LexM. L. SETHI versus R. P. KAPUR & ANR.
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M. L. SETID A v. R. P. KAPUR & ANR. September 23, 1966 [V. RAMASWAMI, V. BHARGAVA Al\D RAGHUDAR DAYAL, JJ.J B Code of Criminal Procedure (Act 5 of 1898), s. 195(1) (b)-Com- p/aint to Magistrate of offence under s. 211, Indian Penal Code-CognJ. ZIJ/ICe, when barred. The appellant lodged a report with the police charging the resP.Ondent with certain cognizable offences on IOih December 1958. While the police were investigating into the report the respondent filed a complaint 111 the Magistrate's Court, on II th April 1959 alleging that the appellant had committed an offence under s. 211, Indian Penal Code, by falsely charging the respondent with having committed an offence. The Magis- trate took cognizance of the respondent's complaint under s. 190 Criminal Procedure Code. At that stage. there were no proceedings in any court nor any order by any Magisuate for arrest, remand or bail of the respon· dent in connection with the appellant's report to the p<ilice. Later, on 18th July 1959 the police arrested the respondent in connectibn with the appellant's report and filed a charge sheet against him, but the case end- ed in an order of discharge. Thereafter, the appellant applied to the Magistrate's court praying that the court may not take cognizance of the complaint to the court, filed by the respondent against the appellant, on the ground that, cognizance of an offence under '· 211 l.P.C. could not be taken in view of the provisions contained in s. 195(1)(b) Cr.P.C. Tho Magistrate rejected the contention and the order was confirmed by the Sessions Court and the High Court. In appeal to this Court, HELD : The complaint filed by the respondent was competent and the Magistrate was not barred from taking cognizance- of it by the provisions of s. 195(l)(b) Cr.P.C.; and, in taking cognizance of it he only exercised juri<diction rightly vested in him. [542 A-BJ c D E (i) When a Magistrate is taking cognizance under s. 190 Cr.P.C., he F must examine the facts of the complaint before him and determine wh<>- ther bis power of taking cognizance under the section bas or has not been taken away under s. 195(1) Cr.P.C. In the case of an offence under s. 211 l.P.C., s. 195(l)(b). Cr.P.C., provides that no court shall take cognizance of ir when such offence is alleged to have been commit- ted in, or in relation to, any proceeding in any court,. except on the oomplaint in writing of sucb court or of some other court to which !'uch court is subordinate. That is. s. 195(1) (b) Cr.P.C. bars taking cogniz. G ance if all the following circumstances exist, namely, (i) that the offence in respect of which the case r.. brought falls under s. 211 I.P.C. (ii) that there should be a proceeding in a court, and (iii) that the allegation should be that the offence under s. 211 l.P.C. was committed in, or in ltlation to such. a proceeding. When examining the question whether there is any proceeding in any court, three situations can be envisaged : (a) There may be no proceeding in any court at all; · (b) a proceeding in a court may actually be pending when H cognizance is taken of the offence under s. 211 I.P.C., and (e) though there may be no proceeding pending in a court, there may haVe been a procuding which had already concluded and the offence under s. 211 ·may A B c D E G H M. L. SETHI V •. R. P. KAPUR 521 be alleged to have ·been committed in, or in ·reJatioli' to, that proceeding. In cases (b) and (c), the bar to taking cognizanee under s. 195(1) (b) Cr.P.C. ·would come into operation. In case (a), when there is no pro- ceeding pending in any court at all at the time when the applicability of _ s. 195(1 )(b), Cr.P.C. has to be determined, nor has there !>een any ear- lier proceeding which may have been concluded,. the sub-section would not apply, and in such a case, the Magistrate W?uld. ~ comp~ten! I? take cognizance of the offence under s. 211 I.P.C., 1f his 1urisd1ct1on 1s 1nvoked in the manner laid down in s. 190 of Criminal Procedure Code. [526 F-G; 527 B, G-H, 528. E-F; 529 C-E, G-Hl Case law considered. (ii) There is nothing in the language of the sub-section to indicate that the Legislature also intended lei lay down this bar if a proceeding in a court was still under contemplation and if and when the proceeding is taken it may be found that the offence alleged to have been committed was, in fact, committed in or in relation to, that
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