DESAI, J. - (1.) THE applicant's application for the quashing under Sections 215 and 561, Criminal Procedure Code of an order committing him to the Court of Session to stand trial for the offence of Section 211, I.P.C. has been referred by our brother, Katju, to a larger Bench. The commitment is sought to be quashed on the sole ground that a Magistrate took cognisance of the offence against the applicant on a complaint by a private person and not by a Court. On 26.6.1960 the applicant made a report at a police station against the complainant Gyari and his relations accusing them of committing on June 25 or 26, 1960 the offence of Section 307, I. P. C. From 14th June, 1960 to 27th June, 1960, the complainant and his relations had all been in the District Jail, Lucknow, in connection with an offence committed under the Railways Act and were released on 27.6.1960. Thus the report made against them was false. The police investigated into the report and arrested the complainant and his relations. Since the police could not complete the investigation within 24 hours, they were produced before a magistrate, who remanded them to custody on 2.7.1960. Their application for bail was refused by him. They made another application for bail pointing out that on the date on which they were alleged to have committed the offence they were undergoing imprisonment in a jail at Lucknow. On this an enquiry was made by the Magistrate from the police and the police submitted a report under Section 173, Criminal Procedure Code to the effect that on investigation the report made by the applicant had been found to be false, that no offence had been committed by the complainant etc. and that they be released from custody. This report was placed before the Magistrate on 27.7.1960 and he discharged the complainant and others on 28.7.1960.
(2.) IT is not in dispute that the allegations made in the complaint against the applicant made out an offence under Section 211, I.P.C. According to the complaint the report made by the applicant against the complainant and others contained a false charge. Section 195 (1) (b), Criminal Procedure Code is to the effect that no Court shall take cognisance of any offence punishable under Section 211, I.P.C. "when such an 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." It was contended on behalf of the applicant that the offence alleged to have been committed by him was alleged to have been committed in relation to certain proceedings in the Court of a Magistrate. It was not his contention that it was alleged to have been committed in any proceedings in any Court. The question before us is whether the offence was alleged to have been committed in relation to any proceeding in any Court.
(3.) THE Magistrate had to deal with matters arising out of the report lodged by the applicant on three occasions, (1) when he remanded the complainant and others on the ground that the investigation could not be complete within twenty four hours, (2) when he entertained the bail applications of the complainant and others and passed orders on them, and (3) when he received the investigating officer's report submitted to him under Section 173 of the Code of Criminal Procedure and accepted it. We are 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 apparently is used in a wider sense than "judicial proceeding". It was contended that a proceeding within the meaning of the provision starts with Chapter XVII which bears the heading "Of the commencement of proceedings before Magistrate". It was argued that there can be no proceeding before a Magistrate unless cognisance of an offence has been taken by a Magistrate under Section 190 and that prior to cognisance being taken there can be no proceeding. Section 190 and other sections appear under the heading "Conditions requisite for initiation of proceedings." Refusing to take cognisance of an offence has been held in a number of cases to be an administrative act and not a judicial act, such as Emperor v. Hayat Fateh Din, AIR 1948 Lah 184. When a report under Section 173 is placed before a Magistrate it is placed before him only for the purpose of his deciding whether to take cognisance of the offence or not; he is not required to pass any orders on it such as accepting it or rejecting it. Under Section 190 he can take cognisance of an offence on a police report and it is only to enable him to take cognisance of an offence that under Section 173 a report containing the result of every investigation is required to be placed before him. It is in his discretion whether to take cognisance of an offence on the basis of the report or not. If he takes cognisance of an offence it may be that certain proceeding will come into existence but it does not follow that proceeding that comes into existence after cognisance of an offence has been taken is the only proceeding contemplated by Section 195 (1) (b). The Court itself deals with several proceedings other than a proceeding in a trial. One of them is a remand proceeding. Under Section 167 of the Code an investigating officer is required to transmit to the nearest Magistrate a copy of the entries in the diary and forward the accused to him if he cannot complete the investigation within twenty four hours. The Magistrate is empowered to authorise the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days or to forward the accused to a Magistrate having jurisdiction. If he remands the accused to the custody of the Police or if he is a Magistrate other than the District Magistrate or a, Sub -Divisional Magistrate he is required to give reasons for the order of remand and send a copy of his order to the Magistrate to whom he is immediately subordinate. This provision makes it clear that a proceeding held by a Magistrate on receipt of an investigating officer's report made under Section 167 (1) is a proceeding contemplated by the Code. When a person accused of any non -bailable offence is arrested without a warrant or is brought before a Magistrate he may be released on bail, vide Section 497. When he applies to the Magistrate for bail the Magistrate has to consider various matters and then decide whether he should release him on bail or not. When an accused applies for bail a proceeding does come into existence terminating in the order granting or refusing bail, therefore, even though it may be true that no proceeding comes into existence when a Magistrate considers a report submitted to him by an investigating officer under Section 173 it comes into existence when he passes a remand order or passes orders on an application for bail. Section 195 (1) (b) does not require that the proceeding must be one from which it can be found out whether an offence was committed or not or that it must be such as to give material to the Court for deciding whether to make a complaint or not. It is not essential that the proceeding must be one for an inquiry into the very act which is alleged to be an offence. It is because the Court may not be in possession of all the facts on the basis of which it can decide whether to make a complaint or not that there is a provision in Section 476 of the Code for an application being made to it and for its making an enquiry into the offence alleged to have been committed in relation to the proceeding held by it. If the Court has not obtained possession of the necessary facts in the proceeding itself it is open to the applicant to bring those facts to its notice and invite it to make a complaint. Therefore, it cannot be said that neither the remand proceeding nor the proceeding started on a bail application was a proceeding within the meaning of Section 195 (1) (b) because in neither proceeding could the Magistrate come into possession of facts on the basis of which he could make any complaint against the applicant. The complainant could have made an application under Section 476 to the Magistrate praying for an enquiry into the offence alleged to have been committed by the applicant and for making a complaint against him if he was satisfied that it was expedient in the interests of justice to make a complaint against him.;