H.E.H. The Nizam Rajpramukh Of Hyderabad v. State

Jaganmohan Reddy, J.:— This is a revision against an order the District Magistrate, Hyderabad City, passed on 28-3-1955, directing the Commissioner, City Police, Hyderabad to make an enquiry and submit a report about the alleged commission of offences under Ss. 370 and 346, Penal Code at Raj Bhavan, where certain slaves are said to have been detained against their will. The order under revision was passed on the information laid by one B.G Kesker alleging “not less than 300 adult women, 100 adult men and an unknown number of minor boys and girls are detained as slaves” by Mir Osman Ali Khan in the Raj Bhavan, the official residence of the Rajpramukh H.E.H the Nizam. The major portion of the information contains a tirade not only against the Nizam personally but also against the Government of India, Government of Hyderabad and personalities such as the late Gandhiji, the Prime Minister, and others, which the District Magistrate has properly characterised as irrelevant; but has said that he will order the deletion of these portions after receiving a report from the Police

2. On the filing of this application the following order was passed by the District Magistrate on the same day:

“As information has reached me that several persons are detained in the Raj Bhavan against their will, perhaps as slaves, and as commission of offences under Ss. 346 and 370, I.P.C is suspected, I direct the Commissioner of Police to make an inquiry and submit a report before 15-5-1954. The information is taken on the ale of this Court on Register No. 5.”

3. On receipt of this order the Commissioner, City Police, addressed the District Magistrate a letter No. 570.P/54 dated 3-5-1954 in the following terms:

The complaint is that several persons are detained in the Raj Bhawan and offences under Ss. 370 and 346, I.P.C have been committed or suspected.

Raj Bhawan is the Official residence of the Raj Pramukh of Hyderabad State and it is obvious from your letter that he is the accused.

4. Article 361(2) of the Constitution of India States as follows:

“‘No criminal proceedings whatsoever shall be instituted or continued against the President or the Governor or Raj Pramukn of a State in any Court curing the term of Office’.

If this article is to be taken into consideration as we should I request you to consider whether your direction is in order and let me know further, for taking suitable action. If you still consider that the enquiry should be made, I request you to send me the complaint in original to register a case and make proper investigation with your endorsement on it, noting the Section (159 or 202 of the Cr PC) under which you propose investigation to be made.”

5. After this letter was received the District Magistrate by his order dated 26-6-1954 deemed it fit to refer to the High Court two questions under Article 222 of the Constitution of India as involving a substantial question of law relating to the interpretation of the Constitution.

“(1) Does the phrase ‘Criminal proceedings’ in Article 361(2) of the Constitution of India include investigation under the Code of Criminal Procedure?

(2) Does the immunity from criminal proceedings mentioned in Article 361(2) extend to the official residence of the Executive Heads of the Union; and the State?”

6. This reference came up before a Bench of this High Court, which after considering the opinion of the District Magistrate that he had no power to refer a case under Section 432 of the Cr PC held it to be incorrect in view of the amendment to that section conferring power on a District Magistrate only in cases where he is of the opinion that any provision of an Act, Ordinance or Regulation is invalid or inoperative.

7. As the District Magistrate did not express an opinion to that effect, the Bench held that he had no power to make a reference, which consequently was rejected. It was then urged before the Bench that the reference should be considered under Article 228, but the learned Judges observed that as there was no application for withdrawal of the case before them, they could only consider the question if an application was made in that behalf.

8. When the papers went back the present District Magistrate in a detailed order dealing with the legal questions referred to the High Court by his predecessor directed the Commissioner City Police, as already observed, to enquire and report about the commission of offences mentioned in the information. The District Magistrate expressed the view that no criminal proceedings were being instituted against the Raj Pramukh which according to him can only be said to be instituted if a person is summoned to stand his trial or the Magistrate has made up his mind to act upon a charge-sheet against him and took some overt act to implement his decision. He was further of the view that the immunity under Article 361(2) of the Constitution did not extent to the residence of the Executive heads of the Union or States. Aggrieved by this order, H.E.H the Nizam through his Power of Attorney Agent, C.B Tarapurwala has filed this revision and asked for a stay of the order directing the Police to investigate. The stay application came before Dr. Siadat Ali Khan J., and one of us and in view of the important constitutional question involved in the revision, a stay was granted directing the Police Commissioner not to conduct any investigation or enquiry in compliance with the orders of the District Magistrate pending the disposal of this revision petition.

9. Though notice was given to the Government Advocate, the Advocate General has appeared on behalf of the State and the informant appeared through an Advocate. On the hearing of the petition, the learned Advocate for the informant has raised a preliminary objection that the order of the District Magistrate being an executive order, no revision against it can be entertained by the High Court.

10. The cases which have been cited by him viz., — ‘Emperor v. Anna Vithoba Accused.’, AIR 1931 Bom 514 (A); — ‘Manghanmal Gianchand v. Emperor’, AIR 1939 Sind 340 (B) and — ‘Alladatta v. Emperor’, AIR 1941 Bom 334 (C), are cases which have been decided under the Bombay City Police Act and the Bombay District Police Act where the District Magistrate had to exercise certain powers as an executive officer. A Magistrate though vested with powers under the Code of Criminal Procedure may also be vested with certain powers under special Acts as ‘persona designata’ and in discharge of such duties, he is deemed to exercise executive functions and is not amenable to the revisional jurisdiction of the High Court under Section 435 of the Cr PC on the ground that the proceedings were not those of an inferior criminal Court.

11. The cases of — ‘Zafar Mohd. Rashid v. General Secretary, New Bhopal Textiles, Ltd.’, AIR 1953 Bhopal 30 (D) and — ‘Ahmed Din v. Rijha Singh’, AIR 1950 All 652 (E), are cases where powers under Code of Criminal Procedure were not exercised. Be that as it may, the High Court has power under Section 439 of the Cr PC (in which the words ‘court’ or ‘inferior criminal Court’ are not used) read with Articles 227 and 226 of the Constitution to call for the records and interfere with any such proceedings if they are passed without jurisdiction or in dereliction of duty or are contrary to natural justice.

12. In Emperor v. Anna Vithoba Accused. (A), it was held that although an order of an executive officer was not an order of an inferior Criminal Court and cannot be set aside in revision when he makes an order or issues a notification, but when an attempt is made to enforce the exaction of a penalty against a person committing a breach of such order or notification, it becomes the duty of a judicial authority to consider whether the order is properly made or not.

13. An order passed by the Commissioner of Police Bombay under S. 27 was therefore liable to be questioned in a Court of Law. In Alladatta's case (C) another Bench of the Bombay High Court, in spite of the fact that Section 27 of the Bombay City Police Act was amended, held that even so it did not have the effect of constituting the Commissioner of Police, a Court, and that when he makes an order under that section he is merely an Executive Officer and not a Court subordinate to the High Court and hence his orders are not subject to revision by the High Court.

14. In ‘Manghanmal Gianchand v. Emperor (B), the Sind Court was dealing with the power of a District Magistrate to pass orders under R. 17 of the rules for licensing and controlling places of entertainment framed under Section 32-A of the Bombay District Police Act, and the question arose whether the exercise of that power by the District Magistrate was revisable. It was held that as he was not acting as an inferior Court within the meaning of Section 435 of the Cr PC and was only acting as an executive officer in the exercise of powers conferred upon him under the Bombay District Police Act, the High Court had no jurisdiction to interfere with the order.

15. These cases do not assist the contention of the learned advocate for the non-applicant because they were dealing specifically with cases where either the Police Commissioner or the District Magistrate was acting in exercise of powers conferred not by the Code of Criminal Procedure out by Police Acts which vested those powers on them as executive officers, nor was the question whether the High Court could interfere under Section 439 of the Cr PC considered. The other cases cited by him viz. — ‘R.R Chari v. State Of Uttar Pradesh .’, AIR 1951 SC 207 (F) and — ‘Venkata Subba Rao v. Naraharisetty Anjaneyulu’, AIR 1932 Mad 673 (G), are not relevant and do not deal with the question of revisional jurisdiction of the High Court.

16. In ‘Chari's case (F)’ the question was whether cognizance of an offence was taken by the Magistrate who ordered the issue of a warrant before the sanction of the Government under Section 197 of the Cr PC and Section 6 of the Prevention of Corruption Act, 1947 was granted. The revisional jurisdiction of the High Court was neither challenged nor adjudicated upon. In Venkata Subba Rao's case (G) the matter for consideration was whether the Sessions Judge was right in revising the order under Section 436 of the Cr PC which limited his power to two matters viz., to direct further enquiry to be made (a) into any complaint which has been dismissed under S. 203 or sub-s. (2) of S. 204 or (b) into the case of any person accused of an offence who has been discharged. In that case it was admitted that neither cl. (a) nor cl. (c) of Section 190 of the Cr PC applied and cl. (b) was the only one which would be applicable if it disclosed facts constituting an offence.

17. When the police report did not disclose the commission of any offence the magistrate was right in not taking cognizance of the case after the police had put in a referred charge-sheet and in directing it to be treated as one of a civil nature. In these circumstances it was held that the Sessions Court had no jurisdiction to revise the order and to direct further enquiry. This is quite a different thing from saying that the High Court has no power in such cases to revise the order of the lower Court either under Section 435 or under Section 439 of the Cr PC. In fact the High Court had exercised its revisional jurisdiction in that case presumably under Section 439 of the Cr PC for setting aside the order of the Sessions Judge.

18. The contention of the learned advocate for the informant is that the application of B.G Keskar dated 27-4-1954 was in the nature of an information laid before the District Magistrate under cl. (c) of sub-s. (1) of Section 190 of the Cr PC and the order passed by the District Magistrate thereon was in his executive capacity merely to ascertain from the police after due enquiry the truth of his suspicion. Such an order, the learned advocate submits, is not a judicial order and no revision can be entertained against it.

19. The learned advocate for the revision petitioner on the other hand contends that there is no warrant for treating any orders passed by a Magistrate in exercise of the powers conferred by the Code as executive orders; such orders can only be judicial orders against which the High Court is empowered to entertain, revision. In support of this contention, he has cited the case of — ‘Shiv Nath v. Emperor’, 7 Cri LJ 202 (Lah) (H) which is a single Bench judgment of the Chief Court of the Punjab. In that case the District Collecter who, as District Magistrate, had issued orders to the police to continue enquiry into a case which was seised by a Magistrate and when an enquiry was made by the Chief Court as to what law he had acted under in ordering the enquiry by the police to proceed, the District Magistrate replied that it was issued under no known law but by him as the Head of the Excise Administration and Collector of the District.

20. He therefore challenged the jurisdiction of the Chief Court to revise the order. Robertson J., held that when an illegal order is passed and action taken which involves matters coming under the purview of the Court, such authority cannot be ousted by the mere ipse dixit of the officer more particularly when no authority other than as a judicial officer for his action is cited. The argument put forward that a private person who has filed a complaint may continue his enquiries after the case has commenced and therefore a Collector may use the Police to continue his enquiries, was in his view obviously fallacious.

21. He further held that as the head of the Excise Administration the law does not give him the power to call in the police to use powers which they can only use under the law which applies to them. Therefore the District Magistrate in whatever capacity he may designate himself was not competent to order the enquiry to be made which is complained of in this case, after a competent Magistrate was seised of the case and it is clear that the Court has the power to prevent such a breach of the law.

22. This case does not meet the argument of the learned advocate for the informant in that the basis of the decision is that a competent Magistrate had already taken cognizance of the matter and the District Magistrate had no lawful authority to order further enquiry.

23. The preliminary objection postulates the question whether the order under revision is a proceeding and is before an inferior criminal Court for the purpose of Section 435 of the Cr PC. These very questions have to be determined for the purpose of cl. (2) of Article 361 where the words ‘Criminal proceedings instituted in any Court’ occur and in the view we have taken of these Questions the order of the Magistrate dated 27-4-1954 is subject to the revisional jurisdiction of the High Court under Section 435 of the Cr PC.

24. Further we have also power under Section 439 of the Cr PC. In — ‘P.T Chandra, Editor Tribune v. Emperor’, AIR 1942 Lah 171 (FB)(I), Bhide, J., at p. 172 observed with respect to the revisional jurisdiction under S. 439 as under:

“………Besides it does not seem necessary for the purposes of Section 439 of the Cr PC, that the District Magistrate should be acting as a ‘Court’. The wording of that section is very wide and covers ‘any proceedings’ the record of which had been called for by the High Court or which has been reported for orders, or which otherwise comes to its knowledge. The amendment of this section in 1923, has, I think, placed the power of the High Court to revise orders under Section 144 of the Cr PC, beyond any doubt”.

25. With great respect we entirely agree with this view. Even apart from these provisions of the Code, since the question is a constitutional one challenging the jurisdiction of the Magistrate to issue the order complained of, the High Court, can either wider Article 226 or under Article 227 of the Constitution exercise its writ jurisdiction or its power of superintendence. In this view of the matter we can entertain this petition.

26. The main question that falls for determination in this case is whether the District Magistrate could, in view of cl. (2) of Article 361 of the Constitution, entertain the application of the informant and direct an enquiry to be made by the police. This in turn would involve the determination of the question as to when a criminal proceeding is instituted in Court. Article 361 is in the following terms:

“361(1) The President or the Governor or Rajpramukh of a State, shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by any Court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61:

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State

(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor or Raj Pramukh of a State in any Court during his term of office.

(3) No process for the arrest or imprisonment of the President, or the Governor or Rajpramukh of a State, shall issue from any Court during his term of office

(4) No civil proceedings in which relief is claimed against the. President, or the Governor or. Rajpramukh of a State, shall be instituted during his term of office in any Court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor or Rajpramukh of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor or the Rajpramukh, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom, such proceedings are to be instituted and the relief which he claims'. Before dealing with the specific provisions of the aforesaid Article, it would be useful to cursorily examine the similar provisions of law in force before the Constitution and the rationale underlying these provisions in order to ascertain the intention of the framers of the Constitution and the extent of immunity which was sought to be conferred on the executive heads. Article 361 in some respects corresponds to sub-s. (1) of Section 306 of the Government of India Act which is as under:

“306(1) No proceedings whatsoever shall lie in and no process whatsoever shall issue from any Court in India against the Governor-General, against the Governor of a Province, or against the Secretary of State, whether in a personal capacity or otherwise, and, except with the sanction of His Majesty in Council, no proceedings whatsoever shall lie in any Court in India against any person who has been the Governor-General, the Governor of a Province or the Secretary of State in respect of anything done or omitted to be done by any of them during his term of office in performance or purported performance of the duties thereof:

Provided that nothing in this section shall be construed as restricting the right of any person to bring against the Federation, a Province or the Secretary of State such proceedings as are mentioned in Chap. III of Part VII of this Act.

(2) The provisions of the preceding sub-section shall apply in relation to His Majesty's Representative for the exercise of the functions of the Crown in its relations with Indian States as they apply in relation to the Governor-General”.

27. There are certain obvious differences between the two provisions dictated by change in the political emphasis, governing the basis of the respective instruments. Under the Government of India Act no process whatever could issue from any Court in India against a Governor-General or Governor or Secretary of State, which meant that it was not even possible to compel any of them to come into Courts and give evidence in any suit at the instance of any litigant. Clause (3) of Article 361 however only limits the immunity to the issue of any process from any Court for the arrest or imprisonment of the President or Governor or the Rajpramukh during his term of office and thus differs from sub-s. (1) of S. 306 which prohibits the issue of any process ‘whatsoever’.

28. There is therefore no constitutional bar against summoning the President, Governor or Rajpramukh as a witness though in exercise of the powers under Sections 133 of the CPC, 1908, a State Government may, by a notification in the Official Gazette, exempt any of them from personal appearance in any Court. The persons so exempted may however be examined on commission under: sub-s. (3) of S. 133 of the Code. But as far as criminal trials are concerned there is no power to exempt any person from attendance in Court except the power under Chap. XL, Code of Criminal Procedure, to examine them as witnesses on commission if the attendance of such witnesses cannot be procured without any amount of delay, expense, and inconvenience, which, in the circumstances of the case would be unreasonable.

29. The position before the Government of India Act, 1935, under Sections 110 and 111 of the Government of India Act, 1919, was that no criminal proceedings lay in the High Court on the original side against the Governor-General or Governor or Chief Commissioner or Executive Councillor or Minister in lespect of any thing done lay him except for treason, felony and no civil proceedings lay in High Court in respect of any thing done by any of them in their public capacity. Section 306 of the Government of India Act, 1935, has greatly enlarged the scope of the immunity and no distinction was made between an act done privately and an act done publicly.

30. The protection which under the previous law extended to Ministers, Executive Councillors and Chief Commissioner was withdrawn and though an attempt was made during the passage of the hill in the House of Lords to extend this immunity to the concillors of the Governor General, it was repelled by the Lord Chancellor on the ground that it would be quite impossible to extend the complete immunity which is given by this bill under excepional circumstances for exceptional reasons to the Governor-General himself and the Governor and the Secretary of State, to anybody outside those very high offices.

31. The framers of the Indian Constitution adopted the principle that prevailed under the Government of India Act by giving personal immunity from legal action whether during office or thereafter to the President, Governor or Rajpramukh for any act done or purported to be done by them in exercise of their powers and duties as laid down in the Constitution as well as immunity from criminal proceedings or from arrest or imprisonment by or under any process of a Court during their term of office. In so far as civil action against the President, Governor or Rajpramukh in their individual and personal capacity is concerned, whether these actions arose out of acts done before or after they entered upon their respective office, there is 110 immunity from any action in a Court of law against them except the immunity from arrest under cl. (3) of Article 361 and the condition that a suit cannot be filed before the expiration of two months next after notice in writing has been delivered to them specifying the details mentioned in cl. (4).

32. Clause (I) confers an absolute immunity from legal action whether during office or thereafter on the President, Governor or Rajpramukh of a State from being answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The proviso however authorises the review of the conduct of a President on his impeachment under Article 61 by Court or Tribunal or body appointed or designated by either house of Parliament for the investigation of a charge of violation of the Constitution.

33. If the charge is proved and a resolution passed in accordance with cl. (4) of Article 61 it has the effect of removing the President. In so far as the Governor or Rajpramukh is concerned there is no provision for impeachment but under Article 156 and under the relevant clause of Article 366 pertaining to the specified Rajpramukhs there is provision for removing them from the post of a Governor or withdrawing recognition of them as Rajpramukhs, if the President considers their continuance in that post to be undesirable or against public interest.

34. In other democratic countries whose constitutional provisions are analogous to ours, such immunities are conferred on Executive Heads. In the United States, for instance, the President is not subject to the control of the Courts with respect to the exercise of his powers of individual judgment. The Courts have no right to issue any kind of process or orders or directions to or against the President or compel him to perform any constitutionally imperative or a ministerial act.

35. He cannot even be compelled unlike under Article 361 of the Constitution to attend a Court as a witness. The position of the Governors of the States is not uniform; but in so far as their being subjected to the process of the Courts is concerned or of the Courts attempting to control them personally or interfere with his political acts, they ave absolute immunity. But with respect to their ministerial acts a Mandamus or a Quo Warranto may lie and such acts may be declared null and void if the action is ultra vires.

36. The principle upon which this immunity has been conferred in the United States is not based upon any idea that as in the case of King of Great Britain, he can do no wrong or upon any idea that sanctity attaches to any particular individual. If at all, the prevailing atmosphere at the time when the American Constitution was framed was hostile to monarchy and monarchial institutions. The principle that governed the framers of the American Constitution in giving this immunity is that persons occupying such a high office should not be amenable to the jurisdiction of any but the representatives of the people, before whom he might be impeached, tried and upon conviction of treason, bribery or other high crimes of misdemeanour re moved from office; and would afterwards be liable to prosecution and punishment in the ordinary Courts of law.

37. In so far as England is concerned the person of the King is sacred and inviolable. There is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without creating a crisis or a national revolution. At one time it was thought that a Viceroy of a colony had a similar immunity as a representative of the King and on the analogy of this principle even the Governors of colonies tried to claim immunity from civil and criminal proceedings in the Courts of their respective Governments or commands. A question whether a Governor can be tried in the Courts of his own colony has not been judicially decided. He is not a Viceroy but only an officer with limited authority.

38. It will thus be seen that when the executive heads of the Union or of a State are vested with certain powers and duties, it is necessary in any system of Government to give immunity to such persons in the discharge of their duties from being harassed in any way by making them not amenable to Courts of law, particularly when those functions are discharged on the advice of an executive responsible to the Legislature. The persons who occupy these high offices are not, as if they are above the law of the land, but are subject to it. The underlying basis of the immunity conferred on them in a democracy is that the process of election affords a certainty that the office will not fall to the lot of any man who is not fit or is not endowed with the necessary qualifications.

39. Whether the filling of the posts of the President or the Governor or as under the Government of India Act that of the Governor General or the Governor, is by election or appointment, the basic assumption is that these posts are filled by person pre-eminent for virtue and high moral calibre possessing the necessary ability and sense of responsibility for discharging the function entrusted to them. It is therefore self-evident that special immunity must be conferred on the persons occupying high Executive Offices of the Union or of a State from being subject to legal process or legal action. There is no gainsaying the fact that individuals occupying these high offices, though they may be of irreproachable character, integrity and acknowledged ability, may yet find themselves the object of vexatious harassment from persons actuated by malice, envy or idiosyncrasy.

40. If such immunity was not conferred upon the heads of the Union or the State the prestige and dignity of these high offices would be adversely affected and the confidence of the people in those persons would be greatly shaken besides impeding the smooth and efficient working of the Government itself of which they are the heads. On the other hand persons occupying such high offices particularly in a democratic country are expected to be and must of necessity be susceptible and sensitive to public opinion in conducting themselves. While this is so, there is always provided in the Constitution the power to remove any of these persons in the contingency of violation of the Constitution, misconduct, misbehaviour or of having ??? criminal offences etc.

41. This being the rationale underlying the immunity panted to the executive heads the specific question that falls for determination is whether the District Magistrate was justified in law in ordering an enquiry by the Police. Clause (2) of Article 361 with which we are really concerned affords immunity from any criminal proceedings whatsoever being instituted in any Court against the President, the Governor or the Rajpramukh as long as he holds that office. The prosecution if any for the is offence alleged to have been committed for any of them will remain suspended till after they vacate their office or are removed.

42. It fans act been disputed that the President OT the Governor or the Rajpramukh cannot be or be answerable in any Court for any offence alleged to have been committed during the term of his office but it is contended by the non-applicant's learned advocate and demurred to equally strenuously the foamed Advocate General and the learned Advocate for the revision-petitioner that the filing of an Information or complaint or the order of a Magistrate for an enquiry by the Police does not amount to criminal proceedings nor can they be said to be instituted in Court, unless cognizance is taken by a Magistrate or at any rate in much the same way as held in several cases under 29, Arms Act where proceedings are said to have been instituted only after a charge has been fed against the accused.

43. On the other hand the learned advocate for the revision-petitioner and the learned Advocate-General submit that ‘criminal proceedings’ occurring 361(2) should be construed in the same way and in the same manner as in S. 211, Penal and we should hold that as soon as an information or complaint is laid before a Magistrate involving the Rajpramukh or the Governor or President proceedings are deemed to have been instituted and the Magistrate has no power to entertain any such information or complaint.

44. Before dealing with the respective contentions of the learned advocate for the revision-petitioner and the learned Advocate General on the side and the learned advocate for the ??? on the other, it would be necessary Ito state that in interpreting a paramount instrument like the Constitution, the framers are presumed to have carefully and deliberately considered and framed it.

45. The constitution should be interpreted and to as a paramount law to which ill must yield and for this reason the construction should not be hedged in or defeated by ??? and should be aimed at giving effect to the purpose indicated by a reasonable interpretation of the language used without omitting to consider or refrain from giving effect to any word. It should be so construed as to advance the Intendment thereof and to prevent circumvention.

46. As observed by P.B Mukherji J., in — ??? Mandal v. Nilmoni Das’, AIR 1952 Cal 134 at p. 186(J.)

“Constitutional provisions are not to be interested and crippled by narrow technicalities but as ??? the working principles for practical. The Constitution is not the home curiosities. It is the epitome of the aspirations of a free political society. It so rendered in construction as to be able to receive and reflect the organ tomes of national”

47. Where no definitions of the terms used in the Constitution are given, they must be deemed to have been used by the Constitution-makers in the sense in which such terms are understood in common usage and understanding, according to the institutions of the country in which they originated or have obtained that meaning under the prevailing law. The framers of the Constitution, among whom were some of our illustrious lawyers, were not unaware of the term ‘Criminal Proceedings’ or ‘Institution of Criminal Proceedings in any Court’ or the words ‘Taking cognizance of an offence’ or ‘Judicial Proceedings’ or ‘Legal Proceedings under the Code of Criminal Procedure and Indian Penal Code respectively.

48. The question in this case is what are criminal proceedings and when are they said to be instituted in Court for the purpose of cl. (2) of Article 361. The words ‘Criminal Proceedings’ need not necessarily be judicial proceedings as defined in S. 4(1)(m) nor should there be a case pending before a Magistrate. The word ‘proceedings’ as used in that Article is much wider than the words ‘judicial proceedings’ which include any proceedings in the course of which evidence is or may be legally taken on oath. In our view a criminal proceeding is any proceeding or step taken in a criminal Court in accordance with some requirement of a procedural law governing such Courts.

49. For this reason it would be necessary to determine what under the provisions of the Code of Criminal Procedure amounts to institution of criminal proceedings. But before doing so, it may be useful to examine some of the English cases which considered the question as to whether the laying of an information or the filing of an indictment, a procedure analogous to that laid down in Section 190 of the Cr PC, amounts to the institution of criminal proceedings.

50. As pointed out by Brett M.R in — ‘Yates v. Reg, (1885) 14 QBD 648 at p. 654(K), criminal proceeding is much wider than criminal prosecution. The latter is only said to commence after process is issued for the accused to answer a charge or on an indictment. It was construed by some of the Judges in the same case before the Division Bench in — ‘Reg v. Yates’, (1883) 11 QBD 750 (L), that the prosecution is commenced when the first step is taken by the prosecutor, that is, on applying for the rule. In that case the question was whether an information for libel filed by order of the Court against the defendant who was the proprietor of a newspaper on the ground that the written fiat or allowance of Director of Public Prosecution had not been obtained (sic).

51. Incidentally the point which came to be really considered was whether a criminal information was a prosecution within the meaning of the Newspaper Libel Act, 1881. In considering this matter the state of the law as it existed prior to the passing of that Act was considered and in that sense the question when criminal proceedings commenced was discussed. The observations in that case were considered by Bankes J., — ‘In re Vexatious Actions Act 1896; In re, Bernard Boaler’, (1914) 1 KB 122 (M), in proceedings under the Vexatious Actions Act, 1896, under which an order by the High Court was passed against the applicant that no criminal proceedings shall be instituted by the applicant in the High Court or in any other Court unless he obtained the leave of the High Court, or satisfied such Judge that legal proceeding is not an abuse of the process of the Court and that there is a prima facie ground for such proceeding.

52. The applicant had given the statutory notice to the clerk of the Central Criminal Court that he proposed at the next ensuing sessions to present a bill of indictment to the Grand Jury against John Esson & Sons Ltd., in respect of certain misdemeanours committed within the jurisdiction of the Central Criminal Court. After receiving this notice he was informed by the recorder in Court that as he was prohibited from instituting any legal proceedings unless he had obtained the leave of the High Court or some Judge thereof to present the bill of indictment to the Grand Jury, he could not present the bill.

53. Against that order the applicant moved the Divisional Court and the matter was considered by three Judges Darling, Bankes and Lush JJ. The question was whether and how far the above order applied to criminal proceedings. Bankes J., having held that the Act applied to criminal proceedings went on to consider the question when are criminal proceedings instituted under the Act. After considering the various cases to which we shall hereafter advert, he observed at p. 130 as under:

“….In my opinion the preferring of an indictment or the laying of an information is within the mischief contemplated by the Vexatious Actions Act, 1896. I can draw no distinction between the word ‘institute’ and the word ‘commence’ as applied to legal proceedings except possibly that ‘institute’ is for the present purpose the stronger word of the two.

I find a strong body of authority and judicial opinion to the effect that the preferring of a bill of indictment or the laying of an information before a Magistrate is the commencement or the institution of a criminal proceeding, and I find nothing in the language or the object of this Act which leads me to the conclusion that I ought to endeavour to put any different construction upon the expression ‘institute’ as used in this Act.”

54. The decision in that case ultimately turned on the question whether the words ‘legal proceedings’ in the Vexatious Actions Act, 1896 applied to criminal proceedings and it was held by a majority, by Darling and Lush JJ., Bankes J., dissenting, that those words did not include criminal proceedings. No doubt Lush J., expressed the view that a person who applied on information to a Magistrate for summons or a bill of indictment to a Grand Jury does not institute legal proceedings within the meaning of the Act.

55. Willis J., in — ‘Beardsley v. Giddings’, (1904) 1 KB 847, at p. 851(N), observed that on the language of the Food and Drugs Act, 1899 the institution of a prosecution meant ordinarily the commencement of the proceedings by which a person is brought before the Court. That was a case in which it was argued that as the Act referred explicitly to the service of the summons under S. 10 of the Act, S. 19 when it speaks of a prosecution being instituted must mean that the service of summons is the institution. Lord Alverston, C.J, at p. 850 thought that was a dangerous argument and one that cuts both ways. He observed:

“It seems to me that the laying of the information and the issue of the summons upon that information were well known to be commencement of a prosecution and where the words used are ‘prosecution shall not be instituted’, I think it would require a stronger case to enable us to hold that did not mean the laying of the information.” In — ‘Brooks v. Bagshaw’, (1904) 2 KB 798 (O), which is again a case relating to the construction of Section 19 of the Sale of Goods and Drugs Act, 1899, referring to the case of ‘Beardsley v. Giddings (N)’, Lord Alverston, C.J, observed that they had, in that case, held the laying of the information and not the service of the summons was the institution of ‘the prosecution and he approved the observations of Willis J., (in the same case) viz., that the institution of a prosecution ordinarily meant the commencement of the proceedings by which a person is brought before the Court.

56. In the case of — ‘Thrope v. Priestnall’, (1897) 1 KB 159 (P), also it was held that under the Sunday Observance Prosecution Act, 1887, prosecution was instituted when information was laid. Willis J., at p. 162 said that the institution of the prosecution must be the laying of the information, and that no distinction can be properly drawn between ‘institute’ and ‘commence’. He observed,

“it may be that the Magistrate does not act upon the information and in that case no prosecution follows, and there is nothing to which the phrase ‘commencement of a prosecution’ is applicable. But where there is a prosecution, I cannot see any reason why the laying of the information which started it, is not the commencement of the prosecution and I certainly think this has been the meaning of the phrase commonly accepted in the profession.”

57. In these cases the question for consideration was when does a criminal prosecution commence or is instituted? Even Bankes J., who was considering, when criminal proceedings were instituted relied on certain observations in ‘Reg v. Yates (L)’, in the Divisional Court of Mathews, Hawkins and Field, JJ., and Lord Coleridge C.J, and in the court of appeal of Brett M.R who according to him

“expresses the opinion, that a criminal prosecution is commenced at (to use the language of Field J., at p. 764) the very institution of the preliminary investigation, that is to say the application to the Magistrate for summons or the presentation of the bill to the Grand Jury or the application for rule nisi where that proceeding is necessary.” It will thus appear from the observations of Bankes J., that the words ‘criminal proceedings’ being wider than the words ‘criminal prosecution’ even the laying of an information or the notice to present the bill of indictment to the Grand Jury-would amount to institution of criminal proceedings. Gray J., in an American case— ‘Geo. W. Post v. United States’, (1896) 161 US 583 (Q), held exactly the opposite to what Bankes J., held. He observed:

“The submission of a bill of indictment by the attorney for the Government to the Grand Jury and the examination of witnesses before them are both in secret and are no part of the criminal proceedings against the accused, but are merely to assist the Grand Jury in determining whether such proceedings shall be commenced; the Grand Jury may ignore the bill and decline to find any indictment; and it cannot be known whether any proceedings will be instituted against the accused until an indictment against him is, presented in open. Court.”

58. According to him

“criminal proceedings cannot” be said to be brought or instituted until a formal charge is openly made against the accused either by indictment presented or information filed in Court or at the least, by complaint before a Magistrate.”

59. On a consideration of these cases, it appears to us that, as far as the English and the American cases are concerned which were really considering a question as to when a prosecution was instituted or commenced, the laying; of the information followed by the issue of process or the filing of an indictment or the proceedings before a Magistrate for committal or on a summary jurisdiction would amount to institution of criminal proceedings.

60. Bankes J., was the only Judge who dearly laid down that the laying of information or uvea a notice to file a bill of indictment before the Grand. Jury would amount to the institution of criminal proceedings. It is, how ever, clear from the observations of Alverston C.J, ‘In re Beardsley v. Giddings (N)’, that where a statute prohibits the institution of a prosecution, the mere laying of an information would be deemed to be an institution of criminal proceedings.

61. Under our law the phrases ‘institutes criminal proceeding’ and ‘no proceeding shall be instituted’ and ‘no Court shall take cognizance’ have been construed under S. 211, I.P.C, Section 29 of the Arms Act, Sections 196, 196A, 197 and 197A of the Cr PC. Before considering the construction placed on the different terms used in the aforesaid provisions of law, it would, in our view, be useful for an understanding of the points for determination to examine briefly the steps necessary to institute criminal proceedings leading up to the prosecution and trial of an offender under Code of Criminal Procedure. Chapter XIV deals with information to the police and their powers to investigate.

62. Chapter XV concerns with the jurisdiction of the criminal Courts in enquiries and trials while Chaps. XVI and XVII are confined to the provisions relating to complaints and the commencement of proceedings before Magistrates. Offences are classified as cognizable and non-cognizable in accordance with the powers of the police specified in Sch. 2 to arrest with or without a warrant. In a cognizable case the police can arrest without a warrant while in a non-cognizable case the police can neither investigate nor can they arrest without the orders of or a warrant from a Magistrate.

63. Under S. 154 as soon as information of a cognizable offence is received by the police they can take generally five steps under Sections 156, 157, 160, 161, 162, 165, 166, 169, 170 and 173 of the Cr PC, which as classified by Jagannadhadas J., in — ‘Rishbud v. State of Delhi’, (S) AIR 1955 SC 196 at p. 201(R); are as under (1) proceeding to the spot (2) ascertainment of the facts and circumstances of the case (3) discovery and arrest of the suspected offender (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under S. 173 and if there is no sufficient evidence, releasing the accused under S. 169.

64. It is clear that the police have a statutory right to take the aforesaid steps without requiring any directions or orders from judicial authorities. In a non-cognizable case, only if the Magistrate so directs, the police can investigate and exercise all the powers which they are authorised to exercise in the investigation of a cognizable offence except the power to arrest.

65. Further the Magistrate can be moved in a cognizable or a non-cognizable offence to initiate criminal proceedings under S. 190(1) which is as under:

190(1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate, or Sub-divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence,

(a) upon receiving a complaint of facts which constitue such offence,

(b) upon a report in writing of such facts made by any police officer,

(c) upon information received from any person other than a police officer or upon his own knowledge or suspicion, that such offence has been committed”.

66. This section authorises the taking of cognizance in three cases (i) on a complaint as defined in cl. (h) of Section 4 of the Cr PC, generally of a non-cognizable offence though there is nothing in the definition of complaint which requires it to be made only in such cases; (ii) upon a report made by a police officer after completion of investigation requesting the Magistrate for issuing process; and (iii) when the Magistrate suo motu takes notice at an offence and directs the police to investigate and report and alter applying his mind to that information issues process. With respect to cl. (a) when an allegation is made orally or in writing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown has committed an offence it is a complaint as defined by S. 4(1)(h).

67. On such a complaint being filed the Magistrate is authorised to take action under any of the subsequent sections viz.: by transferring it to another Magistrate under S. 192 or by examining, the complaint under S. 200 or without his examination where the complaint is by a public servant. On a perusal of the complaint and after taking, the statement on oath of the complainant he can either issue process under S. 204 if there is sufficient ground or postpone the issue of it and direct an inquiry on investigation under S. 202. Where the Magistrate has directed an investigation to be made by the police, the process is issued only on a consideration of the result of the inquiry or investigation.

68. Clause (b) of Section 190 of the Cr PC authorises a Magistrate to take cognizance of an offence upon a report in writing of such facts made by any police officer. A report by the police can either be the result of an investigation of a cognizable offence conducted on information received under S. 154 or under the directions of a Magistrate on information received by him under which the Magistrate acts suo motu and in order to ascertain the truth of the allegation. An information is of a general character leading to the conclusion that an offence has been committed but may not require the Magistrate to move in the matter or it may be that the Magistrate has obtained it during the course of his official duty or otherwise than as a Magistrate.

69. If on this information the Magistrate has reason believe that an offence has been committed and is unable to proceed in the ordinary way owing to the absence of any complainant or the absence, of a police report about it, he can exercise his powers under cl. (c). Where there is a police report on a complaint, the Magistrate cannot ignore it and proceed under cl. (c). It is said that the taking of cognizance is a mental act. This may be strictly speaking true but the only way in which it can be ascertained whether the Magistrate has taken cognizance or not is to determine the nature of the action taken, by him. In our view the Magistrate takes cognizance of an offence whether under cl. (a), (b) or (c) of sub-s. (1) of Section 190 of the if he Acts under any of the subsequent provisions of the Code.

70. Further when as a result of investigation had the filing of a police report, process is issued by the Magistrate to compel or cause the attendance of the accused to answer the allegation against him or where the police send up the accused with a charge-sheet, the Magistrate taking cognizance of the offence is empowered to hold an enquiry or trial in accordance with the provisions of the Code of Criminal Procedure. This is the stage at which trial or enquiry begins. It will now be necessary to ascertain at what point of time a criminal proceeding is said to be instituted, that is, whether on the filing of a complaint or information or on the Magistrate taking cognizance of the offence or when he issues process or on the filing of a challan when enquiry or trial begins.

71. When a criminal proceeding is instituted is, in our view, a question which must obviously depend upon the intention of the Legislature in relation to the particular object sought to be achieved by the provision of law in which those words are used. The point of time at which a criminal proceeding is instituted for purposes of different provisions of law will be different as we will presently see. Institution of criminal proceedings for purposes of S. 211, I.P.C, or for the purposes of the Arms Act or under the Special Criminal Courts Ordinances as to when vested rights accrue to the accused such as the right of appeal or right of trial by jury or under any other provisions of law, will differ.

72. The point of time at which criminal proceedings are said to be instituted for the purposes of S. 211 have been construed by almost all the Courts in India with respect to the first part of S. 211, I.P.C to be the giving of information to the police or moving the Magistrate to take proceedings or to direct an inquiry. With respect to the second part, there has been a conflict of opinion between the Allahabad and Bombay High Courts on the one hand, and the Calcutta, Madras, Patna and even Benches of Allahabad and Bombay, on the other, the former taking the view that the words ‘institutes criminal proceedings’ occurring in the first part should be construed differently from the phrase ‘if such criminal proceedings be instituted on a false charge’ occurring in the second part.

73. Under Section 29 of the Arms Act proceedings are said to be instituted when the challan is filed. Whether criminal proceedings are said to be instituted for the purposes of cl. (2) of Article 361 in the sense of S. 211, I.P.C or Section 29 of the Arms Act, it is well to remember that in construing the words used in the provisions of different statutes particularly a penal statute regard must he had to the intendment of each of those provisions.

74. Section 211, I.P.C creates an offence for instituting criminal proceedings with intent to cause injury to any person or falsely charges any person with having committed an offence knowing that there is no just or lawful ground. The section is in the following terms:

“S. 211. Whoever with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which any extent to two years, or with fine, or with both;

and if such criminal proceeding be instituted on a false charge of an offence punishable with death, transportation for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extent to seven years, and shall also be liable to fine.”

75. An examination of the case law under this section inclines us to the view that when a person moves an authority under the Code of Criminal Procedure be he a police officer or a Magistrate with a view to getting the criminal law in motion against another he will be deemed to have instituted criminal proceedings because the taking of such a step is all that he can do to institute criminal proceedings and nothing more.

76. In a cognizable offence where the police can without any authority from a magistrate investigate, arrest and file a challan against a person accused of an offence the laying of the information by any person under S. 154 before the Police falsely charging another with an offence and causing such officer to investigate would be instituting criminal proceedings within the meaning of S. 211, I.P.C But if the information so laid does not disclose a cognizable offence, then the laying of the information before a Police Officer has been held not to amount to institution of criminal proceedings because he is not authorised to investigate without the orders of a Magistrate under Section 155 of the Cr PC.

77. Similarly where a person files a complaint against another before a Magistrate authorised to take cognizance of an offence under Section 190 of the Cr PC, he institutes criminal proceedings by setting the criminal law in motion because the magistrate is bound to take cognizance of the offence by either ordering an investigation or by transferring the case to another Magistrate. As the distinction between a non-cognizable offence and cognizable offence relates only to the powers of the police to arrest without a warrant, a false charge of an offence whether cognizable or non-cognizable before a Magistrate is an institution of criminal proceedings.

78. In cases under S. 211 it is assumed that the charge made by the accused is false which can only be as a result of investigation by the police or of an inquiry or trial. For this reason where a complainant prefers a criminal charge before a Magistrate who neither examines him on oath nor takes down his statement in accordance with S. 200 no proceedings will lie under S. 211, I.P.C (See “In re, Pampeppa Ballalrao Desai’, AIR 1926 Bom 284 (S)).

79. In — Imperatrix v. Jijibhai Govind’, 22 Bom 596 (T); — ‘Parameshwar Lal v. Emperor’, AIR 1925 Pat 678 (U), — ‘Queen-Empress v. Nunjunda Rau’, 20 Mad 79 (V); — Emperor v. John’, AIR 1931 All 269 (W); — ‘Nanhkoo Mahton v. Emperor Opposite Party.’, AIR 1936 Pat 358 (X); — ‘Emperor v. Karsan Jesang’, AIR 1941 Bom 414 (Y); — ‘Empress of India v. Pitam Rai’, 5 All 215 (Z) and — ‘Queen Empress v. Bisheshar’, 16 All 124 (Z1) information was given to the police with a view to setting the criminal law in motion and the police after receiving the information commenced investigation, and it was held that the accused had instituted criminal proceedings.

80. In the cases of Parmeshwar Lal v. Emperor (U); Queen Empress v. Nunjunda Ram (V); ‘Emperor v. Johori (W); Emperor v. Karsan Jesang (Y) and Empress of India v. Pitam Rai (Z) the point for determination was whether under the second part of Section 211 of the Cr PC would be said to be instituted only on a charge-sheet being filed before the Magistrate.

81. The whole question turned on the consideration of the words ‘on a false charge’ in the second part. At any rate, it may be said that the weight of authority in India is for construing both ports in the same way, namely, that the institution of criminal proceedings would be said to begin when a person files an information before the police or a complaint before a Magistrate with a view to setting the criminal law in motion against any person.

82. The filing of an information in Court is not covered as it lacks the necessary requisites of S. 211, because, if a false charge is made with a view to initiate proceedings it would require specific allegations against any person and a request to the Court to take action, both of which would make it a complaint within the definition of S. 4(1)(h). The point of time at which criminal proceedings are instituted for the purposes of S. 211, I.P.C is only relevant for determining the actus reus constituting an offence under it.

83. This must relate to the act of the accused and cannot be made to relate to a point of time when some action is taken depending on the ultimate result of the investigation or inquiry.

84. Section 29 of the Arms Act on the other hand prohibits any proceedings being taken against an accused alleged to have committed an offence punishable under S. 19 of the said Act without the previous sanction of the Magistrate of the District or in the Presidency towns, of the Commissioner of Police. Under S. 30 of the said Act also the phrase ‘proceedings instituted’ has been used in elation to a search to be conducted by an officer specially appointed by name or in virtue of his offence by the Central Government in this behalf.

85. In construing these words in S. 29, it has been held by the various High Courts that sanction for the purposes of institution of proceedings should be accorded before the filing of a challan and not before any investigation is made or ordered. It was sought to be argued that the institution of criminal proceedings for the purposes of S. 30 should also be construed in the same way, and since institution takes place before sanction is made, the interpretation given to those words in S. 29 is not correct. This argument was rejected in — ‘Muzaffar Shah v. Emperor’, 52 Cal WN 265 (Z2), where it was held that the word ‘proceedings’ in Sections 29 and 30 of the Arms Act has the same meaning and contemplates proceedings earlier to any proceedings taken in Court.

86. Where, however, a clear severance is possible between the proceedings at the investigating stage and the proceedings in Court, the proceedings in Court will be valid if the sanction required by S. 29 is granted before the proceedings are started in Court; and for the purposes of S. 30 the institution of the proceedings refers to the earlier stage when proceedings are started by the police in connection with the case before they proceed to search acting on information.

87. In the case of — ‘Ismail Khan v. Emperor’, AIR 1927 Cal 721 (Z3), it was held that entering a case in the case book & making out a charge-sheet is not institution of proceedings under S. 29, because the word ‘proceeding’ in S. 29 did not mean that no action can be taken by any police officer or otherwise in the matter without the previous sanction of the Commissioner of Police; and the proceedings really start when the accused is placed before the Court.

88. We are of the view that these cases are not authorities for the proposition that criminal proceedings are instituted only on cognizance of an offence being taken by some act of the court whether on a complaint or on a police report or on a challan being filed. As pointed out by Roxburgh J., in ‘Muzaffar Shah's case (Z2)’,

“ordinarily it has always been assumed that the point of time referred to was when the prosecution was started by the submission of a challan in the case on which the Court could take cognizance. No case has been brought to our notice in which any other view has been taken”.

89. It is true that both under S. 211, I.P.C and Section 29 of the Arms Act, criminal proceedings are instituted at a point of time before cognizance of an offence is taken under Section 190 of the Cr PC, but with this difference that as the word ‘Court’ is not used in S. 211, I.P.C which deals with a person instituting criminal proceedings, the institution of these proceedings is referable to the earliest point of time when, in the language of Wilson, J., in — ‘Karim Buksh v. Queen Empress’, 17 Cal 574 (FB) (Z4) “the first step ordinarily is also the last”.

90. In other words while S. 211, I.P.C deals with a person instituting criminal proceedings not necessarily in a Court, S. 29 deals with the point of time just before the institution in Court. It is again contended by the learned advocate for the non-applicant that the words ‘no criminal proceedings shall be instituted’ in cl. (2) of Article 361 should be taken to mean that ‘no Court shall take cognizance of an offence.’

91. The point of time at which cognizance is taken is when the Magistrate applies his mind to the particular matter of which he is authorised to take cognizance and acts on it as authorised by the provisions of the Code. When the words ‘no Court shall take cognizance’ are used, the legislature meant nothing more nor less than that the Magistrate will not act unless the requirements specified in Ss. 196, 196-A, 197, and 197-A are fulfilled. It is quite probable that a complaint may have been filed, the police report, or a challan might have been sent up to the Magistrate, all of which may be validly filed or received in court; but the magistrate cannot take notice of it and proceed further without the requisite sanction.

92. If sanction is received between the filing of those documents and the Magistrate taking cognizance of the offence he may be validly vested with jurisdiction to try the case. We are supported in tills view by the judgment of the Supreme Court in AIR 1951 SC 20 (F), where Kania C.J, at p. 210 approved the observations of Das Gupta J., in the case of ‘Superintendent and Remembrancer of Legal Affairs. West Bengal v. Abani Kumar’, AIR 1950 Cal 437 (Z5):

“…………that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a) of the Cr PC, he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding, in a particular way as indicated in the subsequent provisions of this Chapter, proceedings under S. 200 and thereafter sending it for inquiry and report under S. 202.

When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter but for taking action of some other kind e.g, ordering investigation……. under S. 156(3) or issuing a Search warrant for the purpose of the investigation he cannot be said to have taken cognizance of the offence”.

93. It is argued that the taking of cognizance is not sufficient for institution of criminal proceedings but some further act must be done, viz., that the Magistrate alter taking cognizance must issue process to the accused to answer the allegations against him. This, no doubt, was the view taken by Meredith, J., in the case of — ‘Gopal Marwari v. King-Emperor, AIR 1943 Pat 245 (Z6), where he says at page 251:

“In my judgment the word cognizance is used in the Code to indicate the point when a Magistrate or a judge first takes judicial notice of an offence. It is a different thing from the initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate. Cognizance is taken of cases, not of persons and there seems to be nothing in theory to prevent a Magistrate from taking cognizance of a case, even where the offenders are unknown.

The fact that a Magistrate has taken cognizance does not necessarily mean that there will be judicial proceedings against any one. For example where cognisance is taken upon a complaint, the complaint may be summarily dismissed or may be dismissed after inquiry under S. 203. The accused may never be summoned or made a party to the proceedings. In fact the person complained against may never become an accused person in the technical sense.

Nevertheless having regard to the terms of S. 200 it is clear that in such a case cognizance has been taken. Section 200 seems to regard the taking of cognizance as something prior even to the examination of the complainant upon oath”.

94. It appears to us that the above view is based on equating ‘institution of criminal proceedings’ with that of ‘commencement of judicial proceeding’. With great respect, we are unable to agree with the above view it is meant that the institution of criminal proceedings are equivalent to the institution of the judicial proceedings, because the words ‘judicial proceeding’ have been defined in Section 4(1)(m) of the Cr PC could have easily been used by the Legislature if it had intended to confine the meaning of that term to a point of time after the issue of process, by making the accused person a party before the Court. It this is what was intended, the words used would not be criminal proceedings, but criminal prosecution, as indeed this is what was said at page 253:

“…. The point then at which the right to any particular form of trial first accrues is, in my judgment, the point when the prosecution commences, and that is the point when the accused person is first made party to judicial proceedings'. The taking cognizance of an offence means the taking notice of an offence with a view to taking judicial proceedings against the offender in respect of that offence, which means, that before cognizance is taken of the offence the offender should be an individual who is specified so as to enable the Court to take proceedings against him. If the accused person is not specified and the complaint is against some person or persons unknown, then it cannot be said that criminal proceedings have been instituted against any specified person, but nonetheless criminal proceedings are instituted against an accused person or persons who may be ultimately discovered to have been concerned in the commission of the offence.

95. In the case of — ‘Banwari Gope v. The King-Emperor’, AIR 1943 Pat 18 (FB) (Z7), a Full Bench of the Patna High Court was considering the question when for the purposes of Special Criminal Courts Ordinance, proceedings are commenced. Fazi Ali J., delivering the judgment of the Full Bench, after referring to the observations of Cotton, L.J, in (1885) 14 QBD 648 (K), to which we have already made a reference, observed that either the summoning of the accused person or any other step which is equivalent to it must be held to mark the initiation of the criminal proceedings against him and on these steps follow automatically after a Magistrate has taken cognizance of a particualr offence it may be safely laid down that there is a criminal case against the accused person as soon as a Magistrate has taken cognizance.

96. In the result, the Full Bench held that the taking of cognizance by the Magistrate before the Ordinance came into force was initiation of criminal proceedings and that he should be tried by the procedure which came in force at the date of the initiation of proceedings against him and that he had a right of appeal as well a right to apply to the High Court for revision of his conviction and sentence. In ‘Gopal Marwari's case (Z6)’ also the question for consideration was whether criminal Courts Ordinance affected a vested right of appeal or a right to be tried by a jury acquired by an accused under the existing law. The whole emphasis in this case was when does an accused acquire vested right of trial under the ordinary criminal law in view of the fact that the word used in the Special Criminal Courts Ordinance was ‘trial’.

97. This right, it was said, only accrued when the accused is either produced before the Court or a warrant or process has been issued against him for putting him on trial. If the interpretation given by Meredith J., was also given to the words ‘institutes criminal proceedings’ in S. 211 then all these decisions of the several High Courts which have held consistently that as soon as the accused files an information before the police or a complaint before a Magistrate with a view to criminal proceedings being taken, (sic) would be set at nought. The same result would follow if this interpretation were given to the words in S. 29. That this is not what was intended is made clear by Meredith J., at page 253 when he says:

“It must be remembered that we are in these cases considering the rights of individuals not against any other individual who may have complained against him, who may have given information to the police against him, but against the State which has signified its intention of prosecuting him.”

98. In the same case Fazl Ali, J., with whose opinion. Manohar Lall J., agreed, after setting out in detail the various provisions of the Code relating to the taking of cognizance and when cognizance is taken of an offence, expressed his view at page 268 as under:

“……. But in my opinion, after making due allowance for a special group of cases the statement that there is a criminal case against the accused as soon as the Magistrate has taken cognizance may be found to be a useful test in a large majority of cases. It is to be noted that S. 190 occurs in part. B of Ch. 15 which is headed “conditions requisite for initiation of proceedings.”

99. Section 190 is not the only section in this part, but there are other sections viz: 195, 196, 196A, 196B, 197, 198 and 199 which state that Court can take cognizance of certain offences only upon a complaint made by certain specified persons. The heading of part B which is “Conditions requisite for initiation of Proceedings” shows that there is an intimate connextion between cognizance and initiation of proceedings and the importance of the cognizance test has therefore been emphasised in the decisions of other Courts also.”

100. There can be no exception to this view though it seems to be at variance with that expressed by Meredith J., which in any case should be limited to the actual question that fell for determination in those cases, namely, when the accused had a vested right for purposes of trial, appeal or revision.

101. After the weighty pronouncement of their Lordships of the Supreme Court in AIR 1951 SC 207 (F), two things appear clear (1) that the initiation of proceedings commenced on cognizance of the offence by the Magistrate under one of the three contingencies mentioned in S. 190(1) and (2) that for cognizance to be taken the Magistrate must not only have applied his mind to the contents of the petition but must have done so for the purposes of proceeding in a particular way as indicated in the subsequent provisions of that Chapter.

102. There is, in our view, a fine distinction between taking cognizance of an offence and institution of criminal proceedings. Institution of criminal proceedings should be looked at from the point of view of something done to commence such proceedings whether as interpreted under S. 211, I.P.C, criminal, proceedings are instituted when police or the Court is moved, or as under Section 29 of the Arms Act only where the Court is moved.

103. The point of time between the filing of a police report and the acc of the Magistrate in taking cognizance, is that which differentiates the institution of criminal proceedings and the taking of cognizance. The words ‘criminal proceeding’ used in cl. (2) of Article 361, must, therefore, refer to the point of time when something is done to move the Court to take cognizance of the offence against the President, Governor or Rajpramukh, in much the same way as the term ‘institution of proceedings’ has been interpreted under Section 29 of the Arms Act.

104. We have already examined at some length the ratione underlying the immunity afforded to the executive heads and any interpretation of cl. (2) of Article 361 must be such as to be consistent with it and further that intendment. The object, in our view, was not only to prohibit the heads of the executive from being involved in criminal proceedings during their term of office, but also to avoid any publicity whatever in relation to any alleged offence, because it is necessary in the interests of the State and good government that those persons should, as long as they are holding the office, be kept free from involvement in a criminal Court.

105. It is mo use saying, as the learned advocate for the informant says that the alleged application is not to move the court to prosecute the Rajpramukh but only to investigate the alleged offences under Ss. 346 and 370 I.P.C against him or as the learned District Magistrate thinks that it is only for the purposes of satisfying his doubts as to the correctness of the allegations in the petition, when the whole object of the inhibition in cl. (2), as we have said, is to keep the executive heads free from any kind of criminal proceedings against them in Court and thereby giving them publicity. Once the dignity of the office is allowed to be impaired, the damage guarded against is done.

106. Viewed from this point the word ‘whatsoever’ used with the words ‘no criminal proceedings’ in cl. (2) of Article 361 enlarges the scope and extent of the immunity to a stage prior to the taking of cognizance. The word ‘whatsoever’, in the language of Fry L.J, in — ‘Duck v. Bates’, (1884) 13 QBD 843 (Z8),

“as a rule, excludes any limitation or qualification, and implies that the genus to which it relates is to be understood in its utmost generality.” or as Cockbam C.J, has said in — ‘R. v. Kent Justices’, (1860) 29 LJ MC 191 (Z9), the insertion of the word ‘whatsoever’ has been held in several of the cases to which we have been referred, to make a great difference in the interpretation of an exempting clause, and to enlarge its operation.

107. There are two other matters which require consideration, that is, (1) as the order of the Magistrate to the police to investigate was passed under sub-s. (3) of Section 156 of the it is not an Act of court but is of a purely executive nature; and (2) that an information to a Magistrate does not amount to institution of criminal proceedings.

108. With respect to the first point, it is argued that since cl. (2) limits the immunity to the institution of criminal proceedings in a Court, the police are not prevented from investigating into an alleged commission of any cognizable offence or offences by the Rajpramukh if they receive any information relating to the commission of such offence from any citizen. There is no doubt that the police can act on an information under Section 154 of the Cr PC and investigate any alleged cognizable offence or offences and take the four out of the five steps referred to by their Lordships of the Supreme Court in the case of — ‘Rishbud v. State of Delhi (R)’ which includes the arrest of the person suspected of the offence but are prohibited from filing a challan.

109. This position has not been seriously controverted by the learned advocate for the revision-petitioner because the investigation by the police is always in secret. The Advocate General however submits that even the police cannot investigate an offence although he has not referred us to any provision of law. It may perhaps be contended that because President, Governor or the Rajpramukh being the head of the executive by virtue of Articles 53 and 154 read with Article 238, the police may not investigate any offence or offences against them. But that is not a question which falls for consideration in this case and might seriously involve a question as to the duties of police which they have to discharge under the law.

110. If the framers of the Constitution wanted to avoid even investigation by the police against President, Governor or Rajpramukh of offence or offences of a serious nature in a cognizable case which are alleged to have been committed by them, they would not have used the word ‘Court’ and if they had omitted the word, the limitation of the immunity during the term of office would have become otiose. After all if some individual occupying high post is seriously involved in an alleged offence, there is no point in saying that he is removeable under the Constitution, for misbehaviour or misconduct, and yet bar the way for investigation and collection of evidence whether for the purpose of removal or for the purposes of subsequent prosecution after he has ceased to hold the office.

111. This being the position, the learned advocate for the non-applicant argues that when a Magistrate refers the information to the police under Section 156(3) of the Cr PC for investigation in so far as cognizable offence is concerned it must be deemed to be an executive order. This argument appears to us to be without substance or authority. No doubt in States where the executive and judicial functions of magistrates have not been separated, there has been a view that if a Magistrate on receiving information directs the police to inquire and report about the commission of an offence in order to ascertain the truth of his information and confirm his suspicion, that order is said to have been given in discharge of his executive functions.

112. In all these cases which have been dealt with while considering the preliminary objection, it was seen that the Magistrate did not purport to act under the provisions of Code of Criminal Procedure, it is however necessary to point out that in this State, there has been a separation, of the judiciary from the executive, over a quarter of a century ago and the Magistrates authorised to take cognizance of offences under S. 190 are judicial Magistrates. In our view every action taken by a Magistrate which he is empowered to take under the provisions of the Code of Criminal Procedure, as we have already observed, is a criminal proceeding and such criminal proceedings are instituted when some step is taken with a view to initiating criminal proceedings or making an inquiry.

113. Section 6 of the Code enumerates the different classes of Courts exercising jurisdiction under it and states

“Besides the High Courts and the Courts constituted under any law under the Code for the time being in force, there shall be five classes of criminal Courts in India viz: Courts of Session Presidency Magistrate, Magistrate of the First Class Magistrate of the Second Class and the Magistrate of the Third Class.”

114. The ordinary powers which the different grades of magistrates exercise are under S. 36 conferred on them respectively and specified in Sch. 3. Section 37 sets out that in addition to the ordinary powers which any sub-divisional Magistrate or any Magistrate of the first, second or third class may be invested, the Provincial Government or the District Magistrate may confer on them the powers specified in Sch. 4 as the case may be.

115. It would appear that where a Magistrate exercises powers conferred on him by the Code, he exercises them as a Court and there is no necessity for any judicial proceedings to be pending at the time before he could be deemed to exercise those powers as a Court. Their Lordships of the Privy Council in the case of — ‘Loftus Otway Clarke v. Brojendra Kishore’, 39 Ind App 163 (PC) (Z10), have tersely observed,

“for the sake of brevity the Code uses the terms ‘Court’ and ‘Magistrate’ generally if not always as convertible terms.”

116. In that case the question was whether the action of the District Magistrate in conducting a search in his presence was valid or not. It appeared that the Magistrate after serious riots between the Hindus and Mussalmans, had ordered a general search of the cutcheries and as a consequene certain doors and boxes had to be broken, open. On a civil suit being filed agains the District Magistrate for criminal trespass a decree was passed against him for Rs. 500 without costs. The High Court had held his action to be without legal authority in that he was not acting as a court within the meaning of Section 96 of the Cr PC when he ordered a general search.

117. Both the Chief Justice and Harrington, J., had taken the view that the District Magistrate was not acting as a Court under S. 96 and that S. 105 did not confer upon him a right to make a general search as a Court but only as a Magistrate. Harrington J., went further and said that S. 96 only authorises the Magistrate to issue a search warrant when sitting as a Court i.e, when some proceeding under the Code has been initiated before him.

118. Lord Maonaghten delivering the judgment of their Lordships of the Privy Council after setting out the various categories of Courts under Section 6 of the Cr PC, and the ordinary powers conferred upon the different categories of the Magistrates under S. 36 read in conjunction with Sch. 3 observed at pp. 5, 176 and 177:

“…. The ordinary powers of all provincial magistrates are declared to be those ‘hereinafter conferred upon them and specified in the Third Schedule’. That means conferred upon them by the Act and specified in the Third Schedule to the Act. As appears by the Schedule the power to issue search warrants is specified among the ‘ordinary powers’ of all provincial magistrates, but the only section conferring the power is S. 96 to which the Schedule itself refers……………… Their Lordships…………………have no doubt, that Mr. Clerke in directing a general search of the plaintiff's cutcherry in view of an inquiry under the Code of Criminal Procedure was acting in the discharge of his judicial functions,…………….’

119. It is clear from this judgment that apart from any pending proceedings, where a Magistrate in view, of an information exercises powers conferred on ‘him under the Code, he does so as a criminal Court. In AIR 1942 Lah 171 (I), a Full Bench of the Lahore High Court, consisting of Young C.J, Bhide and Muhammad Munir JJ., held that

“Where a District Magistrate acts as District Magistrate, he is a Criminal Court. There distinction between an order passed by him after evidence has been taken and an order passed suo motu after considering the material which is with in his knowledge.”

120. With respect to the second point, viz., that an information to a Magistrate does not amount to criminal proceedings, it is clear that an information is invariably in general terms either with respect to the commission of the offence or with respect to the specific individual by merely bringing the facts disclosing the commission of an offence to the notice of the Magistrate for such action as he may take thereon. If a person sets out the facts constituting an offence as being committed by some person or persons with a view to the Magistrate taking action thereon, that would come within the definition of complaint.

121. On an information the Magistrate acts suo motu and the stage of taking cognizaince may not airse till after the police have filed a report of their investigation or inquiry. It may be that the information is merely general and may not name any person and in such circumstances it cannot be said that the criminal proceedings have been instituted against any one. An informant may generally state that a certain offence is committed in the Raj Bhavan which on the fact of it may not necessarily involve the Rajpramukh personally but may involve his servants or officers or other persons resident therein.

122. We are not very much impressed by the argument of the learned advocate for the revision petitioner that even in a case where the Rajpramukh is involved along with any other person or persons actually committing the offence no action can be taken against those persons because the prosecution of such a person or persons would also involve the Rajpramukh such as in the case of an abetment of the offence by him. When an immunity has been conferred on any person it must be so construed as to limit it to the person on whom it is conferred and cannot be extended to others who under the law may be liable.

123. Clause (2) of Article 361 of the Constitution does not confer any immunity for any acts committed in the Raj Bhavan by persons other than the Rajpramukh nor on persons alleged to act under his authority, because every individual in this country is expected to act according to law. When a person is charged with an offence, it is no defence for him to say that what he did was under the authority of the Rajpramukh who is not himself absolutely immune from criminal prosecution for all time, but that immunity is only limited to the duration of his office and he would be liable to prosecution thereafter for any offences alleged to be committed by him personally. The observations of the Supreme Court in — ‘United States v. Lee’, (1883) 106 US 196 (Z11), in this regard bear quotation:

“The defence stands here solely on the absolute immunity from judicial enquiry of every one who asserts authority from the executive branch of the Government, however clear it may be made that the executive possessed no such power. No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the Government from the highest to the lowest are creatures of the law and are bound to obey it.”

124. These observations, with great respect, apply to this country with equal force. Though the laying of an information or the issue of search warrant by a Magistrate before he orders enquiry or investigation may not strictly speaking amount to institution of criminal proceedings, yet the words, ‘whatsoever’ used with the words ‘original proceedings’ an cl. (2) of Article 361, might enlarge the scope of this immunity. But whether this is so or not, it is not necessary for us to decide in the view we have taken of the application of B.G Kesker dated 27-1-54 as being a complaint. This application after giving a reference to Ss. 346 and 370 I.P.C, states that it is an information under Sections 190(1)(c) of the Cr PC. The nature of the document cannot be determined by what the informant chooses to call it but what in fact it is. We give here the sailent portions of the information on which we have formed the aforesaid view:

“That there is a building called Rajbhavan in the Boggulagunta locality of this city under the jurisdiction of this Court.

That Mir Usman Ali Khan the Ex-Ruler of Hyderabad resides in it and has turned it into a veritable hell for the victims of his passions. This Raj Bhavam is used as a cellular jail wherein not less than 300 adult women, 100 adult men and an unknown number of minor boys and girls are detained as slaves, over whom he weilds all power of life and death. These unfortunate souls have no choice of their own, in any matter whatsoever.

The women are those who were either presented to him or abducted or kidnapped or purchased and the progeny of such women. They belonged to different castes, creeds and religions. Now all the non-muslims are forcibly converted to Mohamadanism.”

125. After giving vent to his other views all of which are irrelevant for the purpose of this application he ends up by saying

“I know I am taking risks but I have the satisfaction that I have entrusted the cause of the slaves of King Kothi to this Court for due cognizance.”

126. It will thus be seen that the two things necessary to make this application a complaint are present viz: the allegation that Mir Usman Ali Khan Ex-Ruler of Hyderabad has committed offences under Ss. 346 and 370 I.P.C, by detaining in his residence, the Raj Bhawan which is used as a cellular jail for a number of women, men and children and that some of the women are said to be abducted or kidnapped. There are allegations of commission of an offence by the Rajpramukh and the fact that he asks the Court to take cognizance of it, is clearly done with a view to moving the District Magistrate to take action under the Code of Criminal Procedure against the Rajpramukh.

127. The non-applicant is an advocate and when he asks the Court to take cognizance of an offence he knows the significance of that word and has in so many words said that he was crossing the limits of a strict legal information. The very fact that the Magistrate in his order states, that after receiving a report from the police, he will direct the informant to delete all the irrelevant portions from the application and the fact that the non-applicant was given an opportunity not only to file a counter to the police letter, but also several adjournments were given to enable him to cite rulings and argue the matter, would show that the District Magistrate was treating this petition as a complaint and had applied his mind before passing the order under revision. Be that as it may, in I our view, the application was a complaint and the Magistrate was prohibited from entertaining it.

128. Having carefully considered all the aspects of the matter and the authorities referred to by us, we are clearly of the view that the order of the Magistrate is contrary to the inhibition contained in cl. (2) of Article 361 of the Constitution) and we accordingly allow the revision set aside the order of the District Magistrate and direct that the proceedings before him be concluded.

D.H.Z

129. Revision allowed.