Report No. 69
C. Definitions in other Acts
6.63. Definition in the Code of Criminal Procedure.-
Definitions in other Acts may now be seen. To begin with, we may state that the expression "judicial proceeding" is defined in the Code of Criminal Procedure,1 as "including any proceeding in the course of which evidence is or may be legally taken on oath2."
1. Section 2(j), Code of Criminal Procedure, 1973; section 4(1)(m), Code of Criminal Procedure, 1898.
2. The following sections of the Code use the expression "judicial proceeding";
Section 343(2), Code 1973.
Section 344(1), Code 1973.
Section 345(3), Code 1973.
6.64. History of definition in the Code of Criminal Procedure.-
It may be noted that in the Code of Criminal Procedure of 1872, the expression "judicial proceeding" was defined as "proceeding in the course of which evidence is or may be taken, or in which any judgment, sentence, or final order is passed on recorded evidence."
The Code of Criminal Procedure, 1882, section 4(d), contained the following definition-
"Judicial proceeding" means any proceeding in the course of which evidence is or may be take.
6.65. The words "proceedings in which evidence is or may be taken" (in this definition in the Code of 1882), were interpreted1 to mean a proceeding in which evidence is or may be legally taken. The Code of 1898 added the word 'legally' apparently to implement this interpretation. The requirement of "oath" was also added in the definition in 1898, and the latter limb of the definition (in relation to judgment etc.) was removed.
In one of the Allahabad casesl, decided with reference to the old Criminal Procedure Code, 1872, it was held that where, after an appeal is preferred to the High Court against the judgment of acquittal of the Court of Session, the persons acquitted are arrested by the police and brought before the Magistrate, and the Magistrate illegally directs that they should be detained in custody pending decision of the appeal, the High Court could not interfere in revision under section 297 of the old Code (under which the court could interfere in a proceeding if there was a material error in any "judicial" proceeding of a subordinate court).
1. Queen v. Cholam Ismmail, 1875 ILR 1 All 1 (6) (Turner, C.J.).
6.66. Whether the definition could include statements recorded by magistrate.-
With reference to the Indian Penal Code, the question whether the expression "judicial proceeding" includes, for the purposes of sections 191 to 193(1) of that Code, (punishment for giving or fabricating false evidence in a judicial proceeding), a statement recorded by a Magistrate in the course of investigation, has given rise to difficulty, as appears from decisions under the Penal Code. The view taken by the Madras High Court1 is that such proceedings are judicial proceedings for the purposes of section 193, Indian Penal Code2.
One of the Madras3 cases stresses two points, viz., (i) the Magistrate is empowered by law to administer oath, and (ii) the statement is one which the law (section 164) permits to be made before the Court by a "witness" and is, therefore, "evidence" within the definition in the Evidence Act. The later Madras case4 stresses a further point, namely, that the Magistrate is acting in the discharge of a duty imposed upon him by law. The High Court also observed, that an investigation is a "stage of a judicial proceeding".
1. See-(a) 28th Report of the Law Commission (Oaths Act).
(b) 37th Report of the Law Commission (sections 1 to 176) (Criminal Procedure Code), para. 466.
(c) 41st Report of the Law Commission (Criminal Procedure Code), Vol. I.
2. Maromma v. Emp., AIR 1933 Mad 125, following Queen-Empress v. Alagu, ILR 16 Mad 421, and Suppa v. Emp., ILR 29 Mad 89.
3. Q.E. v. Alagu, ILR 16 Mad 421.
4. Suppa v. Emp., ILR 29 Mad 89.
6.67. The Allahabad High Court1 once took the view that if the Magistrate who recorded the statement has himself authority to complete the trial, the statement becomes a judicial proceeding, for the purposes of the Penal Code. But, in a later case,2 it took a different view with respect to section 80, Evidence Act. A decision of the Bombay High Court3, in a matter which also arose under section 193 of the Indian Penal Code, may be noted. The question at issue was, whether a statement recorded by a Magistrate in the course of a police investigation was "evidence in a stage of judicial proceeding" within section 193 of the Indian Penal Code. The High Court held that such a statement cannot be saw to be made in the course of a "judicial proceeding", for the reason that the statement is recorded during a police investigation, and a police investigation cannot be a stage of a judicial proceeding.
In the course of the discussion, the High Court observed that though a Magistrate examining a witness during investigation does so on oath, the definition of "judicial proceeding" in the Criminal Procedure Code is "limited to that Code and does not apply to that phrase as used in the Indian Penal Code. The Lahore High Court4, following the Bombay decision summarised above, held that such a statement is not "evidence" in a stage of judicial proceeding within the meaning of the Explanation to section 193, Indian Penal Code. The Court saw no reason to dissent from the Bombay decision.
1. Q.E. v. Khem, 1900 ILR 22 All 115 (117).
2. Sheo Raj v. State, AIR 1964 All 290 (FB) holding that such statements are not judicial proceedings, and section 80, Evidence Act does not apply to them.
3. Purshottom Ishwar Amin v. Emp., AIR 1921 Born 3: ILR 45 Born 834 (FB).
4. Mohammad v. Emperor, AIR 1932 Lah 254(1) (Dalip Singh, J.).
6.68. Thus, though controversy often arises whether a particular proceeding is or is not a judicial proceeding for the purposes of the Penal Code, Courts have refrained from attempting a definition, choosing to decide each case on a consideration of the nature of the proceedings, the body before which they were held, the parent legislative provision and other relevant circumstances. The expression occurs also in section 228 of the Penal Code1 (Intentional insult to a public servant sitting in a stage of judicial proceeding).
1. The enumeration is not exhaustive.
6.69. No definition in the Code of Civil Procedure.-
There is no definition of the expression "judicial proceeding" in the Code of Civil Procedure, 1908. In fact, the expression itself does not occur at many places in that Code. In one Bombay case,1 the question arose whether an order under section 244 of the old Code of Civil Procedure (corresponding to section 47 of the existing Code), was passed in a judicial proceeding so as to entitle a party to an appeal (since an appeal lay from all "decrees"). The definition of "decree" in the old Code was as follows: "Decree" means the formal order of the court in which the result of the decision of the suit or other judicial proceeding is embodied.
The Court did not follow the definition of "judicial proceeding" given in the Code of Criminal Procedure then in force, on the reasoning that in the definition of the term "decree" in the Code of Civil Procedure, the expression "suit or other judicial proceeding" must, according to a common rule of construction, be understood as meaning a suit or other judicial proceeding of the same nature as a suit. Moreover, "decree" is limited to a formal order, i.e., cases where a decision is recorded in a particular formal manner.
1. Dalpat &int v. Amarsing, ILR 2 Born 553 (556).
6.70. Confessions recorded in executive capacity.-
It has been held1 in Madras that if a confessional statement of a person is recorded by a Magistrate in an executive capacity, it is not receivable in evidence under section 80 of the Evidence Act, the document not having been taken in accordance with law.
1. Queen Empress v. Biran, 1886 ILR 9. Mad 224.