S. Malik, J. - (1.) THIS is a revision application by Ram Narain against the judgment and order dated 17-1-1974 passed by the learned Sessions Judge, Varanasi.
(2.) BRIEFLY stated, the facts, giving rise to this revision application, are that on 21-7-1973 Bechan Prasad opposite party no. 2 gave an application to the Sub-Divisional Magistrate, Varanasi (south), for proceeding (presumably under Section 107 CrPC) against the revisionist and nineteen others. It was alleged that plot no. 174 (11 decimal) situate In Mauja Naraur, P. S. Rohania District Varanasi, was purchased by him in the names of his sons on 4-12-1970. A suit under Section 229-B of the UP ZA and LR Act was filed against Kunj Behari and others but it was dismissed on 16-9-1972. An appeal filed against it was allowed on 12-6-1973. On 20-7- 1973 Ram Narain and others demolished the boundaries of plot no. 174 and included this land in their own plot and were giving out that if any one came there he would be killed. Hence there was a reasonable apprehension of breach of the peace from the side of Ram Narain and others, and they should be bound down. On this application the learned Sub- Divisional Magistrate concerned ordered an inquiry by the Station Officer of police station Rohania. In pursuance of this order S. I. Asha Ram Tripathi submitted a report on 2-8-1973 to the effect that there was no apprehension of breach of the peace on account of plot no. 174 but the dispute really existed between the parties in respect of a house and it had given rise to breach of the peace. He, therefore, recommended that proceedings under Section 145 CrPC be initiated and the property (house) be attached. After perusing this report the learned Magistrate passed a preliminary order under section 145 (1) of the old CrPC on 4-8-1973 and directed attachment of the house. It was attached on 7-8-1973. There was no attachment of the plot. On 16-8-1973 Bechan Prasad filed a complaint under Section 219 and 219/109 IPC against five persons, namely, Asha Ram S. I., Shiv Prasad, Ram Murat, Shiv Narain and Ram Narain revisionist. It was alleged that S. I. Asha Ram Tripathi had made a report in collusion with the remaining four persons corruptly and maliciously knowing that it was wholly false. His report was invited in respect of plot no. 174 yet he falsely represented that the controversy existed over a house. By this corrupt and malicious practice he obtained an order and got the house attached. On 8-9-1973 Ram Narain, the present revisionist, moved an application before the learned Magistrate that no case under Section 219 IPC was made out and the complaint be rejected. The learned Magistrate rejected the application and ordered that summons be issued to the persons complained against. Ram Narain filed a revision application and the learned Sessions Judge, relying on the case of Yunus v. State, 1969 CrLJ 73, came to the conclusion that the proceedings under Section 107 CrPC before an order under Section 112 CrPC is passed, are both judicial and administrative. Accordingly the revision application was dismissed and the present revision application was filed, It came up for hearing before a learned single Judge of this Court and he found that there were two conflicting single Judge decisions; of this Court inasmuch as in Laxmi Narain v. Emperor, AIR 1932 All. 67)) it was held that a Magistrate acting under Sections 107 to 110 of the Code does not act judicially so long as he does not record an order in accordance with Section 112 while in Yunus v. State (supra), it was held that the function of the Magistrate up to the stage of forming opinion under Sec. 107 CrPC is not (only judicial but administrative also. The question being of considerable importance the learned single Judge referred the whole case for decision to a larger Bench. This is how this revision application has come up before us for disposal.
(3.) WE have heard learned counsel for both the sides and have given our anxious consideration to the whole matter. The complaint was filed under Section 219 of the Penal Code which reads as follows :- "Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceedings, any report, order, verdict,, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." The gravamen of the charge under this section is that (a) there must be a judicial proceedings and (b) there must be making of a real report or a real pronouncement of an order, verdict or decision. In the instant case Bechan Singh, opposite party no. 2 had moved that application for binding down the revisionist and others presumably under Section 107 CrPC and in order to satisfy himself whether there existed any apprehension of breach of the peace from the side of the persons complained against, the Magistrate had invited a report from the police officer. The crucial point, therefore, for consideration is whether proceedings before an order under Section 112 of the Code is drawn up are administrative or judicial. This question has been exhaustively considered in the aforesaid two cases In our judgment there is no real conflict between the two decisions. This revision application was pending when the new Code came into force and by virtue of Section 484 (2) of the new Code it will have to be disposed off according to the provisions of the Code of 1898. In that Code "judicial proceeding" was defined in Section 4 (m) as under :- "Judicial proceeding" includes any proceedings in the course of which evidence is or may be legally taken on oath." ;