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AIR 1979 SC 777

Case Name Kamlapati Trivedi v/s State  Of West Bengal
Citation AIR 1979 SC 777
Date  Of Judgment December 13, 1978
Court Supreme Court
Case no. Criminal Appeal No. 45 of  1972
Case Type Criminal Case
Appellant Kamlapati Trivedi
Respondent State Of West Bengal
BenchJustice Jaswant Singh,  Justice P.S Kailasam,  Justice A.D. Koshal


Believing that the appellant had filed  criminal proceedings Bhartiya Primary  School in Howrah’s secretary is Satya  Narayan Pathak. Kamlapati Trivedi, the  appellant before us, worked as the head  teacher at the Bhartiya Primary School.  Satya Narayan Pathak sent the appellant  with a Notice on April 18, 1970, requesting  that he provide justification for not being  found responsible for dereliction of duty.  The appellant sought to remove some  records from the school after receiving the  Notice, but was unsuccessful. The Police  registered an offence under Sections 147,  448, and 379 I.P.C. after treating the  appellant’s complaint as a First Information  Report. In relation to Satya Narayan Pathak  and others, an arrest warrant has been  issued. On the days set for submitting the  police report, 21-5-1970 and 21-7-1970, 

Satya Narayan Pathak appeared in court on  both occasions. Satya Narayan Pathak and  the other identified defendants were cleared  

of all charges after the police officer who  conducted the investigation concluded that  there was no evidence to support their  claims. The magistrate concurred with the  findings and released all the defendants. Satya Narayan Pathak filed a complaint  against the appellant for offences under  Sections 211 and 182 of the I.P.C. on  October 20, 1970, for violations of Sections  147, 448, and 379 with the intent to harm  him and others, knowing that there was no  just or legal ground for doing so, and had  already caused him financial loss and  suffering. Under Section 211 of the Indian  Penal Code, the learned Magistrate  summoned the appellant after taking  cognizance of the case. setting the  appellant’s appearance for December 10th,  1970. The appellant appeared in court on  November 16th, 1970, and was granted 

bail. The appellant requested that the High  Court of Calcutta annul the Magistrate’s  procedure on the grounds that the  Magistrate’s cognizance was improper and  without jurisdiction due to a violation of  Section 195(1)(b) of the Criminal Procedure  Code. By decision dated August 18, 1971,  the learned Judge declined to halt the  proceedings and release the defendants.  The current appeal to this Court has been  lodged in defiance of the Single Judge of  the High Court’s decision. 


Whether on the facts of the case the bar  against taking cognizance in Section  195(1)(b) is attracted.


The appellant claimed before the Honorable court that pursuant to the provisions, no  court may take cognizance under Section  211, but rather, such cognizance may be  taken in such kinds of offences upon the  filing of a written complaint by a magistrate  or by a public employee. There is currently  no formal complaint from a judicial or public  official. As a result, SDJM is in violation of  section 195’s restrictions. The appellant  also stated that SDJM is recognised as a  court since a court is established by statute  and is to be regarded as a court while it  exercises its judicial powers; as such,  SDJM is likewise regarded as a court  unless doing administrative or executive  functions.


The accusation made against the appellant  related to a crime allegedly committed in  connection with a legal action. Since neither  the Magistrate nor a superior court had filed  a written complaint, the Magistrate violated  the bar in section 195(1)(b) by taking  cognizance of the case. It is not a  requirement for a magistrate to be regarded  as a court that he or she take cognizance of  any offence under section 190. Magistrates  must be recognised as courts because they  are officially identified as such in Section 6  of the Code of Criminal Procedure. It is true  that a magistrate also conducts executive level tasks that are outside the purview of  judicial responsibilities, and it is conceivable  to claim that in carrying out those tasks, he  does not act in the capacity of a court. But  when he operates in a judicial manner, he

cannot help but be viewed as a court.  Sections 496 and 497, which deal with bail  issues, refer to a magistrate who deals with  those issues as a court. These provisions  are applicable at all stages of a case, even  when the inquiry has just begun. There is nothing to suggest that the word “court” has  been used in two separate contexts in  either of these sections or in s. 195, so the  legislature must be assumed to have only  used it in one connotation throughout the  Code. The widely recognised view is that a  court established by statute would be  assumed to behave as a court when it  conducts judicial functions, and  

magistrates’ courts are viewed as such  unless they are carrying out executive or  administrative functions. In determining  whether the authority works as a court or  merely as a quasi-judicial tribunal, the  authority’s source of power, namely 

whether it is executive or judicial power,  would be crucial. ”All words and  

expressions used herein and defined in the  IPC and not hereinabove defined shall be  deemed to have the meanings respectively  attributed to them by the Code,” the Code  of Criminal Procedure states in Section  4(2). The Indian Penal Code, which  contains the substantive law, and the  Criminal Procedure Code, which deals with  procedure, may be viewed as  

complementary to one another in the  subject of administering criminal  

justice. The Indian Penal Code’s Sections  19 and 20 utilize the terms “Judge” and  “Court of justice” respectively, which give  an idea of what a court is like in terms of  criminal law generally. Despite the fact that  the term “court of justice” has not been  used in the Cr. P.C., the word “Judge” is  used in s. 197, and when a judge—

including a magistrate—who is authorised  to act judicially does so, they constitute a  Court of Justice rather than just a court.  The question of whether a specific provision  in Chapter XIV is restricted to the  Magistrate’s supervisory jurisdiction in  respect to the investigation being  conducted by the police or interacts with his  judicial powers as a court is not resolved by  the chapter’s caption. Although Chapter XIV  is titled “Information to the police and their  powers to investigate,” it deals with  problems that may arise after the  investigation has been completed and is not  limited to issues that are exclusively related  to the investigation stage. It is not required  for the parties to have a right to be heard  and present evidence at every step of the  proceedings before a tribunal for it to be  acting in the capacity of a court. The  presiding officer of a court does perform 

court-like functions, such as delivering  interlocutory orders and granting temporary  injunctions. All orders made by a magistrate  acting in a judicial capacity (such as orders  of bail, orders made pursuant to subsection  (3) of Section 173 of the Code discharging  the accused, or orders made taking  cognizance of an offence complained of)  are components of a whole that may result  in a final judgement following an  

investigation, a trial, or earlier, depending  on the circumstances present at the time,  and which involves, as necessary, the  introduction of evidence. They cannot be  seen in isolation or assigned a personality  distinct from the whole judicial system of  which they are a part. 

JUSTICE KAILASAM (Dissenting) The principle guiding the prohibition against  the institution of criminal proceedings by a  private party is that the appropriate 

authority should always be given  

preference when filing a complaint when  crimes are committed against legitimate  authority, when false evidence is presented,  or when crimes are committed against  public justice. A court’s responsibility is to  render a final judgement that declares all  parties’ rights and resolves disputes in a  just manner. A court decision requires that  the parties have a right to be heard in support of their claims and to present  evidence to support those claims.  Additionally, it places a duty on the  authority to decide the case after carefully  weighing the available evidence and the  law.It is established law that when a  Magistrate applies his mind to complaints,  he must be considered to have taken  cognizance of the offence mentioned in the  complaint; however, when he does so to  order an investigation under section 156(3) 

of the Criminal Procedure Code or to issue  a search warrant for the purpose of an  investigation, he cannot be considered to  have taken cognizance of any offence. It is  unclear if the Magistrate is functioning as a  court when he accepts a report under  Section 169 of the Criminal Procedure  Code that there is insufficient evidence or a  reasonable basis for suspicion. However,  he may be acting in the course of his  judicial duties. At this point, the majority of  the requirements for a court are absent. An  authority must be mandated with the duty to  resolve conflicts in a judicial way and  declare the rights of parties in a final  judgement in order to qualify as a court. This entails that the parties have a legal  right to be heard in favour of their claim and  to present evidence to support it, and that  the authority has a duty to determine the  case after taking all relevant evidence into 

account and in line with the law.  

Investigation is taking place as part of the s.  167 Cr. P.C. procedure. The magistrate to  whom the accused is brought may  occasionally permit the detention of the  accused for a total of no more than 15 days  in the custody that magistrate deems  appropriate. If he believes that additional  detention is required but lacks the authority  to try the case or commit it for trial, he may  order that the accused be sent to a  magistrate who does. The Magistrate is  involved in police investigations in a  supervisory capacity. Due to the  

Magistrate’s restricted authority and lack of  jurisdiction to hear the matter, their actions  cannot be construed as those of a court.  After the offence has been recognised, the  trial can only begin.When bail may be  granted for offences that are not subject to  bail is outlined in Section 496.According to 

sections 496 and 497 of the law, a person  who is being held on suspicion of a crime  for which there is no possibility of a bond  must appear in court at any point during the  legal process. The provision addresses the  use of a court’s authority whenever an  accused person is presented before a court  while still in the custody of a police officer.  The criteria for constituting a court for the  purposes of statute 195(2) have not been  met, even though there may be certain  court-like trappings and the statute itself  uses the word “court.” 



written by Jahanvi Sahu intern under legal vidhiya


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