Judgment:
ORDER
Dibyendu Bhusan Dutta, J.
1. Dalhousie Institute is a registered society under Societies Registration Act, 1960 having its registered office and club house at 42, Jhowtala Road within Police Station Karaya, Calcutta. The institute is established to promote literary and scientific improvements of its members by means of lecutures, library reading room and such other resources as may from time to time, devised and various other activities. Under the rules and by laws of the Institute, the Annual General Meeting is held each year not later than 15th July as may be fixed by the Council of the Institute. The Council fixed 27th Oct. 1981 for holding the Annual General Meeting. Only permanent members and life, members are entitled to be present at the Annual General Meeting of the Institute and vote.
2. The Dalhousie Institute, represented by its Honorary Secretary, Mr. Robin Roychowdhury, filed an application under Section 144, Cr.P.C. in the First Court of Executive Magistrate at Alipore praying for drawing up of a proceeding under Section 144(2), Cr.P.C. against one Roy George Monthosh and Charles Montosh on the allegations which may, in substance, be stated as follows. The said Mr. George Montosh and Charles Montosh are associate members of the Institute and are not entitled to be present in the Annual General Meeting and to vote. For some time past, they along with their family members and associates have been indulging in illegal acts and creating various sorts of unlawful distubrances so that the management would not be able to hold the Annual General Meeting of the Institute, on the scheduled date. They have been threatening the management with dire consequences in case the management holds the Annual General Meeting on the Scheduled date. By a letter dated 24th Oct. 1991, the Institute reported the matter to the local police station. By such wrongful acts they are likely to cause obstruction, annoyance, injury or danger to human life, health or safety or disturbance of the public tranquillity or a riot or an affray. The situation has become so grave and tense that speedy remedy is desirable.
3. On such allegations, the institute prayed before the Executive Magistrate for a direction under Section 144(2), Cr.P.C. upon the said two opposite parties to abstain from indulging in acts of violence, illegal acts and unlawful disturbances at the time of holding of the Annual General Meeting of the Institute on the scheduled date and also from restraining permanent life members from attending Annual General Meeting and also for a direction upon the O.C. of the local police station to render police assistance by posting police pickets and also to see on obstruction is caused in holding of the Annual General Meeting on the Scheduled date at the scheduled place.
4. This application under Section 144 was registered as M.P. Case No. 2384 of 1991 and the learned Executive Magistrate by order dated 25-10-1991, on being satisfied as to the likelihood of breach of peace directed the O.C. Karaya Police Station to see that no breach of the peace takes place and also to see that the opposite parties and their men and associates may not illegally cause any disturbances at the time of holding of the Annual General Meeting of the Institute at the scheduled premises and also to post police pickets at the cost of the institute for maintaining peace at the locality. The learned Magistrate also directed the O.C. to inquire and to submit report by 4-12-1991 and also ordered issuance of notice upon the opposite parties for their appearance and filing show cause on 4-12-1991.
5. One of the two opposite parties of M.P. Case No. 2384 of 1991 lodged a complaint on 3rd Sept. 1992 in the Court of Chief Judicial Magistrate at Alipore against Mr. Robin Roychoudhury who filed the application under Section 144 as Honorary Secretary of the Dalhousie Institute and also against two others on the following allegations. The complainant and his wife were members of the Dalhousie Institute. The accused were office bearers of the Institute.; For the past few years, the complainant had been highlighting and protesting against the corrupt practices and mismanagement of the club by the accused and their associates. The accused and the-their cronies hatched a plot to expel this complainant and his wife from the said club in order to hide their misdeeds. Accordingly, the accused No. 1 (Robin Roy Chowdhury), aided, abetted and instigated by the other two accused persons and their associates, filed the petition under Section 144, Cr.P.C. being M.P. Case No. 2384 of 1991 on false and malicious allegations to the effect that on or about 25-10-1991, the complainant and his wife have been creating various sorts of unlawful disturbances and indulging in various acts of violance amounting to cognizable offences and the complainant and his wife were going to disturb the holding of the Annual General Meeting of the club on 27-10-1991, knowing fully well that at the material point of time, this complainant and his wife were out of the country, visiting Thailand and Australia between 10-10-1991 and 4-11 -1991, a fact which is also borne out from their passport entries. On the basis of such false, malicious and motivated allegations, the accused obtained an ex parte order under Section 144(2), Cr.P.C. on 25-10-1991 against this complainant and his wife amongst others and on the following day, expelled the complainant and his wife from the club illegally. On 9-12-1991, the petition under Section 144, Cr.P.C. came up for hearing before the learned Magistrate who dropped the matter after observing that the situation was peaceful. The accused persons are thus guilty of offences punishable under Sections 211 and 109 of the Indian Penal Code.
6. The above complaint was registered as Case No. 1001 of 1992 and the learned Chief Judicial Magistrate took cognizance upon that complaint on 3-9-1992 and after examination of the complainant under Section 200, Cr.P.C. and upon consideration of some documents filed by the complainant including the passport and visa, was satisfied that a prima facie case under Sections 211/109, IPC was made out against each of the three accused persons and accordingly by order No. 2 dated 4-9-1992 issued process against the accused.
7. Being aggrieved by the ld. Magistrate submitted orders whereby he took cognizance and issued process, the accused petitioners have preferred the present revisional application under Section 401 read with Section 482 Cr.P.C., praying for quashing of the complaint case.
8. Mr. Sekhar Basu, appearing for the petitioners, urged only three points in challenging the legality of the impugned orders. First, it was Urged that the offence complained of being one punishable under Section 211 IPC and is alleged to have been committed in relation to the proceeding under Section 144 Cr.P.C. being M.P. Case No. 2384 of 1991 before the ld. Executive Magistrate, the cognizance was barred under the provisions of Sub-clause (i) of Clause (b) of sub section (1) of Section 195 of Cr.P.C., by reason of the fact that the complaint on which the cognizance was taken by the ld. Chief Judicial Magistrate was not made by the ld. Executive Magistrate or by someone to whom he was subordinate.
Mr. Basu alternatively urged two other points. It was urged that even if the cognizance was not hit by the mischief of Section 195(1)(b)(i) as contended by him, the cognizance would be liable to be quashed as against the accused petitioners Nos. 2 and 3 inasmuch as the petition under Section 144 Cr.P.C. which allegedly contained the false and malicious allegations so as to constitute the offence under Section 211 IPC was filed by the accused petitioner No. 1 alone. It is further urged that the order of issuance of process that was passed by the ld. Magistrate would also be liable to be quashed as against the accused petitioners Nos. 2 and 3 inasmuch as the initial deposition of the only witness namely the complainant recorded under Section 200 Cr.P.C. does not make out any prima facie case for issuance of process as against them.
9. Mr. S. P. Talukdar, appearing for the complainant opposite party No. 2, sought, however, to refute only the first point that was made on behalf of the petitioners. Mr. Talukdar contended that the bar under Section 195(1)(b)(i) of Cr.P.C. would apply only when the offence concerned is alleged to have been committed in or in relation to any proceeding in any court, or, in other words, a written complaint by the court would be necessary only when the offence is alleged to have been committed in or in relation to any proceeding in any court and not otherwise.
It was urged by Mr. Talukdar that the proceeding under Section 144 Cr.P.C., in or in relation to which the offence in question is alleged to have been committed, was not a proceeding in any court within the meaning of Section 195(1)(b)(i) and as such, there was no illegality committed by the ld. Chief Judicial Magistrate when he took cognizance upon the complaint lodged by one of the persons aggrieved.
10. At the outset, I would like to deal with the last two points that were urged by Mr. Basu.
He prayed for quashing of the cognizance taken against the accused petitioners Nos. 2 and 3 only on the ground that the allegations Which are said to constitute the offence under Section 211 IPC were all made by the accused petitioner No. 1 alone in the petition that was filed under Section 144 Cr.P.C. on behalf of the Dalhousie Institute. In the petition of complaint, there is allegation to the effect that the petitioners Nos. 2 and 3 are also office bearers of the Dalhousie Institute and that the complainant had been highlighting and protesting against the wrong and corrupt practices and mismanagement of the club by the accused persons. There is also the allegation in paragraph 5 that all the accused persons hatched a plot to expel the complainant and his wife from the club in order to hide their misdeeds and in paragraph 6, it has been categorically alleged that in order to justify their illegal action in expelling the complainant and the wife from the club, the accused No. 1 filed the petition under Section 144 Cr.P.C. containing the alleged false and malicious allegations, on being aided, abetted and instigated by the other two accused persons. It is further alleged in paragraph 8 that after the ex parte order was obtained on 25-10-91, on the very next day the accused persons expelled the complainant and his wife from the club illegally. In paragraph 9, it is also alleged that all the accused persons distributed the photo copies of the petition under Section 144 as well as the ex parte order under Section 144(2) amongst club members and others with the malicious intention of lowering the image of the complainant and his wife in the eyes of the public. On a perusal of the petition of complaint as a whole, I must say that it does contain allegations which are sufficient to make out a prima facie case under Section 211 read with 109 IPC to be taken cognizance of as against the petitioners Nos. 2 and 3 and as such, it is not understood how the taking of cognizance against the petitioners Nos. 2 and 3 on the basis of such a complaint can be faulted.
Coming to the question of legality of the issuance of process against the accused petitioners Nos. 2 and 3 as raised by Mr. Basu, it must be said that the process was issued by the ld. Magistrate not only on the basis of the complaint, but also on the strength of initial deposition of the complainant under Section 200 Cr.P.C. as well as some documents that were filed on behalf of the complainant before the Magistrate. On perusal of the certified copy of the initial deposition recorded under Section 200 Cr.P.C. which forms part of the revisional application, I find that the complainant wanted to say in his deposition as if all the three accused petitioners filed the application under Section 144 before the Executive Magistrate, but the fact remains that the application was made by the accused petitioner No. 1 and not by the other two. The complainant did not depose to the effect that the application under Section 144 was filed by the accused petitioner No. 1 on being aided, abetted and instigated by other accused persons as stated in the petition of complaint. In other words, the case sought to be made out against the petitioners Nos. 2 and 3 in the petition of complaint remains unsubstantiated by the initial deposition of the complainant. Besides the complainant, no other witness was examined under Section 200 Cr.P.C. and it is not the case of the complainant that the case against the accused petitioners Nos. 2 and 3 was made out by the documents filed on behalf of the complainant before the ld. Chief Judicial Magistrate.
In the circumstances, it cannot be said that the ld. Magistrate was justified in issuing the processes against the accused petitioners Nos. 2 and 3. Thus, exception can be taken to only the issuance of process and not the taking of cognizance as against the petitioners Nos. 2 and 3.
11. Thus, the only point that awaits my determination now is whether the proceeding under Section 144 Cr.P.C. before the ld. Executive Magistrate, in or in relation to which the offence concerned is alleged to have been committed, can be said to be a proceeding in a court within the meaning of Section 195(1)(b)(i) of Cr.P.C.
12. The term 'proceeding' has not been defined, in the Code of Criminal Procedure. Section 2(i) defines what is a 'judicial proceeding'. The definition is clearly not exhaustive and is evidently meant for this code. 'Judicial proceeding', according to Section 2(i), includes any proceeding in the course of which evidence is or may be taken on oath. The term used in Section 195(1)(b)(i) is 'proceeding' and not 'judicial proceeding'. The term 'proceeding' is obviously a wider term and Section 195(1)(b)(i) does not require the proceeding to be only a judicial proceeding. The proceeding may be any proceeding in any court and certainly there is no scope to argue that the proceeding under section 144 Cr.P.C. is not even a 'proceeding' within the meaning of Section 195(1)(b)(i).
13. The question is whether this proceeding can be said to be a proceeding in a court.
14. Mr. Sekhar Basu invited my attention to the provisions of Sections 6, 195(3), Explanation to Sub-section (1) of Section 397, Section 405 and Clause (j) of Section 461 of the Code of Criminal Procedure in support of his contention that the Executive Magistrate exercising powers under Section 144 Cr.P.C. is a court within the meaning of Section 195(1)(b)(i).
15. The heading of Section 6 is entitled 'classes of criminal courts'. Besides the High Court and the courts constituted under any law other than this Code, it described four other classes of 'Criminal Courts' in every State and specifies them in clauses (i), (ii), (iii) and (iv). Under Clause (iv), Section 6 categorically recognizes the Executive Magistrate as one of the classes of criminal courts declared by the Code.
16. Section 195(3) of the Code enacts that the term 'court' in Clause (b) of Sub-section (1), means a civil, revenue or Criminal Court, and includes a tribunal constituted by or under a central, provincial or State Act, if declared by that Act to be a court for the purposes of this section. Since the Executive Magistrate is a 'criminal court' within the meaning of Section 6 of the Code, he would automatically come within the purview of the term 'court' within the meaning of Section 195(3).
17. Section 397(1) empowers the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding or order recorded or passed, and as to the regularity of any proceeding before any such inferior court and according to Explanation to Sub-section (1) of Section 397, an Executive Magistrate Exercising original or appellate jurisdiction shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section. In other words, an Executive Magistrate is an inferior criminal court and a proceeding under Section 144 is amenable to the revisional jurisdiction of both the High Court and Sessions Judge under Section 397.
18. Section 405 provides that when a case is revised under Chapter 30 by the High Court or Sessions Judge, it or he shall, in the manner provided by Section 388, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified; and if necessary, the record shall be amended in accordance therewith. Section 405 thus shows that the Executive Magistrate is a court within the meaning of this section.
19. According to Clause (j) of Section 461, if any Magistrate, not being empowered by law in this behalf, makes an order under Part C of Chapter 10, he commits an irregularity which vitiates the proceeding. Section 144 falls within part C of Chapter 10 of the Code and the power under Section 144 is exercisable only by an Executive Magistrate. Mr. Basu contends that this clause indicates that an Executive Magistrate acting under Section 144 is a court.
20. Mr. Talukdar, on the other hand, relies on a Supreme Court decision in the case of Gulam Abbas v. State of U.P. reported in : 1981CriLJ1835 in support of his contention that the Executive Magistrate acting under Section 144 does not act as a court.
21. In the reported case, the question arose for consideration of a three judge bench of the Apex Court as to whether an order made under Section 144 is judicial or quasi-judicial order or whether it is passed in exercise of an executive power in performance of executive function amenable to the writ jurisdiction of the Supreme Court under Article 32 of the Constitution because it was already settled law that a judicial or quasi-judicial order will not attract writ jurisdiction of the Supreme Court under Article 32 since such an order cannot affect or infringe any fundamental right. In dealing with this question, the Supreme Court had occasions to examine the decisions that were pronounced prior to the enactment of the new Code of Criminal Procedure and held that the question whether an order under Section 144 is a judicial order or an order in exercise of the executive power in performance of an executive function will have to be decided by reference to the new Criminal Procedure Code, 1973 and not by reference to the old Criminal Procedure Code, 1898. The Supreme Court pointed out that the position under the old Code, wherein separation between the judicial functions and executive or administrative functions of Magistrate did not obtain, was quite different and that it was in those circumstances that the view prevailed in the decisions of several High Courts that the order passed by a Magistrate under that code was a judicial order. The Supreme Court also pointed out that all the decisions including those of the Supreme Court that which could be relied on in support of the contention that the order passed by a Magistrate under Section 144 is a judicial order are in relation to Section 144 as it stood under the old Code while the position under the new Code was entirely different wherein the scheme of separation of judicial functions from executive functions of the Magistrate as recommended by the Law Commission has been inplemented to a great extent. The Supreme Court took note of the provisions of Section 6 of the new Code wherein the Executive Magistrate constitutes one of the classes of criminal courts. It also took note of the fact that an order made by the Executive Magistrate is revisable under Section 397 of the Code because under the Explanation to that section, all Magistrates, whether Executive of judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior criminal court for the purpose of revisional powers of the Court of Session. According to the Supreme Court, the fact that the parties and, particularly the aggrieved party, are heard before such an order under Section 144 is made merely ensures fair play and observance of audi alteram partem rule which are regarded as essential in the performance of any executive or administrative function and the further fact that a revision lies against the order of the executive magistrate either to the Sessions Court or to the High Court removes the vice of arbitrariness; But the Supreme Court was of the view that these aspects cannot make the order under Section 144 a judicial or quasi-judicial order and that such an order issued under Section 144 of the new Code will have to be regarded as an executive order passed in performance of essentially an executive function where no lis as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such, it will be amenable to its writ jurisdiction under Article 32 of the Constitution.
22. Thus, on an analysis of this decision of the Supreme Court in Gulam Abbas (supra), this much can be safely said that this decision is an authority for the proposition that an order under Section 144 of the present Code is not judicial or quasi-judicial order and the function thereunder is essentially an executive function amenable to the writ jurisdiction of the Supreme Court under Article 32 of the Constitution. But this decision cannot, however, be pressed into service as an authority also for the proposition that an executive magistrate exercising his powers under Section 144 of the Code is not a 'court' within the meaning of Section 195(1)(b)(i) of the Code.
In this connection, it would be worthwhile to refer to certain observations of another subsequent three Judge Bench of the Supreme Court appearing at paragraph 15 of its judgment reported in : 1983CriLJ1872 (Acharya Jagdishwaran v. Commissioner of Police, Calcutta), to which my attention was drawn by Mr. Sekhar Basu. The relevant observations are as follows :- 'Certain observations is Gulam Abbas's decision regarding the nature of the order under Section 144 of the Code -judicial or executive - to the extent they run counter to the decision of the Constitution Bench is Babulal Parate's case, may require reconsideration....
23. The term 'court' is not defined anywhere in the new Code of Criminal Procedure. Originally, the term 'court' was understood as a place where justice is judicially administered and it has since acquired the meaning so as to include a person or persons who administer justice.
24. The term 'criminal court' was, however, defined in Section 11 of the Code of Criminal, Procedure, 1861 and also in Section 4 of the Code of 1872 but the previous Code of 1898 omitted the definition. The old Codes of 1882 and 1898 also did not define the term 'court'. They only used the terms 'court' and 'Magistrate' generally, and if not always, as convertible terms.
25. What Section 6 of the new Code does is not to define the term 'court' or 'criminal court'. It only categorically declares and recognizes 'Executive Magistrate' as one of the classes of 'criminal courts'.
26. Section 2(y) of the new Code adopts the meanings of words and expressions assigned to them in the Indian Penal Code in case they are used but not defined in this Code and defined in the Penal Code. Indian Penal Code defines the terms 'Judge' and 'Court of Justice' in Sections 19 and 20 respectively.
Section 19 of the Indian Penal Code reads :
The word 'Judge' denotes not only every person who is officially designated as an Judge, but also every person, who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.
Section 19 contains some illustrations which show that a person other than one who is officially designated as a 'Judge' and who is empowered to give a definitive judgment is a Judge only when he is exercising jurisdiction in a suit or in a proceeding. The right to pronounce a definitive judgment is considered sine qua non of the term 'Judge'.
The words 'Court of Justice', on the other hand, according to Section 20 of the IPC, denote a Judge who is empowered by law, to act judicially alone, or a body of Judges which is empowered by law to act judicially as a body, when such Judge or body of Judges is acting judicially.
The IPC has defined the terms 'Judge' and 'Court of Justice' but not the term 'Court'. Thus, strictly speaking, the definitions of the term 'Judge' and 'Court of Justice' in IPC do not apply to the expression 'Court' as used in the Cr.P.C. Obviously the term 'Court' is wider than the term 'Court of Justice' as used in Section 20 of the IPC.
27. We get the definition of the term 'Court' in Section 3 of the Indian Evidence Act. It includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. This is perhaps, the only Indian Statute in which the expression 'Court' is defined. But this definition is by no means exhaustive and is framed for the purpose of the Act itself and should, not, however, be extended beyond its legitimate scope.
28. Now, what authorities can be said to constitute courts had been frequently raised before the Supreme Court and formed the subject matter of several of its decisions. In the case of Ramrao v. Narayan reported in : 1969CriLJ1064 , the Supreme Court was considering the question whether the Registrar's nominee under Maharashtra Co-operative Societies Act is a Court within the meaning of Section 195 of the old Code and answered that question in the negative. In that decision the Supreme Court surveyed many of its earlier decisions and held that a person or body would constitute a court only when it is entrusted with the judicial power of a State.
29. According to the Supreme Court in Vrinder Kumar, : 1956CriLJ326 what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide dispute in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law.
30. The trend of decisions of the Apex Court suggests that the pronouncement of a definitive judgment is considered the essential sine qua non of a Court and unless and until a binding and authoritative judgment can be pronounced by a person or body of persons, it cannot be predicated that he or they constitute a Court in the strict sense of the term.
31. Now, under Sub-section (2) of Section 144, the Executive Magistrate can pass an ex parte order only in case of emergency or in case where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed. But the function of the Executive Magistrate does not cease with the ex parte order. Under Sub-sections (5) and (7), it is his duty to investigate into the respective claims of the parties and alter or rescind the order already passed so as to give protection for the exercise of rights possessed by any person and for that purpose to take action against others likely to interfere with the exercise of such rights. In view of the nature of the provisions of Section 144(2) enacted in the context of an overriding emergency, there is no contravention of principles of natural justice in passing an order ex parte, and the party aggrieved by the ex parte order can approach the Executive Magistrate by filing an application under Section 144(5) and where an application under Sub-section (5) is received the Magistrate under Sub-section (7) is to afford to the applicant opportunity of appearing and showing cause against the order and if the applicant offers evidence to show cause against the continuance of the ex parte order it will be his obvious duty to hold an inquiry and without holding that inquiry he cannot anticipate what the nature of the evidence would be and confirm his ex parte order. If he rejects the application wholly or in part, he shall have to record in writing the reasons for so doing. Taking of evidence by the Executive Magistrate in a proceeding under Section 144 cannot thus be ruled out altogether.
32. It is true that, according to the decision in Gulam Abbas's case reported in : 1981CriLJ1835 an order under Section 144, Cr.P.C. cannot be said to be a judicial or a quasi-judicial order and can also be said to be an order passed in exercise of the executive function of the Magistrate so as to be amenable to the writ jurisdiction under Article 32 of the Constitution for enforcement of fundamental rights. It is also true that an order under Section 144 is not intended to be permanent or semi-permanent in character. But it does not necessarily lead to the conclusion that the Executive Magistrate cannot be a criminal Court in relation to a proceeding under Section 144 even for the limited purpose and within the meaning of Section 195(1)(b)(i) of the Code of Criminal Procedure.
33. By Section 195 of the Code, it is enacted that (i) certain offences amounting to contempt of lawful authority of public servants that is offences falling under Sections 172 to 188, IPC, (ii) offences against public justice under Sections 193 to 196, 196, 199, 200, 205, 211 and 228 of IPC when such offences alleged to have been committed, in or in relation to any proceeding in any Court and (iii) offences relating to documents given in evidence such as those described in Section 463 or punishable under Section 471, 475 or 476 of IPC when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, cannot be taken cognizance of by any Court, except, in the first class of cases, on a complaint in writing of the public servant concerned, and in the second and third classes of cases, on the complaint in writing of such Court or some other Court to which it is subordinate. This section provides an exception to the general rule that any person can set the criminal law in motion.
34. The object of Section 195 is to protect persons from being needlessly harassed by rash, indiscriminate, baseless or vexatious prosecutions instituted on flimsy and insufficient grounds at the instance of private individuals actuated by malice or ill-will for the specified offences relating to administration of justice and contempt of lawful authority.
35. The provisions of Section 195 are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is complaint in writing by the public servant concerned or by the Court, as the case may be.
36. The complainant opposite party's case is that the concerned Executive Magistrate was induced by the accused petitioners, by their false and malicious allegations to pass an ex parte order under Section 144(2) against the complainant opposite party. In other words, it was only because of the alleged false and malicious allegations against the complainant opposite party No. 2 that the Executive Magistrate had exercised his jurisdiction under Sub-section (2) of Section 144.
37. It is true that an Executive Magistrate exercising jurisdiction under Section 144, Cr.P.C. may not satisfy all the tests or fulfil all the criteria which are accepted by the Supreme Court as such for determining whether he is a court or not and in that sense the executive Magistrate may not be termed as a Court in the strict sense of the term. But then, there is nothing in the Code itself to warrant! conclusion that he cannot be a Court within the meaning of Section 195(1)(b)(i) of the Code.
38. The Executive Magistrate is a public servant within the meaning of Section 21 of IPC and for disobedience of an order under Section 144(2), Cr.P.C. amounting to an offence punishable under Section 188, IPC no prosecution would lie under Section 195(1)(a)(i) except on a complaint of the Executive Magistrate concerned. If for the prosecution of an offence under Section 188, IPC for disobedience of his order under Section 144, Cr.P.C. a complaint by the concerned Executive Magistrate could be necessary under Section 195(1)(a)(i), there could be no sufficient reason for dispensing with the necessity for a complaint by him for prosecution of an offence under Section 211, IPC committed in relation to a proceeding before him under Section 144, Cr.P.C.
39. At the risk of repetition, it must be said that unlike the previous Code of 1898, Section 6 of the present Code has expressly recognised the Executive Magistrate as a criminal Court.
He is to be deemed to be an inferior criminal court within the meaning of Section 397, Cr.P.C. and amenable to the revisional jurisdiction of both the High Court and the Sessions Judge.
Section 195 itself in Sub-section (3) defines the term 'Court' appearing in Clause (b) of Sub-section (1) so as to mean a criminal Court, and in view of this definition of 'Court' in Sub-section (3), the scope of what is or what is not a 'Court' for the purpose of Sub-section (1)(b) has been much narrowed down for the simple reason that it then means only a civil, criminal or revenue court properly so called and includes another category namely, a tribunal constituted by an Act if declared by that Act to be a Court for the purpose of this section and the Executive Magistrate is a criminal Court expressly constituted by Section 6 of the Code of Criminal Procedure.
Then again, Section 340 of the Code is to be read with Section 195(1)(b). Section 195(1)(b) forbids cognizance by any Court of an offence specified therein except upon a complaint by the Court concerned while Section 340 prescribes the procedure for making a complaint in respect of an offence specified in Clause (b) of Sub-section (1) of Section 195 and for removing the bar. It is also to be noted that in Sub-section (4) of Section 340, the term 'Court' has been assigned the Same meaning as in Section 195.
40. Thus, upon a careful and anxious consideration of the point at issue from all possible angles, I feel inclied to hold that the Executive Magistrate exercising jurisdiction under Section 144, Cr.P.C. can be designated as a 'Court' at least for the limited purpose and within the meaning of Section 195(1)(b)(i).
41. In this view of the matter, it would necessarily follow that the cognizance that was taken in the instant case was illegal and without jurisdiction being hit by the mischief of Section 195(1)(b)(i). hat being so, the magisterial orders whereby not only cognizance was taken but also processes were issued are liable to be set aside.
42. In the result, the revisional application succeeds and is hereby allowed. The impugned criminal proceeding is hereby quashed.