KAMLAPATI TRIVEDI versus STATE OF WEST BENGAL

Citation: [1979] 2 S.C.R. 717 · Decided: 13-12-1978 · Supreme Court of India · Bench: JASWANT SINGH

Cited by 3 judgment(s) · cites 7 · see the full citation network in Lexace

Judgment (excerpt)

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KAMLAPATI TRIVEDI 
v. 
STATE OF WEST BENGAL 
December 13, 1978 
[JASWANT SINGH, P. s. KAILASAM AND A. D. KosHAL, JJ.] 
717 
Code of Crindnal Procedure 1898-S. 195(1) (b )-Scope of-'In relation 
to any proceedings in any court' meaning of-Police submitting final 
report 
under s. 173 Cr. P.C. and Magistrate passing 
an 
order 
thereon-Whether 
judicial order-Attracting the bar in s. 195 ( 1) (b). 
Section 195(1)(b) of the Code of Criminal Procedure provides that no 
court shail take cognizance of any offence punishable 
under 
any 
of 
the 
sections enumerated therein (one of which is s. 2'11) if such offence is alleged 
to have been committed in or in relation to any proceedings in any court. 
The appellant filed a complaint with the police that the accused criminally 
trespassed, assaulted and abused him in filthy language and committed 
theft 
of money and valuable documents of the school of which he was the secre~ 
tary. After investigation the police found that there was no evidence against 
the accused and therefore, the Mlagistrate discharged all the accused. 
One of the accused thereupon preferred a complaint under s. 211 
IPC 
.alleging that the appellant had instituted criminal proceedings with the intent 
to cause iujury to him and others knowing that there was no just or lawful 
ground and thereby caused pecuniary loss Gnd agony to him. 
The appellant moved the High Court• for quashing the proceedings before 
the Magistrate because in the absence of a complaint in 
writing 
of 
the 
Magistrate himself, the Magistrate had no jurisdiction to take cognizance ot 
the offence under s. 211 !PC in view of the provisions of s. 195 (I) (b) of 
the Cr. P.C. The High Court refused to quash the proceedings. 
A 
B 
c 
D 
E 
On further appeal it was contended that an order passed by a Magistrate 
F 
on a report submitted by the police under s. 173 Cr. P. C. being a judicial 
order the bar of s. 195(1)(b) would be attracted. 
Allowing the appeal, 
HELD : Per 
Koshal, 
J. 
(with 
whom 
las"lant 
Singh, 
J. 
agreed) 
1. The con1plaint against the appellant was in respect of an offence alleged to 
G 
have been committed in relation to a proceeding in court. In taking cogni-
zance of it the Magistrate acted in contravention of the 
bllr contained 
in 
s. 195 (1) (b) because there was no complaint 
in 
writing 
either 
of 
the 
Magistrate or of a superior court. (756 D] 
2. Taking cognizance of any offence by a Magistrate under s. 190 is not 
a condition precedent for him to be regarded '05 a 
court. 
Magistrates 
are 
specifically labelled as courts by s. 6 of the Code of Criminal Procedure and, 
therefore, have to be regarded as such. It is true that a 
Magistrate also 
performs functions which are of an executive nature and do not fall within 
H 
A 
B 
c 
D 
E 
F 
G 
H 
718 
SUPREME COURT REPORTS 
[1979] 2 s.c.R. 
the StJhere of judicial duties and it may plausibly be argued that in the 
dis-
charge of those functions he does not act as a court. 
But then he cannot 
but be regarded rui a court when he act!! judicially. 
Sections 4.:96 and 497 
which make provision for bail matters describe a Magistrate while dealing with 
those matters as a court and these sections operate at all stages of a case including 
that when the investigation has just started. 
Neither in these sections nor 
in s. 195 is there anything to show that the word "court" has been used in 
two different senses and therefore the legislature must be deemed to 
have 
used it in one sens'e wherever it occurs in the Code. [743 B, 742 D-tfI 
3. The well accepted position is that a court created by 
~ statute, when 
it performs judicial functions, would be deemed to act 
Us 
a 
court; 
and 
Magistrates' courts are regarded as such unless they are performing executive 
or administrative functions. [744 F-G]. 
Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation, [19311 
AC 275 PC and Halsbury's Laws of England (3rd Edn.) Vol. 9 
p. 
342; 
Virinder Kumar Satyawadi v. The State of Puniab, [1955] 2 SCR 1013; Smt. 
Ujiam Bai v. State of U .P., [1963] 1 SCR 778; referred to. 
4. Tue source of power exercised by the authority, i.e. 
whether 
it 
is 
executive or judicial power, would make all the difference in the determina~ 
tion of the question whether the authority acts as a court or merely as a 
quasi judicial tribunal. [746 FJ. 
S. Section 4(2) of the Code of Criminal Procedure provides 
that 
''all 
words and expressions used herein a

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