T.P.MUKHERJEE,J. - (1.) THIS Rule is directed against an order of the Sessions Judge at Howrah whereby he set aside the order of an assistant sessions judge of the district directing a complaint to be made against the present opposite party to a magistrate, first class, foe an offence under Section 211 of the Indian Penal Code. On a first information alleging an offence of dacoity resulting in a charge -sheet, the five petitioners were put on trial on a charge under Section 395 of the Indian Penal Code. The trial ended in an acquittal with a finding that the allegations made in the complaint were false, frivolous and malicious. The present petitioners thereupon applied to the learned assistant sessions judge concerned for an enquiry under Section 476 of the Code of Criminal Procedure with the object of making a complaint against the present opposite party for an offence under Section 211 of the Indian Penal Code. The learned assistant sessions judge allowed the prayer and directed that a complaint be filed as prayed for. Against this order of the learned assistant sessions judge, an appeal was taken to the sessions judge of the district and he found that the necessary findings required to be arrived at before a complaint can be directed to be made under Section 476 of the Code of Criminal Procedure were wanting in the findings of the trial court and on this finding he allowed the appeal and directed that the complaint already made by the assistant sessions Judge be withdrawn. It. is against this order that the petitioners moved this Court and obtained the present Rule.
(2.) MR . Bay appearing in support of the rule contends that the fact that in the complaint it was not stated that it was expedient in the interest of justice that the opposite party should be prosecuted, is not a factor which would take away the legality of the complaint Certain other arguments in this regard were also advanced. In my view the entire approach of the learned Sessions Judge to the matter before him was erroneous. The question that really arises in the matter is whether any complaint of the Court concerned is really required in the case. Section 476 of the Criminal P.C. is attracted to offences referred to in Section 195(1)(b) or (c) when the offences mentioned therein appear to have been committed in or in relation to a proceeding in Court before which the enquiry is prayed for, If as a result of the enquiry the Court concerned comes to the finding that it is expedient in the interest of justice that a complaint should be made it is then and then only that Section 195(1) comes into operation. That Section 195(1) provides a bar to the taking of cognizance of an offence in the case of certain offences committed under certain specific circumstances. Clause (b) of Sub -section (1) to Section 195 provides such a bar in the case of offences including one under Section 211 of the Penal Code when such offences are alleged to have been committed in or in relation to any proceeding in Court. Cognizance of these offences mentioned in this clause can only be taken on the complaint in writing of the Court in which the offenses are committed or of some other Court to which such Court is subordinate. The position thus comes to this that in the case of an offence under Section 211 of the Penal Code, in order to attract the bar of Section 195(1)(b) or (C) necessiting thereby an enquiry under Section 476 of the Criminal P.C., such offences must be alleged to have been committed in or in relation to any proceeding in Court to which the prayer for enquiry is made. If the offence is not committed in or in relation to any proceeding in any Court, the bar of Section 195(1)(b) is not attracted and necessarily an enquiry under Section 176 of the Code is not called for. The question pertinent in this case thus boils down to this as to whether the alleged offence under Section 211 of the Penal Code was committed in or in relation to any proceeding in Court.
(3.) THE alleged offence, according to the present petitioners, was committed as a result of a false charge laid at the police -station in the first information report which culminated in a charge -sheet under Section 395 of the Penal Code against them. Obviously, there was no proceeding pending in any Court at that time. The question as to whether there is a proceeding pending in any Court while a matter is pending investigation by the police came up for decision by the Supreme Court in the case : M.L. Sethi v. R.P. Kapur AIR 1937 S C 528. It was held in that case that in the case of a matter pending police investigation, there is no proceeding pending in Court till the filing of the final report of the charge sheet in the case and it was further held that if there was no proceeding in any Court at all in which or in relation to which the offence under Section 211 of the Penal Cole could be alleged to have been committed, Section 195(1)(b) of the Criminal P.C. would not be attracted at all.;