Chandra Mallik and Anr. v. Bimbadhar Dhal and Ors., (Criminal Revision No. 161 of 1982, disposed of on 26th June, 1985), it has been held :
'...While disposing of the complaint case, though the Magistrate will have to follow the Procedure contained in Chapter-XV of the Code, yet he is not debarred from looking into the police papers in respect of the self-same allegation which was the subject-matter of an investigation by police in the G. R. Case and in which case, the police had submitted the final form...'
In view of this, I do not find any merits in the contention of Mr. Patnaik, the learned counsel for the complainant-petitioner and, therefore, Criminal Revision No. 234 of 1983 is dismissed being devoid of merits.
4. In the meantime, i.e., after accepting the final form submitted by the police in G. R. Case No. 242 of 1982 and before passing any final order in the matter of taking cognisance in the complaint case, on the basis of a prosecution report submitted by the police, the learned Magistrate took cognisance of an offence under Section 211, Indian Panel Code, against the petitioner which the petitioner wants to be quashed in Criminal Revision No, 156 of 1983. The prosecution report was received by the learned Magistrate on 11.1.1983. On 5.2.1983, the learned Magistrate, after dismissing the complaint in ICC Case No. 83 of 1982 under Section. 203 of the Code of Criminal Procedure, took cognisance of the offence under Section. 211, Indian Penal Coda, against the present petitioner and directed issue of summons to the accused fixing 3.3.1983 as date of appearance. It appears from the Magistrate's records in U. C. 11 of 1983 that the complainant who is the Sub-Inspector of Police, Gunupur Police Station having submitted final form in the G. R. Case by coming to the conclusion that a false case had been instituted by the present petitioner who was the informant in the G. R. Case, had filed a prosecution report to take cognisance of the offence under Section. 211, Indian Penal Code against, the petitioner.
According to Mr. Patnaik, the learned counsel for the petitioner, since the prosecution in question relates to the proceeding in G. R. Case No. 242 of 1982 which was before the learned Magistrate, a complaint, in writing of the Court is a pre-condition for taking cognisance of an offence under Section. 211, Indian Penal Code, as required under Section. 195(1)(b)(i) of the Code of Criminal Procedure and this pre-condition not having been satisfied, the proceeding including the order taking cognisance is bad in law. Section 195(1)(b)(i) of the Code of Criminal Procedure provides as follows:
'195(1) No Court shall take cognisance.
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.'
Thus, Section 195 of the Code prohibits taking cognisance of certain offences except on a complaint, in writing, by authorities specified in the said section, provided the offences in question are alleged to have been committed in, or in relation to, any proceeding in any Court There has been a divergence of views between the various High Court on the question whether a complaint is necessary when a Magistrate passes an order on a final report given by the police under Section 173 of the Code of Criminal Procedure, accepting the final form. That again is dependent upon the true meaning of the expression in, or in relation to any proceeding in any Court used in Section. 195(1)(b)(i) of the Code of Criminal Procedure. The High Courts of Bombay, Saurashtra and Andhra Pradesh took the view that when a Magistrate passes an order on a final report of police under Section. 173 referring the case as false, he 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 complaint of the Magistrate is necessary for the prosecution of the informant under Section. 211, Indian Penal Code. The Madras, Calcutta and Allahabad High Courts on the other hand took the view that in such an event, the Magistrate does not act as a Court and, therefore, no complaint of the Magistrate is necessary. The controversy, however, has been set at rest by the decision of the Supreme Court in the case of Kamlapati Trivedi v. State of West Bengal, A. I. R. 1979 S. C. 777. The majority view in that case expressed through Justice Koshal (Justice Kailasam having given the contrary view) is to the effect that when a Magistrate receives a report from the police under Section 73 of the Code, three courses are open to him : (a) he may agree with the report of the police and file the proceedings; or (b) does not agree with the police report and (i) order further investigation or (ii) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognisance of the offence complained Of. The appropriate course has to he decided upon after consideration of the report and the application of the mind of the Magistrate to the contents thereof. The order passed by the Magistrate either when he agrees with the police report and files a proceeding or holds that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and takes cognisance of the offence complained of, is a judicial order determining the rights of the parties after application of his mind and, therefore, must be characterised as a judicial act performed by the Magistrate in his capacity as a Court. The relevant portion in the aforesaid decision may be profitably extracted hereunder:
'Sections 169 and 170 do not talk of the submission of any report by the police to the Magistrate, although they do state what the police has to do short of such submission when it finds at the conclusion of the investigation (1) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate (Section 169(2) that there is sufficient evidence or reasonably ground as aforesaid (Section 170). In either case the final report of the police is to be submitted to the Magistrate under Sub-section (1) of Section. 173. Sub-section. (3) of that section further provides that in the case of a report by the police that the accused has been released on his bond (which is the situation envisaged by Section.. (169), the Magistrate shall make such order for the discharge such bond or otherwise as he thinks fit.' Now what are the courses open to the Magistrate in such a situation He may, as held by this Court in Abhinandan Jha & Ors. v. Dinesh Misra, (1967) 3 SCR 668, (1) agree with the report of the police and file the proceedings, or (2) not agree with the police report and (a) order further investigation, or (b) hold that the evidence is sufficient to justify the forwarding of the accused to the Magistrate and take cognisance of the offence complained of.
The appropriate course has to be decided upon after a consideration of the report and the application of the mind of the Magistrate to the contents thereof. But then the problem to be solved is whether the order passed by the Magistrate pertains to his executive or judicial capacity. In my opinion, the only order which can be regarded as having been passed by the Magistrate in his capacity as the supervisory authority in relation to the investigation carried out by the police is the one covered by the course 2(a). The order passed by the Magistrate in each of the other two courses, that is, (1) and 2(b), 'follows a conclusion of the investigation' and is a judicial order determining the rights of the parties (the State on the one hand and the accused on the other) after the application of his mind. And if that be so, the order passed by the Magistrate in the proceeding before us must be characterised as a judicial act and therefore, as one performed in his capacity as a Court. '
In view of what has been stated, above the only question which remains to be considered is whether the offence under Section 211 Indian code, which is the subject matter of complaint against the petitioner can be said to have been committed within the meaning of in relation to the proceedings namely, G. R. case No. 242 of 1982, which was instituted the Sob-Divisional Judicial Magistrate. The said G. R. Case was instituted the basis of the information lodged by the petitioner with the police against Doraswamy Naidua and others and the conclusion is the irresistible that the present offence complained of against the petitioner must be regarded as one committed in relation to the said proceedings. Consequently the Magistrate acted in contravention of the bar contained in Section 195(1)(b) of the Code of Criminal procedure as there was . complaint in writing by the Sub-Divisional Judicial Magistrate view of the matter the order of the learned magistrate taking of the offence under Section 211. Indian Penal Code, is set aside and criminal proceeding in U. C Case No. 11 of 1933 pending in the court of the Sub-Divisional Judicial Magistrate, Gunupur, is quashed, Criminal Revision No. 155 of 1933 is, therefore, allowed.
5. Criminal Revision No. 555 of 1987 was directed against order of the Magistrate refusing to stay further proceedings in G. R. case No 237 of 1982. This case has been started on the basis of a Fist Information Report by one Singu Doraswamy Naidu which was registered ac P. S. Case No 81 of 1932. The learned Sub-Divisional judicial Magistrate in that case has taken cognisance by order dated 11-11-1982 and issued summons against the petitioner for appearance. ln said G.R. Case an application was filed by the present petitioner to stay further proceedings in the case till the pending Criminal Revisions tiled by the petitioner both against the order of dismissal of his complaint in ICC Case No. 83 of 1982 as well as against the order in U. C. Case No. of 1988 are finally disposed of by this Court. The learned Magistrate refused the said prayer by order dated 11.8.1983 since he had not got with him the records of U. C. Case No 11 of 1983 and ICC Case No. 83 of 1982. In this criminal revision, the petitioner's prayer is for a direction that G. R. Case No 237 of 1982 he tried along with ICC Case No. 83 of 1982 and the further proceedings in G. R. Case No. 237 of 1932 be stayed till the disposal of the criminal revision pending in this court filed against the order dismissing the complaint case in ICC 83 of 1982. The said criminal revision having been disposed of, this Criminal Revision No. 555 of 1983 has become infructuous. G. R. Case No. 237 of 1982 will, therefore, now proceed in accordance with law.
6. In the ultimate result, therefore, Criminal Revision No. 234 of 1933 if dismissed, Criminal Revision No. 156 of 1983 is allowed and Criminal Revision No. 555 of 1983 is dismissed as infructuous.