DAVE, J. - (1.) THIS reference comes on the report of the learned Additional Sessions Judge, Ganganagar, dated the 28th of March, 1951.
(2.) THE facts giving rise to it are that on the 11th March, 1960, one Bachan Singh lodged a report at Sadar Police Station, Ganganagar, against one Mastan Singh, in which it was alleged that Mastan Singh had committed offences under sec. 447 and 323 I. P. C. On investigation, it was found by the police that the charges levelled against Mastan Singh were false. Accordingly, a final report under sec. 173 Cr. P. C. was filed and it was accepted by the Sub-Divisional Magistrate, Ganganagar, on 4th July, 1960. On 6th August, 1960, the Station House Officer, Sadar, Ganganagar, filed a complaint in the court of the Sub-Divisional Magistrate, Ganganagar, against Bachan Singh under sec. 211 I. P. C. On 8th September, 1960, counsel for the accused raised an objection that the offence alleged to have been committed by his client was in relation to proceeding in the Magistrate's court and therefore the complaint could be filed only by the Magistrate on account of the provisions of sec. 195, sub-sec. (1) (b) Cr. P. C. and the court had no jurisdiction to take cognizance of the offence on a complaint by the police. This objection was turned down by the court on 28th January, 1961. Aggrieved by that order, Bachan Singh filed a revision application. THE learned Additional Sessions Judge, Ganganagar, who heard that application, was of opinion that the final report having been accepted by the Sub-Divisional Magistrate, the trial court could not take cognizance of the offence on a complaint by the police and therefore he has recommended that the accused should be discharged. Learned counsel for the accused Bachan Singh supports the reference. Learned Assistant Government Advocate, on the other hand, contends that the view taken by the Additional Sessions Judge, Gangangar, is not correct. Learned counsel for accused Bachan Singh relies on J. D. Boywalla Vs. Sorab Rustomji Engineer (1 ). In that case, the police had started investigation on receipt of a complaint and a person was arrested and released on bail. After investigation, the police made a report to the Magistrate that no offence was disclosed against the person who was arrested and that he should be discharged and his bail bond be cancelled. On this report, the Magistrate discharged the accused. Thereafter, the accused, who was discharged, filed a complaint under sec. 211 I. P. C. It was held that the order of discharge passed by the Magistrate was a judicial order and therefore the complaint under sec. 211 I. P. C. should also have been made by him. It is clear from the facts, noted above, that although an order of discharge on a final report by the police under sec. 173 Cr. P. C. was not strictly necessary the Magistrate had passed an order of discharge, but in the present case the Sub-Divisional Magistrate had only accepted the final report under sec. 173 Cr. P. C. and no judicial order was passed by him. Learned counsel has next referred to Bajaji (Bayaji) Appaji Kote Vs. Emperor (2 ). In that case, one Bayaji Appaji had given information to the police that one Amolak Khushal was in possession of wheat stolen from his house. This allegation was investigated by the police and found to be false. On a report made by the police under sec. 173 Cr. P. C, the Sub-Divisional Magistrate granted a 'b' summary and the police then sent a charge-sheet against Bayaji Appaji under sec. 211 I. P. C. It appears that Bayaji Appaji had also filed a regular complaint on the same facts before the Resident Magistrate, Belapur Road, and that complaint had also ended in the discharge of the accused. It would thus appear that in the said case (1) also there was a complaint before a Magistrate and it was decided by a court. This case (2) is also distinguishable from the present one inasmuch as there was no complaint before a Magistrate. Learned counsel had next referred to State Vs. Vipra Khimji Gangaram (3 ). In that case, it was held following the views of the Bombay High Court in the case (2) referred above, that where a Magistrate passes an order on a final report filed by the police under sec. 173 Cr. P. C. in 'b' summary issued by him, it is not merely an administrative order but a judicial order and therefore if a complaint under sec. 221 I. P. C. is filed, the offence alleged to have been committed would be in relation to the proceedings in the Magistrate's court and in the absence of a complaint by the Magistrate, the proceedings launched against the accused would be without jurisdiction. In both the cases of the Bombay High Court, referred above and also in the case of the Saurashtra High Court mentioned above it was held that the order of a Magistrate passed on a final report by the police under sec. 173 Cr. P. C. is a judicial order and not merely an administrative order and therefore if a complaint under sec. 211 I. P. C. is filed thereafter, such a complaint can be made only by the court which accepted the final report. It may be observed that the decision of the present case turns upon the interpretation of sec. 195 (1) (b) Cr. P. C. which runs as follows: - "195 (1) No Court shall take cognizance: - (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) of any offence punishable under any of the following sections of the same (Indian Penal) Code, namely, secs. 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, and 228, when such 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 or of some other Court to which such Court is subordinate;" The question for determination is whether in a case in which a final report under sec. 173 Cr. P. C. is submitted by the police on the ground that the complaint has been found to be false on investigation it may be said that the complaint for the offence under sec. 211 I. P. C. is in relation to a proceeding in the court. The perusal of the decisions of the Bombay and Saurashtra High Courts mentioned above shows that their view proceeds on the ground that the order which is passed by the Magistrate on final report made by the police u/sec. 173 Cr. P. C. is not an administrative order but a judicial order and therefore the offence alleged to have been committed under sec. 211 I. P. C. is in relation to the proceeding in the court. It may be pointed out that a different view was taken by the learned Judges of the same High Court in Emperor Vs. Chandabhai Amar-Ang (4 ). In that case, a Magistrate had given to the police 'b' summary in regard to the accusation made by a complainant. The complainant was thereupon prosecuted under sec. 211 I. P. C. for giving a false report and he was eventually convicted. It was urged before the learned Judges of the High Court that the order of the Magistrate who had given 'b' summary was a judicial order. It was held by the learned Judge that a B summary was not an order passed under the Code at all, but was a mere administrative order made by the Magistrate for the purpose of facilitating police work and police statistics. It was further held that the offence under sec. 211 I. P. C, was not committed in or in relation to any proceeding in any court. This case (4) does not appear to have been noticed in J. D. Boywalla's case (1 ). It was noticed in Bajaji Appaji Rote's case (2) but not followed with the following observation: "having regard to the object of amending S. 195, Criminal P. C. requiring a complaint from a court, instead of its mere sanction for the prosecution of any offence committed in relation to that court, we think that the Magistrate passing an order on a final report of the police sent after the investigation under S. 173, Criminal P. C. should be deemed to be a court passing a judicial order disposing of the information given to the police "of the information given to the police". With great respect, it may be observed that when the Magistrate receiving a final report on the ground that no offence is made out simply files or accepts it or grants a B summary and does not consider it necessary to take cognizance of the offence, it is difficult to understand how it may be urged with justification that there is a proceeding before the court or that it passes a judicial order. There is nothing in the language of sec. 211 I. P. C. to show that a complaint for an offence under that section should be filed only by a court. In other words, any person who is aggrieved can file a complaint for an offence under that section. It is only sec. 195 Cr. P. C. which imposes a restriction to the effect that when an offence under sec. 211 IPC is alleged to have been committed in or in relation to any proceeding in any court, another court should not take cognizance of that offence except on a written complaint of the former court or of some other court to which it is subordinate. It is obvious that this section abridges the right of an aggrieved person to get a redress from a court and therefore the section should not be so interpreted as to make it unreasonably stringent. If the police files a final report before a Magistrate on the ground that no offence is disclosed on investigation and that the first information report was false and unfounded, then there is no proceeding before the said Magistrate. The Criminal Procedure Code does not lay down that the Magistrate should pass an order for discharging the accused of the offence alleged against him, if he does not want to take any action on that report. Therefore, if he passes an order that the report be filed or accepted, it is not a judicial but an administrative order. There being no proceeding before a Magistrate by that time, it cannot be held with any justification that the offence under sec. 211 I. P. C. has been committed in, or in relation to any proceeding before a court and therefore the complaint must be made by it. It may be pointed out that the view taken by the Bombay and Saurashtra High Courts, referred above, has not been followed by other High Courts. In Uma Singh Vs. Emperor (5) it was held by the learned Judge of a Division bench of the Patna High Court that "the Magistrate's order directing a case reported to him by the police under sec. 173 to be struck off is not a judicial order. Such orders are purely administrative or ministerial and principle of autrefois acquit cannot possibly apply to them. In Rangaswami Goundan Vs. Emperor (6) a complaint was made by the police charging certain persons in connection with murder. The Police investigated the matter and certified the complaint to be false. The police report was accepted by the Sub-Magis-trate. Thereafter, the police preferred a complaint for an offence under sec. 211 I. P. C. It was contended for the accused that the police was not entitled to do so and that it was the matter for the Magistrate under sec. 195 Cr. P. C. It was held that it was not a case which the Magistrate had taken any judicial notice of, nor were the proceedings judicial proceedings at all. The same view has been taken by that Court in The Registrar, High Court Vs. Kodangi (7) and Public Prosecutor, Madras Vs. Salma Beevi (8 ). The Nagpur High Court has also taken the same view in Emperor Vs. Birdichand Chunnilal (9), In Mt. Raji w/o Khuda Baksh Vs. Allaudin M. Samo, Mukhtiarkar (10), it was observed that if it had been the intention (of the Legislature) that an offence under sec. 211 I. P. C. could be made the subject of complaint only by courts or public officers, appropriate words could have been found without difficulty by the official draftsmen. But, when we look at S. 195 (b), Cr. P. C. we see that there is no reference to offences u/s. 211 I. P. C. generally; but, there is a reference only to sec. 211 I. P. C. in particular circumstances, to offences u/s. 211 I. P. C, committed in or in relation to any Court, and when an offence under sec. 211 I. P. C, is not committed in or in relation to any Court a complaint of such an offence can be made by a private individual". It was also held that "the mere fact that a Magistrate gives a 'b' summary does not bring the offence in relation to which that summary is given within the provisions of sec. I95 (l) (b), for the giving of a 'b' summary is merely an administrative and not a judicial act". A Full Bench of the Lahore High Court in Emperor Vs. Hayat Din (11) also held that when a report is made to the police charging another person with the commission of an offence and the police after investigation finds that the report is false and has the case cancelled by the Magistrate under sec. 173 the charge made by the complainant in the report not being the subject matter of any judicial proceedings in Court, action by the Magistrate under sec. 173 being only administrative and not judicial and consequently sec. 195 (1) (b) not applying to the case, it is open to the police to prosecute the maker of the report under sec. 211, Penal Code, for making a false charge. A learned Judge of this Court has also followed the same view in Pukhraj Vs. Sesmal (12) and I see no good ground to take a different view. Under these circumstances, there is no force in this reference and it is rejected. . ;