Report No. 69
VI. Judicial Power or Being Part of the Judiciary
6.13. Section 195, Code of Criminal Procedur.- Judicial power and being a part of the judiciary.-
Section 195 of the Code of Criminal Procedure (so far as is material)1, enacts that certain offences against public justice, which are alleged to have been committed in or in relation to any proceeding in any "court", cannot be taken cognizance of except on the complaint in writing of the court or some other court to which it is subordinate. But section 195(2) in the Code of 1898 enacted that the term "court", for the purposes of that section, includes a civil revenue or criminal court, but does not include a Registrar or Sub-Registrar under the Registration Act.
Because of this wording of the old Code, controversy used to arise whether a particular tribunal or officer was or was not a court within the meaning of section 195. Since the expression "court" is a generic expression, this controversy was unavoidable, as also because of the inclusive nature of the definition in the old Code. Some of the High Courts adopted the test of performance of quasi-judicial functions and duty to act fairly and impartially. Some of them went further, and required power to regulate legal rights by the delivery of definitive judgments and a power to enforce its orders by legal sanction, coupled with a procedure judicial in character2.
The test approved by the Supreme Court in 1963 with reference3 to section 195, in a case which related to a sales tax officer under the U.P. Sales Tax Act, was different. The Supreme Court held that a sales tax officer was not regarded as a court for the purpose of section 195 of the Code of Criminal Procedure. In the view of the Supreme Court, though the Sales tax officer was required to perform some quasi-judicial functions and to act fairly and impartially, he was not a part of the judiciary4; he was merely an instrumentality of the State for the purposes of assessment and collection of tax. The nature of his functions and the manner prescribed for the purpose showed that he could not be equated with a court.
1. Nand Lal v. Khetra Mohan, 1918 ILR 45 Cal 585.
2. Y. Mahabateswarppa v. Gopalswamy Mudaliar, AIR 1935 Mad 673: 69 Mad q 589.
3. Jagan Nath Parshad v. State of Uttar Pradesh, (1963) 2 SCR 850.
4. Emphasis supplied.
6.14. As regards income-tax officers, the same question arose, but the question was not decided by the Supreme Court, in the case of Lalji Haridas1.
A person to whom the judicial power is not entrusted and who is merely an arbitrator authorised within the limits of the power conferred to adjudicate upon the dispute before him, would not be a court7 within section 195 of the Code of Criminal Procedure.
1. Lalji Haridas v. State of Maharashtra, (1964) 6 SCR 700. 7 Rama Rao v. Narain, (1969) 1 SCJ 945 (954).
6.15. The Supreme Court has also pointed out, in a case decided under the Code of Criminal Procedure1 of 1898 that the true test for finding out whether a tribunal is a court is whether it has judicial power, that is, as was observed in the case of Shell Co. of Australia2 the exercise of judicial power does not begin until some tribunal, which has power to give a binding and authoritative decision, is called upon to take action.
As we have noted, the meaning of the expression "Court" for the purposes of section 195 of the Code of Criminal Procedure, 1898, (complaint regarding offences against public justice committed in relation to proceedings in a court), created considerable uncertainty, and in view of the obscurity that was felt in this regard, the new Code of Criminal Procedure has the following definition of court in the corresponding provision3: "Court" 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 section4.
1. Rama Rao v. Narain, (1969) 1 SCJ 945 (953), (reviews cases under section 195, Code of Criminal Procedure, 1898).
2. Shell Co. of Australia v. Federal Commissioner of Taxation, 1931 AC 275 (PC).
3. Para. 6.13, supra.
4. Section 195(3), Cr. P.C., 1973.