V.D. Misra, J.
(1) 'WHETHER an order passed by a Magistrate discharging an accused on a report made by the police under section, 173, Criminal Procedure Code, is an administrative or ajudicial order,' is the question which arises in these two criminal revisions Nos. 48 of 1966 and 235 of 1969, which are being heard together and will be disposed of by this order.
(2) In Criminal Revision No. 48 of 1966 the facts in brief are that the police registered a case under section 406, Indian Penal Code, against the petitioner and another person on the basis of a report lodged by Sqn. Ldr. P.S. Bhinder on September 3, 1963. On October 20, 1963, the petitioner, who had been arrested by the police on the basis of the said report, was released on bail. On March 15, 1965, the police made a report to the Subdivisional Magistrate staling that there was no case against the petitioner and he might be discharged. By his order dated April 16, 1965, the Subdivisional Magistrate discharged the petitioner. The police thereafter filed a Chalan against the petitioner's co-accused, Balbir Singh, under section 406, Indian Penal Code. The learned Magistrate on October 20, 1965, while hearing arguments for farming a charge against Balbir Singh, went through the documents referred to under section 173 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). He was of the opinion that a case under section 408, Indian Penal Code, was made out against the petitioner and directed the issue of bailable warrants for his appearance in Court. The petitioner duly appeared and raised an objection that in view of the previous order dated April 16, 1965, discharging him, the learned Magistrate had no jurisdiction to summon him as an accused as the prosecution never filed any revision against the said order of discharge. The Magistrate overruled this objection holding that the previous order of discharge was an administrative and not ajudicial order. The petitioner's revision petition was also dismissed by the learned Additional Sessions Judge.
(3) When the case came up before Ansari, J' he noticed that be bad referred a similar question to a larger Bench in K.C. Sood v. State, Criminal Revision No. 519 of 1968 which was decided on September 27, 1970 (1) but this question was left undecided as it was found unnecessary to express any opinion on it. Feeling that the question is an important one on which there is a divergance of opinion among the several High Courts, he decided to refer the case to a larger Bench.
(4) In Criminal Revision No. 235 of 1969 the petitioner, Shrimati Kamla Devi, lodged a report with the police on March 17, 1968, alleging that her minor daughter had been kidnapped by three persons named therein. After investigation, the police sent a report to the Subdivisional Magistrate, that the report lodged by the petitioner was false, and the case against the persons named therein be cancelled. This report was accepted and the learned Subdivisional Magistrate discharged these persons who had surrendered themselves before him. He also ordered the prosecution of the petitioner under section 182, Indian Penal Code. This order was passed on August 9, 1968. On August 28, 1968, the police filed a complaint before Magistrate I Class, Delhi, against the petitioner under section 182, Indian Penal Code. Meanwhile, on August 19, 1968, the husband of the petitioner filed a complaint under section 363/34, Indian Penal Code, against the very same three persons mentioned by the petitioner in her report on the same facts. This complaint is still pending before the Magistrate.
(5) The petitioner was summoned by the Magistrate as an accused in connection with the complaint filed by the police under Section 182, Indian Penal Code. She raised an objection that the learned Magistrate could not take cognizance of the offence in the absence of a complaint by the Court in view of section 195(1)(b) of the Code. The Magistrate overruled the objection, and her revision petition was dismissed by the learned Additional Sessions Judge.
(6) When this case came up before Ansari, J. it was contended by the petitioner that the order of the Subdivisional Magistrate dated August 9, 1968 discharging the three accused and ordering the prosecution of the petitioner under section 182 Indian Penal Code was an order passed by him in judicial proceedings and that thereforee the learned Magistrate alone was competent to file a complaint against her for an offence under section 211 Indian Penal Code and that inasmuch as no such complaint had been filed by the Magistrate, section 195(1)(b) of the Code prohibited the Magistrate, before whom the police complaint was filed, from taking cognizance of the said complaint. The learned Judge found that the question 'whether an order passed by a Magistrate on a report made by the police under section 173 of the Code was an administrative or a judicial order' was necessary to be decided for the disposal of the case. Since the learned Judge had already referred a similar question to a larger Bench, he decided to refer this case also to a larger Bench.
(7) When the cases came up before the Division Bench it was noticed that in the Bench decision in K. C. Sood case (supra)(1); only one judgment of the Supreme Court in Dwgacharan Naik and others v. State or Orissa, : 1966CriLJ1491 has been mentioned, but various other judgments of the Supreme Court have not been referred.. It was also noticed that some observations in K.C. Sood (1) case needed re-consideration in the light of other Supreme Court judgments. The Bench, thereforee, decided to refer these cases to a Full Bench.
(8) A number of decisions of various High Courts taking different views on the question arising in these cases have been cited before us. Some of them may be noted. A Division Bench of the Patna High Court in Uma Singh and others v. Emperor Air 1933 Patna 242 (3) took the Magistrate's order directing a case, reported to him by the police under section 173 of the Code to be struck off is not judicial order but is purely administrative or ministerial. A similar view was taken by Blacker, J. of the Lahore High Court in Brahm Dev. v. Emperor, Air 1938 Lahore 469(4). A ful Bench of the Lahore High Court in Emperor v. Hayat Fateh Din, Air 1948 Lahore 184(5) after referring to a number of conflicting authorities of various High Courts as well held that where the police after investigation finds that the report of offence made to it is false and recommends to a Magistrate for cancellation of the report and the Magistrate cancels the report under section 173, the magistrate acts merely as an administrative or ministerial officer and not as a Court, and in such a case section 195 of the Code has no application. Similar view was taken in Mt. Raji w/o Khuda Baksh and others v. Allaudin M. Samo Mukhtiarkar, Air 1939 Sind 65, (6) Pukhraj v. Sheshmal, Attam Prakash. v. State, (1962) 64 P.L.R. 279 and Rangaswami Goundan v. Emperor, Air 1934 Madras 175 (9)
(9) A Division Bench of the Bombay High Court in Bajaji Appaji Kote v. Emperor, Air (33) 1946 Bom 7 after discussing the existing case law, held that where information relating to the commission of a cognizable offence is given to an officer in charge of a police station under section 154 of the Code, and is followed by an investigation by him, he is bound under S. 173(1) to complete it without any unnecessary delay, and if the complaint be held to be false and a summary is issued the offence under section 211, Penal Code, will have to be alleged to have been committed by the complainant in relation to the proceedings in the Magistrate's Court which ended in an issue of the summary. It was also held that a Magistrate passing an order on a final report of the police sent after the investigation under S. 173 of Code should be deemed to be a Court passing a judicial order disposing of the information given to the police. Same view was taken by another Division Bench of this Court in State and others v. Murlidhar Govardhan and others, Air 1960 Bombay 240. (11) Similar view was taken by a Division Bench of the Saurashtra High Court in State v. Vipra Khimji Gangaram, Air 1952 Sau 67 (12), S.P. Jaiswal v. The State and another 1953 P.L.R. 77 and E.Pedda Subba Reddy and others v. State and another, : AIR1969AP281 .
(10) In our opinion, the observations made by the Supreme Court in various judgments have resolved this conflict.
(11) In Abhinandan Jha and others v.DineshMishra, : 1968CriLJ97 their Lordships of the Supreme Court considered the import of various sections including section 173 of the Code of Criminal Procedure. While dealing with the police report under section 169 of the Code referred to as 'final report' recommending the discharge of the accused, Vaidialingam, J' speaking for the Court, observed thus :
'NOW,the question as to what exactly is to be done by a magistrate, on receiving a report, under section 173, will have to be considered. That report may be in respect of a case, coming under section 170, or one coming under section 169. We have already referred to section 190, which is the first section in the group of sections headed. 'Conditions requisite for Initiation of Proceeding's. Sub-section (1), of this section, will cover a report sent, under section 173. The use of the words 'may take cognizance of any offence,' in sub-section (1) of section 190, in our opinion, imports the exercise of a 'judicial discretion' and the Magistrate, who receives the report, under section 173, will have to consider the said report and judicially take a decision, whether or not to take cognizance of the offence.'
(12) Again, while dealing with section 169 of the Code, the learned Judge observed thus :
'..........the provisions of section 169 of the Code of Criminal Procedure, are relevant. They specifically provide that even though on an investigation, a police officer, or other investigating Officer, is of the opinion that there is no case for proceeding against the accused, he is bound, while releasing the accused, to take a bond from him to appear, if and when required, before a Magistrate. This provision is obviously to meet a contingency of the Magistrate, when he considers the report of the investigating Officer, and judicially takes a view different from the police.'
A.N.Ray, J' speaking for the Supreme Court in R.N. Chatterji v. Havildar Kuer Singh. 1970 (1) S.C.C. 296 (16) again observed thus :
'THEprovisions in the Criminal Procedure Code, to which I ve referred, indicate two broad features : first the formation of an opinion in an investigation is left to the police ; and, secondly, the magistrate exercises judicial functions in dealing with the report submitted by the police.'
(13) These observations leave no room for doubt that when the report is considered by the Magistrate under section 173 of the Code, he acts judicially and not administratively, and passes a judicial order. The nature of the order will remain the same whether the Magistrate decides to accept the report submitted by the police or takes a view different from the one taken by the police.
(14) Mr. B.R. Saini, learned counsel for the petitioner, in Criminal Revision No. 48 of 1966, further contends that the learned Magistrate had no jurisdiction to review or revise the earlier order accepting the report of the police discharging the petitioner. In view of the Division Bench judgment of this Court in B. D. Sethi v. V. P. Dewan, : 7(1971)DLT162 , (17) this contention of the learned counsel has no force. The previous order of discharge of the petitioner neither amounts to an acquittal nor is a final order. The petitioner could have been proceeded against for the same offence on the basis of a complaint lodged by a complainant. This order also does not amount to a judgment.
(15) In B. D. Sethi case (supra)(17), a similar question under different circumstances had arisen. In that case the Magistrate had dismissed a complaint for default of appearance of the complainant and discharged the accused. Thereafter, he dicided to resummon the accused after reviving the complaint. Following Dr. Hori Ram Singh v. Emperor, and Kuppuswami Rao v. The King it was held thus:
'THECode of Criminal Procedure does not anywhere define what judgment is. However, section 367 of the Code lays down as to what shall be the contents of a Judgment.
According to this section the judgment should contain the point or points for determination in the case before the Court and the decision on those points. The court is also required to give reasons why it has reached a particular conclusion It is only when these requirements are fulfillled that a particular order may be called a judgment. Section 370 of the Code makes a special provision for the judgments of the Presidency Magistrate's court and lays down in detail what has to be recorded by him. These provisions show that before it can be said that a particular order amounts to a judgment of a criminal court, it must contain the points for determination, the decision of the court on those points and reasons for coming to that conclusion. In other words, it must result in either acquittal or conviction of the accused person.' It was also observed thus:
'ASlong as the order of the magistrate does not amount to a Judgment or a final order there is nothing in the Code of Criminal Procedure prohibiting the magistrate from entertaining a fresh application asking for the same relief of the same facts or from reconsidering that order.'
(16) Thus in the instant case it cannot be held that the learned Magistrate had no right to summon the petitioner as an accused after he had been discharged by an earlier order accepting the report of the police under section 169 of the Code. This revision is, thereforee, dismissed.
(17) In Criminal Revision No. 235 of 1969 the further question to be decided is whether the Magistrate could take cognizance of the police complaint in contravention of the provisions of section 195(1)(b) of the Code?
(18) Section 195(1)(b) of the Code prohibits a Court from taking cognizance of the offence punishable under section 211 of the Indian Penal Code when it is committed 'in, or in relation to, any proceeding in any Court' except on the complaint in writing of such Court or of Court to which it is subordinate. This prohibition will apply irrespective of the fact whether the proceedings in a Court are actually pending or have already concluded. However, if the offence is not committed in, or in relation to. any proceeding in any Court, this prohibition will not apply and a Court will be competent to take cognizance of the offence on the basis of complaint filed by the police or the aggrieved person.
(19) There is a conflict of judicial opinions of various High Courts about the import of the words 'in, or in relation to, any proceeding in any Court' used in section 195(1)(b) of the Code. In K. C. Sood case (supra) it was held that if a person was not put upon a trial nor any proceeding taken against him before a Magistrate it could not be said that the making of a false report to the police falsely charging a person with the commission of an offence amounted to an offence under sec. corporation 211 of the Indian Penal Code 'in, or in relation to, any roceeding in any Court.' It had left open the question whether the order of a Magistrate discharging the accused under section 173(3) of the Code on the police report was an administrative or a judicial order. A Division Bench of the Lahore High Court in Muhammada v. Emperor, (1928) 29 Cri. L.J. 605, after considering a number of cases decided to follow a Division Bench of the Allahabad High Court in Kashi Ram v. Emperor, 13 Cri. L.J. 702, and held that where a person was never charged in any Court, nor was he ever put upon his trial before any Magistrate, nor were any proceedings taken against him before the Court, it could not be said that the offence under section 211 of the Indian Penal Code was an offence which was committed in, or in relation to, any proceeding in Court. A Full Bench of the Lahore High Court in Hayat Fateh Din case (supra)(5), after considering a large number of cases did not follow Bajaji Appaji Kote case (supra) (10) and held that the preponderance of authority supported the view that where a false charge made against a person in a report to the police was not the subject matter of any judicial proceeding in Court, section 195(1)(b) of the Code had no application and consequently it was open to the police to prosecute him under section 211 of the Indian Penal Code. Muhammada case (supra) (20) was thus approved. Similar view was taken in Kochamvelli Kunhammad v. State of Kerala, : AIR1966Ker242 , and Satish Chandra Sadhukhan and others v. Balaram Banerjee, 1968 Cri L.J. 1434. (23).
(20) A Divisional Bench of the Bombay High Court in J. D. Boywalla v. Sorab Ruslomji Engineer, 42, Cri L.J. 814, (24) held that the order of the Magistrate discharging the accused on a police report is a judicial order and, 'therefore, the alleged false charge was made in, or in relation to, a proceeding in Court. It resulted in the man being actually arrested and brought before the Magistrate and dealt with by the Magistrate. thereforee, the complaint must be that of the Magistrate, and as there is no such complaint, the proceedings must be quashed. 'Another Division Bench of the same Court in Bajaji Appaji Kote case; (supra) (10) took a similar view. This was followed by a Division Bench of Saurashtra High Court in Vipra Khimji Gangaram case (supra) (12). A Division Bench of the Allahabad High Court in Badri v. State, 1963(2) Cri. L.J. 64 followed these two decisions and held thus :
'WEare of the opinion that when the Magistrate remanded the complainant and others and when he entertained their bail applications and passed orders on them he held 'proceedings' within the meaning of section 195(1)(b). The word 'proceeding' is not defined in the Code though 'judicial proceeding' is, and apparantly is used in a wider sense than 'judicial proceeding'.
It was also held that proceedings that come into existence after cognizance of an offence has been taken by a Magistrate, were not the only proceedings contemplated by section 195(1)(b) of the Code, and a proceeding held by a Magistrate on receipt of an investigating officer's report made under section 167(1) of the Code is the proceeding within the meaning of section 195(1)(b). The proceedings come into existence when the Magistrate passes a remand order or passes orders on an application for bail.
(21) In M.L. Sethi v. R. P. Kapur and another, : 1967CriLJ528 the appellant had lodged a report with the police and a cognizable offence was registered against the respondent and investigated. Before investigation could be completed the respondent filed a complaint under section 211 of the Indian Penal Code against the appellant of which cognizance was taken by the Court. Thereafter, the respondent was arrested by the police and a charge sheet was submitted. However, the respondent was ultimately discharged. The appellant contended that the Court could not take cognizance of the offence under section 211 of Indian Penal Code on the respondent's complaint in view of the bar under section 195(1)(b) of the Code. Their Lordships of the Supreme Court took note of various cases. After discussing Ghulam Rasul v. Emperor, Air 1936 Lahore 238,(27) it was observed thus :
'If the learned Judge intended to say that without any proceeding being taken by the Magistrate in the case which was investigated by the police it was still essential that a complaint should be filed by the Magistrate simply because a subequent proceeding following the police investigation was contemplated, we consider that his decision cannot be accepted as correct.'
ITwas also observed :
'THEquestion on which the decision in the present cases 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,I.P.C. in the complaint filed before him was alleged to have been committed in such a proceeding, or in 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.'
The appellant had also raised a contention that the order of discharge passed by the Magistrate under section 173 of the Code is a Judicial order. After noting various authorities in respect of this contention it was observed thus :
'......IT is not at all necessary to express any opinion on the correctness of the view that the order passed under S. 173 Cr. P.C., by the Magistrate is ajudicial order when he either, discharges the bond under sub-s. (3) of S. 173, or takes cognizance under S. 190(1)(b), Criminal Procedure Code . Even if it be accepted that the final orders to be made by the Magistrate are judicial orders, the only conclusion that follows is that at the last stage, on receipt of the report under S. 173, the Magistrate has to act in his judicial capacity. Until that stage is reached there is no intervention by the Magistrate in his judicial capacity or as a Court. Consequently, until some occasion arises for a Magistrate to make ajudicial order in connection with an investigation of a cognizable offence by the police no -question can arise of the Magistrate having the power of filing a complaint under S. 195(1)(b), Criminal Procedure Code .'
(22) In our opinion, a false charge in terms of section 211 of the Indian Penal Code made to the police should result in a proceeding in a Court before section 195(1)(b) can become applicable. In a case where after a false report has been made to the police and no proceeding takes place in a Court, a Magistrate can take cognizance of the offence under section 211 of the Indian Penal Code on the basis of a police report. However, where judicial order has to be passed by a Magistrate in proceeding arising out of a false charge having been made in the report to the police, proceedings under section 211 of the Indian Penal Code can validly be brought about only on the basis of the complaint filed by the Magistrate in terms of section 195(1)(b) of the Code.
(23) In the instant case the petitioner had lodged a report with the police charging the persons named therein with the commission of an offence. It was registered and investigated. After completing the investigation the police made a report under section 173 of the Code to the Magistrate who passed an order discharging the accused. This order has been held 'judicial order' by us. The result is that if the report lodged by the petitioner is found false, an offence punishable under section 211 of the Indian Penal Code has been committed in relation to proceedings in a Court, and unless there is a complaint in writing by the Court in terms of section 195(1)(b), no cognizance of the offence can be taken by a Court.
(24) It is true that in the instant case the police had filed the complaint in respect of the offence under section 182 of the Indian Penal Code and not under section 211 of the Indian Penal Code. But the facts that a false charge of kidnapping was made against the persons named in the report knowing that there was no just or lawful ground for such charge, disclose the commission of an offence under section 211 of the Indian Penal Code which is a graver form of offence than the one under section 182 of the Indian Penal Code. The police cannot be allowed to circumvent the law and set at naught the prohibition contained in section 195(1)(b) of the Code by the subterfuge of filing a complaint under section 182 of the Indian Penal Code. Their Lordships of the Supreme Court in Durgacharan Naik and others v. State of Orissa, : 1966CriLJ1491 observed thus :
'WEhave expressed the view that S. 195, Criminal Procedure Code . does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is included within the ambit of the section, but we must point out that the provisions of S. 195 cannot be evaded by resort- ing to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code ., though in truth and substance the offence falls in the category of sections mentioned in S. 195, Criminal Procedure Code . Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S. 195, prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.'
(25) The bar under section 195(1)(b) of the Code will also become applicable in a case where a person lodges a report with the police falsely charging another with the commission of an offence and before any proceedings take place in a Court in connection with that report, the informant files a complaint before a Magistrate based on the same facts and allegations on which the first information report was registered. The reason is that once the Magistrate has taken cognizance of the offence it is for him to decide whether any person has been charged falsely with the commission of an offence by the complainant knowing that there was no just or lawful ground for such charge against him; and thereafter to decide further whether he should lodge a complaint under section 211 of the Indian Penal Code against the complainant. Permitting the police to file a complaint under section 211 of the Indian Penal Code, would virtually lead to setting at naught the bar contained in section 195(1)(b) of the Code.
(26) Their Lordships of the Supreme Court in State of Punjab v. Brij Lat Palta, : 1969CriLJ645 while approving M. L. Sethi case, (26) observed thus :
'ITseems to us that so far as prosecution under S. 211 of the Penal Code is concerned, once a complaint filed by the informant is being proceeded with which is based on the same facts and allegations on which the first information was registered it is not open to a Magistrate to take cognizance of any offence alleged to have been committed under that section unless there has been proper compliance with the provisions of S. 195(1)(b) of the Criminal Procedure Code . It will lead to very anomalous results if any other view is accepted e.g., if the complaint is ultimately dismissed and the Magistrate refuses to lodge a complaint under S. 195(1)(b) its provisions will be defeated or circumvented if the police can move the Magistrate to take cognizance on a police report of an offence under S. 211..........
ASregards the position in similar circumstances in respect of an offence under S. 182, the conflict of judicial opinion has already been noticed. The text books are full of a vast number of cases taking one view or the other. In our opinion the present case is of the type where the facts stated in the police report disclosed an offence under S. 211 Indian Penal Code. It is true that the offence under S. 182 is distinct from the one under S. 211 though the latter is more serious and may include the offence under the former section. The Magistrate can take cognizance of an offence under S. 182 on a complaint in writing of the police officer by virtue of the provisions contained in Section 195(1)(a) of the Criminal Procedure Code ode. But it would virtually lead to the circumvention of the provisions of Section 195(1)(b) if the proceedings under Section 182 can continue where the offence disclosed is covered by Section 211, Indian Penal Code and a complaint is pending which has been filed by the informant on the same facts and allegations as were contained in his first information report.'
(27) In the instant case the information was given to the police by the petitioner whereas a complaint on the same facts and allegations as contained in the first information report was lodged by the petitioner's husband. This complaint, as already stated, was entertained and is still pending. It is contended that only if the petitioner had filed the complaint with the Magistrate the bar under section 195(1)(b) would become applicable. We do not find force in this contention. The provisions of clauses (b) and (c) of sub-section (1) of Section 195 may here be reproduced with advantage :
'(1)No Court shall take cognizance-
(A)* * *
(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 other Court to which such Court is subordinate; or
(C)Of any offence described in section 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 party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.'
The general rule is that any person committing an offence can be proceeded against. Cognizance of the offence can be taken by a Magistrate under section 190(1) of the Code upon receiving a complaint of facts which constitute such offence. Section 195 is an exception creating a bar to the cognizance being taken in respect of offence mentioned in this section unless the conditions mentioned therein are fulfillled. Offences mentioned in clauses (b) and (c) can be committed by a party to the proceeding as well as by a person who is not a party to it. But clause (b) does not lay down, unlike clause (c), that the offence should have been committed by a party in, or in relation to, any proceeding in any Court. The omission of the words 'by a party' in clause (b) is not without significance. The intention of the legislature clearly is that whereas offences mentioned in clause (c) should have been committed by a party to the proceeding in the Court before the bar to this section would become applicable, this bar will become applicable the moment any offence punishable under any of the sections mentioned in clause (b) is alleged to have been committed in, or in relation to, any proceeding in any Court, irrespective of the fact whether an offender is a party to the proceeding or not. It is thus not necessary that complaint should have been filed by the petitioner before the bar under section 195 of the Code would become applicable,
(28) The result of the above discussion is that this revision is accepted, and the impugned order is set aside and the proceedings are quashed.