S. Padmanabhan, J.
1. I have heard counsel for the petitioner and the Public Prosecutor. This is a petition filed under Section 482 of the Cr. P.C. hereinafter referred to as 'the Code', for quashing the proceedings in C.C. 228 of 1984. Alleging that one Raman trespassed into the house of the petitioner and criminally intimidated him at about 1.30 p.m. on 22-3-1984, the petitioner filed a criminal complaint before the Judicial First Class Magistrate, Hosdurg on 31-3-1984. The Magistrate forwarded the complaint under Section 156(3) of the Code to the respondent for investigation. After investigation, a refer report was filed. Thereafter, the petitioner filed a private complaint on the same facts before the same Magistrate. Petitioner and 4 witnesses were examined in an enquiry under Section 202 of the Code. Thereafter, the complaint was dismissed by the Magistrate under Section 203 of the Code on the ground that there are no sufficient grounds for proceeding with the complaint. Meanwhile the respondent filed a charge-sheet against the petitioner before the same court for an offence punishable under Section 211 of the I..P.C. The Magistrate took cognizance of the offence and the case is now pending before him as C. C. 228 of 1984. It is under the above circumstances that the petitioner happened to approach this Court. The petitioner's case is that the action of the respondent is incompetent, irregular and illegal and the action of the Magistrate in having taken cognizance of the offence is also illegal.
2. In order to constitute an offence punishable under Section 211 of the I.P.C. for which the respondent has filed charge-sheet, there must be institution or causing the institution of any criminal proceeding or falsely charging any person for having committed an offence. That must be with intent to cause injury to the person. So also it must be with the knowledge that there is no just or lawful ground for such proceeding or charge. Commission of an offence punishable under Section 211 need not necessarily be in or in relation to any proceeding in any court. The offence can be committed independent of any proceeding in any court.
3. Section 195(l)(b)(i) of the Code provides that no court shall take cognizance of any offence punishable under sections of the I.P.C. including Section 211, when such offence is alleged to have been committed in or in relation to, a proceeding in any court, except on the complaint in writing by that court, or of some other court to which that court is subordinate. That provision is applicable to Section 195(1)(b)(ii) and (iii) also. So also Section 195(1)(a)(i), (ii) and (iii) provide that in relation to the offence mentioned in those provisions, no court shall take cognizance except on the complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. In this case we are concerned only with Section 195(1)(b)(i).
4. It cannot be said that the provision is enacted without any purpose. There is a total prohibition in taking cognizance of an offence except in a particular manner, namely, on the complaint in writing of the concerned court or some other court to which that court is subordinate. That provision must have been inserted because the legislature in its wisdom thought that the court is the best judge to assess and decide whether an offender has to be brought to justice even if an offence is proved to have been committed. In the course of the criminal proceeding, the court may have occasion to assess the nature of the offence, the circumstances in which it was committed as well as its scope and ambit for the purpose of assessing the expediency or otherwise for bringing the offender to justice. That is the reason why exclusive discretion has been given to the court with a prohibition to the Magistrate from taking cognizance in any other way except as provided therein. Setting the law in motion by any other source is not only not contemplated but specifically excluded also. It is specifically provided that even an oral complaint is not sufficient and there must be a written complaint. It is further stated that the complaint must be by the concerned court or the court to which it is subordinate.
5. Respondent was the police officer, who investigated the case on the basis of the direction given by the Magistrate under Section 156(3) of the Code. In the course of investigation, he might have collected informations sufficient for his satisfaction that the complaint was not bona fide. That may be sufficient for him to file a refer report before the court. Even the final decision on the refer report will have to be taken by the court. For that purpose, the court will have to assess the materials.
6. What is contemplated is a written complaint by the court and not a report by the police under Section 173 of the Code. It is true that in this case, the charge filed by the respondent before Court under Section 173(2) of the Code could be treated as a complaint under Explanation to Section 2(d) of the Code, which reads:
Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
The explanation for the purpose of treating the police report as a complaint defined in Section 2(d) of the Code, is applicable only in cases where police reports are filed after investigation regarding non-cognizable offences. In this case, the police report discloses only an offence punishable under Section 211 of the I.P.C., which is only a non-cognizable offence. Therefore, it could be argued that for the purpose of Section 195(1)(b)(i) of the Code, the police report could be treated as a complaint. But by no stretch of imagination, it could be considered, to be a complaint in writing filed by the concerned court. Even if it is treated that the provisions of Section 195(1)(b)(i) will not operate as a bar, there is the prohibition under Section 155 of the Code. Section 155(1) of the Code says that when an officer in charge of a police station receives information regarding the commission of a non-cognizable offence, he shall enter the information in a book kept for that purpose and refer the informant to a Magistrate. He cannot by himself register a case, investigate the same and take action. Section 155(2) acts as a specific prohibition. What Section 155(2) provides is that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. Therefore, in this case, there was a total prohibition by which the respondent was not entitled to register a case, investigate the same or file a report before court under Section 173(2) of the Code. There is no case that there was an order from the Magistrate directing or empowering the respondent to investigate and charge-sheet the case. The action of the respondent is evidently in violation of the specific provisions of Section 155(1) and (2) of the Code. Therefore the final report laid before court is without jurisdiction and it is an illegality.
7. In this case there is no possibility of a contention that the offence has not been committed in or in relation to any proceeding in a court. The complaint at first filed by the petitioner was referred by the Magistrate under Section 156(3) of the Code for investigation to the respondent. The respondent investigated the same and filed a refer report. 'In relation to any proceeding in any court' can apply even to a false report to the police or a false statement made during investigation with the intention that there shall, in consequence of that report or statement, be a trial in a criminal court. The Magistrate passing an order on a final report filed by the police under Section 173(2) of the Code referring the case as false, could be deemed to be a court passing a judicial order disposing of the information given to the police. In such a case also, complaint by the Magistrate is necessary as a condition precedent for a prosecution for an offence under Section 211 of the I.P.C. Authority for this position, could be had from Kamalapati v. State of West Bengal 1979 Cri LJ 679 : AIR 1979 SC 777. In this case that question itself will not arise. After the police report referring the case as false, the petitioner filed a private complaint before the same Magistrate on the same facts and after an enquiry under Section 202 of the Code, the Magistrate dismissed the complaint under Section 203 of the Code on the ground that there is no sufficient ground for proceeding. Therefore undoubtedly this case must come squarely within the total prohibition envisaged by Section 195(1)(b)(i) of the Code. The investigation as well as the final report by the respondent before court are therefore unauthorised and illegal.
8. Further there is the provision contained in Section 340 of the Code. That section contemplates an application and an enquiry if the Magistrate is of opinion that it is expedient in the interest of justice to do so. Such an enquiry is contemplated in regard to any offence referred to in Clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that court. In such an enquiry, the Magistrate will have to enter a finding and make a complaint in writing if he decides to do so. The complaint will have to be filed before another Magistrate having jurisdiction. These formalities are provided as safeguards against frivolous prosecutions regarding offences alleged to have been committed in relation to any proceeding before court. When there are such provisions, it is doubtful whether the Magistrate is justified in taking cognizance of such an offence mechanically on the basis of a police charge. So far as this case is concerned, it appears that the Magistrate has not gone into any of the provisions applicable. He had not duly considered the fact if at all anybody was competent to set the law in motion, it was only himself and nobody else. He did not consider whether it was expedient in the circumstances to bring the offender to justice. In fact knowingly or unknowingly, the Magistrate has surrendered his authority to the police and took cognizance of the offence without application of his mind. The discretion vested in him to decide whether it is expedient in the interests of justice to proceed against the petitioner was surrendered to the police. The provisions of Sections 195(1)(b)(i), 155(1) and (2) as well as Section 340 of the Code were completely lost sight of by the Magistrate. So also he. ignored the fact that taking cognizance is a judicial act which has to be exercised with due care and caution after proper application of the mind.
9. Action under Section 195(1) or Section 340 of the Code, even though available, is not intended or expected to be taken in all cases. It is for the concerned public servant or the court to evaluate the facts and circumstances and decide whether it is expedient in the interests of justice to bring the offender to justice. It is not for the police or anybody else to usurp that jurisdiction. In Daulat Ram v. State of Punjab : AIR1962SC1206 , the Supreme Court had occasion to consider an identical case. Even though that case related to an offence punishable under Section 182 of the I.P.C., the principles laid down therein are applicable to the present case also. That was also a case in which the complaint could have been filed only under the provisions of Section 195(1) of the Code. It was held therein:
Section 182 does not require that action must always be taken if the person who moves the public servant knows or believes that action would be taken. The offence under Section 182 is complete when a person moves the public servant for action. Where a person reports to a Tehsildar to take action on averment of certain facts, believing that the Tehsildar would take some action upon it, and the facts alleged in the report are found to be false, it is incumbent, if the prosecution is to be launched, that the complaint in writing should be made by the Tehsildar as the public servant concerned under Section 182, and not leave it to the police to put a charge-sheet. The complaint must be in writing by the public servant concerned. The trial under Section 182 without the Tehsildar's complaint in writing, is therefore without jurisdiction ab initio.
10. In that case, the police (appellant?) wrote a letter to the Tehsildar complaining that two persons beat and robbed him. The Tehsildar forwarded the letter to his superior officer, who in turn sent the matter to the police. The police enquired and reported the allegations to be false. Meanwhile the appellant entered into some sort of compromise and wanted the matter to be dropped. But when the police report came, the allegations were found false. Even when the Tahsildar asked the police to drop the matter, the police-launched a prosecution under Section 182 of the Code. The accused was convicted after due trial. It was the appeal filed by the accused that came up for consideration before the Supreme Court. The Supreme Court held that the Tehsildar was the public servant in that case and since he did not file the complaint in writing, the requirements of Section 195 were not satisfied. The Supreme Court further observed that the words 'no court shall take cognizance' indicate that there is an absolute bar against the court taking cognizance of the case except in the manner provided by the section. That decision has been followed by Khalid, J. (as he then was) in Venkiteswaran v. State of Kerala 1982 Ker LT 192 : 1982 Cri LJ 68.
11. From the above discussion, it follows that the action of the respondent in filing the report and the action of the Magistrate in taking cognizance of the offence are illegal and will amount to abuse of process of court resulting in miscarriage of justice. Therefore, the petition is allowed and the entire proceeding in C.C. 228 of 1984 on the file of the Judicial First Class Magistrate, Hosdurg is hereby quashed.