A. P. SRIVASTAVA, J.

( 1 ) THIS is a reference made by the Sessions Judge of Kanpur. Shiv Bilas was the owner of a cyele. He sold it first to Chandramaul and then sold it again to Babu Ram. He executed, a receipt first in favour of Chandramaul and then executed another receipt in favour of Babu Ram, in respect of the same cycle. Armed with his re-ceipt Babu Ram made a report to the police that his cycle had been stolen away. The cycle was recovered from the possession of Chandramaul. During investigation chandramaul satisfied the police that he had purchased the cycle from Shiv Bilas and that there was no question of his stealing it. The police therefore submitted a final report. On the basis of what had! been disclosed during investigation the police submitted a charge-sheet against Shiv bilas and Babit Ram under Sections 426 and 468, read with Section 109,. P. C. The Magistrate, found that though no case had been made out under Sections 426 and 468, read with Section 109,. P. C. Shiv Bilas could be charged under Section 193,. P. C. , and Babu Ham could be charged under Section 196,. P. C. He therefore framed charges against these persons under these sections. They went up in revision to the Sessions Judge and contended that cognizance of the offences under Sections 193 and 196 could have been taken only if a complaint had been filed by the court concerned and the learned Magistrate had therefore no jurisdiction to frame a charge against the accused persons under those sections. They relied in support of this contention on Section 195 (1) (b) of the Code of Criminal procedure. The learned Sessions Judge accepted this contention and has made a recommendation that the charges against the two accused persons under Sections 193 and 196,. P. C. must be quashed. He has relied on three cases in support of the view he has taken. They are, Ghulam rasul v. Emperor, 37 Cri LJ 426 : (AIR 1936 Lah 238) (A), (Lahore High Court); J. D. Boywalla v. Sorab Rustomji Engineer, 42 Cri LJ 814 : (AIR 1941 Bom 294) (B), (Bombay High Court) and Ranbir Singh Jain v. State, 1956 All Cri Rep. 115 (C ).

( 2 ) I have heard learned counsel who has appeared to support the reference and also the learned counsel for the state and am of opinion that the reference cannot be accepted. From the facts mentioned above which have also been narrated by the Sessions Judge in his order of reference it is clear that the offences punishable under Sections 193 and 196,. P. C. , which had been committed by Shiv Bilas and Babu Ram had been committed during the investigation stage before a final report was submitted by the police under Section 169 of the Code of Criminal procedure. At that time no proceedings were pending in any court. The proceedings in court would have started if instead of submitting a final report under Section 169,. P. C. , the police had submitted a re port under Section 173 praying that cognizance be taken. In a case like the present, proceedings in court start only after cognizance has been taken in one of the ways mentioned in Section 190, Cr. P. C. A final report under Section 169 is certainly submitted to a Magistrate for approval, but the Magistrate at that stage is not functioning as a court hut is functioning only as a Magistrate.

( 3 ) THE question therefore is whether if an offence punishable under Sections 193 and 196, J. P. C. , is committed not while any proceedings are pending in a court but while the case is still in the investigation stage any complaint is necessary by a court before cognizance can be taken of the offence.

( 4 ) A reference to Section 195 (1) (b) of the Code of Criminal Procedure will show that it prohibits taking of cognizance in respect of certain offences including those punishable under sections 193 and 19ft except on a complaint, only if the offences are alleged to have hecn committed "in or in relation to, any proceeding in any Court". The prohibition is therefore not an absolute prohibition and does not preclude

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