Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
SK. BANNU AND SHANKAR
DATE OF JUDGMENT12/09/1980
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION:
1981 AIR 22 1981 SCR (1) 694
1980 SCC (4) 286
ACT:
Code of Criminal Procedure, 1898-Section 195(1) (b) and
(c) and Section 476-Scope of.
Words and phrases-"In or in relation to"-meaning of.
HEADNOTE:
Section 195(1)(b) of the Code of Criminal Procedure,
1898 provides that no Court shall take cognizance of any
offence punishable under section 205 (among others) I.P.C.
when such offence is alleged to have been committed in or in
relation to any proceedings in any Court, except on the
complaint in writing of such Court. Clause (c) of this sub-
section provides that no Court shall take cognizance of any
offence described in, among others, section 471 when such
offence is alleged to have been committed by a party to any
proceedings in any Court in respect of a document produced
except on the complaint in writing of such Court. Section
476 Cr.P.C. provides that when any Criminal Court is,
whether on application made to it or otherwise, of opinion
that it is expedient in the interests of justice that an
inquiry should be made into any offence referred to in
section 195(1)(b) and (c) which appears to have been
committed in or in relation to a proceeding in that court
such court may make a complaint thereof and forward the same
to a Magistrate First Class.
The prosecution alleged that in an application for
release of a person arrested under the Bombay Prohibition
Act on bail accused no. 2 identified the surety and that he
attested the bail application. Accused no. 3 was the scribe
of the bail application and the affidavit accompanying it.
The Magistrate ordered his release on bail.
The case was transferred to another judicial magistrate
who, when the accused failed to appear before him on the
date of hearing, issued notice to the surety. The person to
whom the notice was issued (the purported surety) appeared
before the Magistrate and stated that he had never stood
surety in the case, nor had he ever made an affidavit nor
signed any papers in this regard and being a literate person
there was no question of putting his thumb impression on the
affidavit and bail bond.
Accused no. 1 who was later named by accused no. 2 as
the real surety admitted before the trial Magistrate that
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the bail application and the affidavit had been thumb marked
by him at the instance of accused no. 2 and that he had no
knowledge about the contents either of the application or of
the affidavit. The Magistrate made a complaint to the
judicial Magistrate, First Class for prosecution of the
three accused for the offences under sections 205, 419, 465,
467 and 471 IPC. On finding that there was a prima facie
case against all the accused the Magistrate committed them
for trial.
695
The Additional Sessions Judge acquitted accused no. 3
but found accused no. 1 guilty of offence under sections
205, 419, 465 and 471 I.P.C. and accused no. 2 for offences
under section 205 read with sections 109, 419, 465 and 471
read with section 109 I.P.C. and sentenced them variously.
On appeal by accused nos. 2 and 3 the High Court held
that the proceedings before the transferee Magistrate were
not the same proceedings or continuation of the same
proceedings which were before the previous court in which or
in relation to which the offence was committed within the
meaning of section 476 read with section 195, Cr.P.C. and
that such a complaint could have been made only by the
magistrate who released the accused on bail prior to the
initiation of the case or his successor in office in that
court but since the transferee Magistrate was not the
successor in office of the Magistrate granting the bail, the
proceedings before the committing Magistrate were without
jurisdiction.
Allowing the appeals,
^
HELD : 1. The High Court was not right in holding that
the bail proceedings before the ’first’ Magistrate were
"distinct and different" from those initiated on police
challan before the transferee Court and that, therefore, the
latter was not competent to hold a preliminary inquiry under
section 476 Cr.P.C. and/or to make a complaint for
persecution of the respondents in respect of offences under
sections 205, 419, 465, 467 and 471 IPC. [706A-C]
2. An offence under section 205 I.P.C. will fall within
the ambit of clause (b) and an offence under section 471
IPC, will fall under clause (c) of section 195(1). The words
"in or in relation to" occurring in clause (b) are not
repeated in clause (c). But these words occur in section 476
both with reference to clause (b) and clause (c) of section
195(1). [701B].
3. The settled position on the interpretation of these
provisions is that the bar in section 195(1)(b) does not
apply if there is no proceeding in any court at all when the
offence mentioned in section 195(1) had been committed. In
other words, the section contemplates only proceedings
pending or concluded and not in contemplation. [701H].
In the instant case, the forged bail-bond and the false
affidavit were presented in bail proceedings before the
’first’ Magistrate. That Magistrate had jurisdiction to try
the case which was then under investigation. While
considering a bail application of a person accused of an
offence under investigation of the police, the Magistrate
acts as a court, the proceedings in the bail application
being judicial proceedings. [702B].
Kamalapati Trivedi v. State of West Bengal A.I.R. 1979
S.C. 777 relied on.
4. The bail proceedings before the ’first’ Court could
not be viewed in isolation but had to be taken as a stage in
and part of the entire judicial process, the second stage of
which commenced on presentation of the challan by the police
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in the court of the magistrate for an enquiry or trial of
the accused person to whom the bail had been granted.
[702G].
5. The very terms of the bail bond in the instant case
show that they were intended to be a preliminary part of the
proceedings of inquiry or trial before the magistrate
commencing with the presentation of a charge-sheet under
section 173 Cr.P.C. against the accused. This being the real
position, the bail proceedings before the ’first’ magistrate
and the subsequent proceedings before
696
the transferee magistrate commencing with the presentation
of the challan by the police for the prosecution of the
accused in the prohibition case could not be viewed as
distinct and different proceedings but as stages in and
parts of the same judicial process. Neither the time lag
between the order of bail and the challan, nor the fact that
on presentation of the challan, the case was not marked to
the ’first’ Magistrate but was transferred under section 192
of the Code to the transferee magistrate, would make any
difference to the earlier and subsequent proceedings being
parts or stages of the same integral whole. If the earlier
proceedings before the ’first’ court and the subsequent
proceedings before the transferee court were stages in or
parts of the one and the same process, then it logically
follows that the aforesaid offences could be said to have
been committed "in or in relation to" the proceedings in the
Court of the transferee Magistrate also, for the purpose of
taking action under section 476 of the Code. [703D-H].
6. The rationale behind decided cases is that if the
two proceedings, one in which the offence was committed and
the other, the final proceedings in the same or a transferee
court are, in substance, different stages of the same
integrated judicial process, the offence can be said to have
been committed "in relation to" the proceedings before the
Court to which the case was subsequently transferred or
which finally tried the case. By the same token, the
offences under sections 205 and 471 Penal Code in the
present case can be viewed as having been committed "in
relation to" the proceedings before the court of transferee
magistrate to whom the case was transferred for disposal.
Therefore, the transferee magistrate was competent to make a
complaint in respect of the offences, after conducting a
preliminary inquiry under section 476, Cr.P.C. [704F-H].
In the instant case, it cannot be disputed that the
bail proceedings before the ’first’ magistrate were judicial
proceedings before a court, although such proceedings took
place at a stage when the offence against the accused, who
was bailed out, was under police investigation. [705G].
Nirmaljit Singh Hoon v. The State of West Bengal &
Ors., A.I.R. 1972 S.C. 2639 distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
282-283 of 1974.
From the Judgment and Order dated 19-4-1973 of the
Bombay High Court (Nagpur Bench) Nagpur in Criminal Appeal
Nos. 216 and 243 of 1971.
J. L. Nain and M. N. Shroff for the Appellant.
J. C. Batra (Amicus Curiae) for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-These two appeals by the State of
Maharashtra are directed against a common judgment, dated
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April 19, 1973, of the High Court of Bombay, Nagpur Bench,
Nagpur. Both will be disposed of by this judgment. They
arise out of these facts:
697
Three persons, namely, Shankar, Sk. Bannu and Mohamad
Nazir were tried for offences punishable under Sections 205,
419, 465, 467 and 471 of the Indian Penal Code, on the basis
of a complaint made on August 12, 1978 by Shri R. K.
Karandikar, Judicial Magistrate, First Class, Akola, under
Section 476 read with Section 195 of the Code of Criminal
Procedure. Sk. Bannu, accused 2 was, at the relevant time,
serving as a Clerk to an Advocate at Akola. Mohamad Nazir,
accused 3, is the son of Sk. Bannu. Accused 1, Shankar, was
a milkman residing at Dabki Road, Akola.
On October 25, 1968, in respect of offences under
Section 85(1)(2) and (3) of the Bombay Prohibition Act, one
Deolal Kishan was arrested. He was produced before Shri L.
G. Deshpande, Judicial Magistrate (First Class), Akola, and
was remanded to custody till November 2, 1968.
On November 1, 1968, an application was made before
that Court for releasing Deolal Kishan. Along with that
application, an affidavit was filed which purported to have
been sworn by one Gulabrao Rupchand Tikar as a surety. This
affidavit was sworn before the Senior Clerk (P.W. 2) and
accused 2, Sk. Bannu is alleged to have identified him as
Gulabrao and attested that application for this purpose. The
Senior Clerk accordingly accepted what they stated and he
made the necessary endorsement on the affidavit. Thus, on
the basis of that affidavit, Deolal Kishan was released on
bail on November 1, 1968. The Bail Application and the
affidavit were scribed by accused 3.
The case against Deolal Kishan was transferred on April
20, 1969 to the Court of Mr. Karandikar, Judicial Magistrate
(First Class), Akola, before whom it came up for hearing on
May 12, 1969. On that date, Deolal Kishan did not appear.
Consequently, the Court issued a non-bailable warrant
against him for his arrest and production. Notice was also
issued to the surety, Gulabrao Rupchand Tikar (P.W.3).
Gulabrao appeared before the Magistrate on. June 2, 1969 in
response to the notice and filed a reply in writing (Ex.
25/A) contending that he had never stood as surety for the
accused Deolal Kishan; and that he did not make any
affidavit, nor did he sign the application or the affidavit
or the bail bond. According to him, he was literate and
could sign his name, while the application and the
affidavit, in question, bore thumb-impressions of the
surety. Gulabrao denied that he swore any affidavit for
standing surety of Deolal Kishan. Thereupon, the Magistrate
recorded the statement of Gulabrao and initiated an inquiry.
He called Mohd.
698
Nazir, accused 3, the scribe of the bail application, and
recorded his statement. He also called accused 2, Sk. Bannu,
and directed him to produce the real surety on June 10, 1969
as the Magistrate was satisfied on the inquiry made by him
that the person named in the bail application as the surety
was not the real surety.
On November 9, accused 3, Mohd. Nazir, made an
application to the Magistrate on behalf of his father,
accused 2, that the real name of the surety was Shankar
Kishan Kawitkar. Thereupon, the Magistrate, on June 10,
1969, issued summons to accused 1, Shankar Kishan Kawitkar.
The latter appeared in response to the summons on June 17,
1969. The Magistrate recorded his statement (Ex. 29), in
which he admitted that the bail application and the
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affidavit had been thumb-marked by him at the instance of
accused 2, and that he had no knowledge about the contents
of the application and the affidavit.
On the preceding facts, the Magistrate made a complaint
to the Judicial Magistrate (First Class), Akola, for
prosecution of the three accused persons in respect of the
aforesaid offences. The complaint came up before Shri P. N.
Panchawadkar, Judicial Magistrate, who after holding an
inquiry under Section 207A of the Code of Criminal
Procedure, recorded the evidence of the material witnesses
and finding that there was a prima facie case against all
the accused. Accordingly, he committed them for trial to the
Court of Session.
The case came up for trial before the Additional
Sessions Judge, who, after recording the prosecution
evidence, came to the conclusion that there was no case
against accused 3 and acquitted him. He found that accused
1, Shankar was guilty of an offence under Section 205 of the
Indian Penal Code and convicted him under that Section and
sentenced him to suffer rigorous imprisonment for three
years and a fine of Rs. 1,000, or, in default of payment of
fine, to six months further rigorous imprisonment. Accused 1
was further convicted in respect of offences under Sections
419,465 and 471, Penal Code, and was sentenced to two years’
rigorous imprisonment on each count, with a direction that
the sentences on all the counts, would run concurrently.
Accused 2, Sk. Bannu was convicted under Section 205 read
with Section 109 of the Indian Penal Code and sentenced to
three years’ rigorous imprisonment and a fine of Rs. 1,000,
or, in default, to suffer six month’s further rigorous
imprisonment. He was further found guilty of the offences
under Sections 419, 465 and 471 all read with Section 109,
Penal Code, and sentenced to two years’ rigorous
imprisonment on each count, with a direction that the
sentences would run concurrently.
699
Against the judgment of the learned Additional Sessions
Judge, Shankar and Sk. Bannu preferred an appeal before the
High Court. The High Court held that the proceedings before
Shri Karandikar are not the same proceedings or continuation
of the same proceeding which was before Shri L. G.
Deshpande, the previous court, in which or in relation to
which the offence is said to have been committed within the
meaning of Section 476 read with Section 195, Criminal
Procedure Code; that the investigation stage is quite a
distinct proceeding than the one which came to be
transferred on the file of Shri Karandikar, it being a
regular trial. In this view of the matter, the High Court
concluded:
"We are of the view that such a complaint could
have only been made by Mr. L. G. Deshpande who had
released the accused on bail prior to the initiation of
the case or his successor-in-office in that Court. So
far as these proceedings in which the accused were
released on bail by Mr. L. G. Deshpande are concerned,
Mr. Karandikar cannot be said to be the successor-in-
office of Mr. L. G. Deshpande."
On this reasoning, the High Court held that the complete
proceedings before the Committing Magistrate were without
jurisdiction, and by a writ quashed the same. In the result,
the appeals of Shankar and Sk. Bannu were allowed and their
convictions were set aside. The High Court, however, granted
a certificate under Article 134 of the Constitution that the
case was fit for appeal to this Court.
The question that falls for consideration in this case
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is, whether Shri Karandikar, Judicial Magistrate who made
the complaint for prosecution of the accused in respect of
offences under Sections 205, 419, 465, 467 and 471, Penal
Code, was competent to initiate the proceedings within the
meaning of Section 195 read with Section 476 of the Code of
Criminal Procedure, 1898. The relevant provisions of that
Code are as under:
"S. 195 (1) No Court shall take cognizance-
(a).............................
(b) of any offence punishable under any of
the following sections of the same Code, namely,
Ss. 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 proceedings in any Court, except on the
complaint in writing of such Court or of some
other Court to which such Court is subordinate; or
700
(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.
(2) In clauses (b) and (c) of sub-section (1), 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.
(3) For the purposes of this section, a Court
shall be deemed to be subordinate to the Court to which
appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a
Civil Court from whose decrees no appeal ordinarily
lies to the principal Court having ordinary original
civil jurisdiction within the local limits of whose
jurisdiction such Civil Court is situate:
Provided-
(a) where appeals lie to more than one Court,
the appellate Court of inferior jurisdiction shall
be the Court to which such Court shall be deemed
to be subordinate; and
(b) where appeals lie to a Civil and also to
a Revenue Court, such Court shall be deemed to be
subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding
in connection with which the offence is alleged to
have been committed."
The material part of Section 476 of the Code of 1898 is
as follows:-
"S. 476. Procedure in cases mentioned in Section
195.-
(1) When any Civil, Revenue or Criminal Court, is,
whether on application made to it in this behalf or
otherwise, of opinion that it is expedient in the
interests of justice that an inquiry should be made
into any offence referred to in Section 195, sub-
section (1), clause (b) or clause (c), which appears to
have been committed in or in relation to a proceeding
in that Court, such Court may, after such preliminary
inquiry, if any, as it thinks necessary, record a
finding to that effect and make a complaint thereof in
writing signed by the presiding officer of the Court,
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and shall forward the same to a Magistrate of the First
Class having jurisdiction............... "
701
Section 476A gives powers to the superior court to
complain when the subordinate court has omitted to do so.
It may be noted that an offence under Section 205,
Penal Code, as in the present case, will fall within the
ambit of clause (b) and an offence under Section 471, Penal
Code will fall under clause (c) of sub-section (1) of
Section 195. The words "in or in relation to" which occur in
clause (b) are not repeated in clause (c). But these words
occur in Section 476 both with reference to clause (b) and
clause (c) of Section 195(1). The interpretation of these
words is not res integra. There was a conflict of judicial
opinion in regard to the meaning and ambit of these words.
One line of decisions took the view that the words "in
relation to" are vide enough to cover a proceeding in
contemplation though it may not have begun at the date of
the commission of the offence, but was subsequently
instituted in court. This view is no longer good law in view
of the pronouncement of this Court in M. L. Sethi v. R. P.
Kapur. That case related to the commission of an offence
under Section 211, Indian Penal Code. The question was
whether the expression "in or in relation to", according to
clause (b) of sub-section (1) of Section 195 is applicable
to cases where there can even in future be a proceeding in
any court in relation to which the offence under Section
211, Indian Penal Code may be alleged to have been
committed. The Court answered this question in the negative,
with these observations:
"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
been a proceeding which had already concluded and the
offence under s. 211 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(1) (b) would come into operation."
Now, thus, the settled position is that the bar in
Section 195(1)(b) does not apply if there is no proceeding
in any court at all when the offence mentioned in the
aforesaid clause (1) has been
702
committed. In other words, the Section contemplates only the
proceedings pending or concluded and not in contemplation.
In the instant case, it is common ground that the
forged bail-bond and the false affidavit were presented in
the court of Shri Deshpande, Magistrate in bail proceedings.
Shri Deshpande, it is not disputed before us, had also the
jurisdiction to try the case which was then under
investigation with the police. While considering a bail
application of a person accused of an offence under
investigation of the police, the Magistrate acts as a
’court’, the proceedings in the bail application being
judicial proceedings. This position has been clarified
recently by this Court in Kamalapati Trivedi v. State of
West Bengal. It was held by this Court (per majority) that
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while deciding the question of bail, the Magistrate cannot
but be regarded as a Court acting judicially,
notwithstanding the fact that an offence of the accused is
still under investigation by the police or has progressed to
the stage of an inquiry or trial by the Magistrate. It was
added that the taking cognizance of any offence by a
Magistrate under Section 190 is not a condition precedent
for him to be regarded as a Court. It was further explained
that an order of bail passed by a Magistrate, also, decides
the rights of the State and the accused and is made by the
Magistrate after the application of his mind and therefore
in the discharge of his judicial duties which factor
constitutes it an act of a Court. It was further observed:
".. all orders passed by a Magistrate acting
judicially (such as orders of bail and those passed
under sub-section (3) of s. 183 of the Code discharging
an accused or orders taking cognizance of the offence
complained of) are parts of an integral whole which may
end with a definitive judgment after an inquiry or a
trial, or earlier according to the exigencies of the
situation obtaining at a particular stage, and which
involves, if need be, the adducing of evidence and the
decision of the Magistrate on an appreciation thereof.
They cannot be viewed in isolation and given a
character different from the entire judicial process of
which they are intended to form a part."
Considered in the light of the above enunciation in
Kamalapati Trivedi’s case, the bail proceedings before the
Court of the Magistrate, Shri Deshpande could not be viewed
in isolation but had to be taken as a stage in and part of
the entire judicial process the second stage of which
commenced on presentation of the challan by the Police in
the Court of the Magistrate for an enquiry or trial of the
703
accused person to whom the bail had been granted. Indeed,
the surety-bond, which is alleged to have been forged in the
name of Gulabrao Roopchand Tikar, in terms, was intended to
be used for procuring the attendance of the accuses, by the
Court before whom the chargesheet under Section 173, Cr.P.C.
might be presented by the Police for inquiry or trial. The
material part of the surety-bond dated November 1, 1968,
rendered into English, reads as under:
"I undertake that the said Deolal Kishan, Maratha,
shall be present before the Court of the Judicial
Magistrate. First Class, Akola, or,...... before any
other Magistrate conducting the preliminary inquiry
...........to answer the charges, and on his failure to
do so, I do hereby bind myself to pay the sum of Rs.
500/- to the Government by way of fine."
Under the terms of the Personal Bond, accompanying the
surety bond, also, the executant had undertaken to appear
before the Judicial Magistrate, First Class, Akola or before
any other Magistrate who would hold an inquiry into or trial
of charges framed against him. In other words, the very
terms of these bail-bonds show that they were intended to be
a preliminary part of the proceedings of inquiry or trial
before the Magistrate commencing with the presentation of a
charge-sheet under Section 173, Cr.P.C. against the accused.
This being the real position, the bail proceedings before
Shri Deshpande, and the subsequent proceedings before Shri
Karandikar commencing with the presentation of the challan
by the Police for the prosecution of Deolal Kishan, could
not be viewed as distinct and different proceedings but as
stages in and parts of the same judicial process. Neither
the time-lag between the order of bail and the challan, nor
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the fact that on presentation of the challan, the case was
not marked to Shri Deshpande but was transferred under
Section 192 of the Code, to Shri Karandikar, would make any
difference to the earlier and subsequent proceedings being
parts or stages of the same integral whole. Indeed, the
commission of the offences under Sections 205, 419, 465, 467
and 471, Penal Code, came to light only when Shri
Karandikar, on the basis of the forged surety-bond in
question, attempted to procure the attendance of the
accused. If the earlier proceedings before Shri Deshpande
and the subsequent proceedings before Shri Karandikar were
stages in or parts of the one and the same process-as we
hold they were-then it logically follows that the aforesaid
offences could be said to have been committed "in or in
relation to" the proceedings in the Court of Shri
Karandikar, also, for the purpose of taking action under
Section 476 of the Code.
704
In Behari Lal v. Sheikh Abdul Qadir Hamyari, it was
held by the High Court of Lahore that if a case or
proceeding in which the offence is committed has been before
various courts, all the courts have the jurisdiction to
complain, but normally, the court which finally tried the
case would be the proper court to make a complaint. The
Calcutta High Court in Bhiku’s case, held that if a false
complaint made to a Magistrate is transferred under Section
192 of the Code of Criminal Procedure to another Magistrate,
the latter who had seisin of the case, can make a complaint.
In Maromma & Ors. v. Emperor, it was held by the High
Court of Madras that a false statement made during police
investigation before a Magistrate and recorded by him under
Section 164, Cr. P.C. regarding an offence of murder, which
is triable only by a Sessions Court, must be held to be "in
relation to" the trial in that Court and a complaint can be
made for the prosecution of the persons giving that false
statement for an offence under Section 193, Penal Code, by
the Sessions Court. Similarly, in Athi Ambalayaran & Ors. v.
Emperor, a Division Bench (consisting of Waller & Pandalai
JJ.) held that a statement made by a witness at the
preliminary enquiry leading up to the trial in the Sessions
Court is to be regarded as having been "in relation to" the
subsequent proceedings in the Sessions Court. Consequently,
the Sessions Judge has jurisdiction to direct prosecution of
the person making that false statement even if he finds that
the statement made before the Committal Court of the
Magistrate, was false.
The rationale behind these decisions is that if the two
proceedings, one in which the offence is committed and the
other, the final proceedings, in the same or a transferee
court are, in substance, different stages of the same
integrated judicial process, the offence can be said to have
been committed "in relation to" the proceedings before the
Court to whom the case was subsequently transferred or which
finally tried the case. By the same token, the offences
under Sections 205 and 471, Penal Code, in the present case
can be viewed as having been committed "in relation to" the
proceedings before the Court of Shri Karandikar to whom the
case was transferred for disposal. Thus considered, Shri
Karandikar was competent to make a complaint in respect of
the aforesaid offences, after conducting a preliminary
inquiry under Section 476, Cr. P.C.
705
Before concluding, we think it necessary to notice and
distinguish the decision of this Court in Nirmaljit Singh
Hoon v. The State of West Bengal & Ors. In that case, the
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complaint was filed before the Chief Presidency Magistrate
in respect of a cognizable offence of criminal breach of
trust and cheating. The Magistrate without taking cognizance
of the case, sent that complaint under Section 156(3) of the
Code to the police for investigation. During that
investigation or inquiry by the police, the alleged forged
receipt was produced by the accused. It was held that it
could not be argued that this forged document was produced
in a proceeding before the Court of Chief Presidency
Magistrate, although the forged document formed part of the
record of the case which part of the record of the case
which went to the Chief Presidency Magistrate together with
the report of the police. The reason for so holding was that
investigation ordered by a Magistrate under Section 156(3)
is an investigation made by a police officer in his
statutory right under sub-sections (1) and (2). Moreover,
the Magistrate sending such a complaint for investigation
under Section 156(3) cannot be said to have taken cognizance
of the offence, and no proceeding could be said to have been
commenced before him, of which the inquiry by the police
could be said to be part and parcel. Further, it cannot be
said that the police officer acting under Section 156(3) was
a delegate of Chief Presidency Magistrate or that the
investigation by him was an investigation by or on behalf of
the Magistrate. On these premises, the Court held that the
production of the forged receipt in the course of such an
investigation was not production in a proceeding before the
Chief Presidency Magistrate, so as to attract the ban under
Section 195(1)(c).
In the instant case, it cannot be disputed that the
bail proceedings before Shri Deshpande were judicial
proceedings before a court, although such proceedings took
place at a stage when the offence against the accused, who
was bailed out, was under police investigation. Thus, the
facts in Nirmaljit Singh’s case were materially different.
The ratio of that decision, therefore, has no application to
the case before us.
For all the foregoing reasons, we are unable to agree
with the High Court that the bail proceedings before Shri
Deshpande were "distinct and different" from those which
were initiated on police challan in the Court of Shri
Karandikar and, therefore, the latter was not competent to
hold a preliminary inquiry under Section 476,
706
Cr. P.C. and/or to make a complaint for prosecution of the
respondents, herein, in respect of the offences under
Sections 205, 419, 465, 467 and 471, Penal Code. We,
therefore, allow this appeal set aside the impugned judgment
and send the case back to the High Court with the direction
that it should restore the appeals of Sk. Bannu and Shankar
to their original numbers and after hearing the parties,
decide the same afresh on merits, according to law.
P.B.R. Appeals allowed.
707