JUDGMENT

Harrison, J. - Two officers were appointed special Commissioners under Act 37 of 1850 to hold an inquiry under that Act regarding the conduct of Mr. M.M. Khan, executive engineer. A certain document was put in in the course of that inquiry and the Special Public Prosecutor Rai Bahadur Jwala Parshad then applied, under Section 195, Criminal P.C., read with Section 476 to the Commissioners and asked them to make a complaint. This application was opposed by Sir Muhammad Shafi, counsel for the officer whose conduct was under inquiry, and after a lengthy hearing an order was passed by the Commissioners to the effect that no complaint by them was necessary and that the case could proceed without it.

2. Rai Bahadur Jwala Parshad urged that a complaint was necessary but that whether it was necessary or not it should anyhow be made as it could in no way injure or invalidate the proceedings, and it would be a wise precaution if there was any doubt in the matter. I do not quite understand the reasoning of the Commissioners as to why they did not adopt this course and save themselves and others much trouble, expense and delay. Anyhow a complaint was instituted by Mr. Nicholson, Superintending Engineer, and Mr. M.M. Khan then adopted the obvious tactics of instructing another counsel to object that the proceedings could not continue without a complaint. The same legal officer, who had appeared before the Commissioners, Rai Bahadur Jwala Parshad, is now in the difficult position of arguing on the other side for the Crown in support of the order.

3. Counsel for the petitioner points out that, although there is no definition of a Court in the Code of Criminal Procedure, there is such a definition in Section 3, Evidence Act, and that it includes all persons authorized to take evidence on oath. It is conceded by the other side that so far as the Evidence Act goes the Commissioners are a Court.

4. He then points out that the proceedings before the Commissioners are judicial proceedings as defined in Section 4(m), Criminal P.C. This is really much the same as saying that the Commissioners are a Court for the purposes of Section 3, Evidence Act. His remaining point consists of a hypothetical case and a challenge to the other side to say whether the Commissioners are or are not a Court under Section 481, Criminal P.C. Whether they are a Court or not under that section, they are given all the powers of such a Court by Section 8, Public Servants Act, so the point is ultra academic Counsel finally quotes the following rules: In re Venkatachala Pillai [1886] 10 Mad. 154, Atchayya v. Gangayya [1892] 15 Mad. 138. Bilas Singh v. Emperor and In re Punamchand Manek Lal .

5. Counsel for the Crown, on the other hand, relies on the authorities quoted in the order of the Commissioners, and more especially on the last, In re Nataraja Aiyar [1913] 36 Mad. 72. So far as the earlier rulings are concerned, they nowhere lay down that the test applied of the power of the Court to dispose of the case is exhaustive and conclusive. In re Maharaja Madhava Singh [1905] 32 Cal. 1, a finding in the alternative is given. In In re Nataraja Aiyar [1913] 36 Mad. 72, it is certainly stated that two tests must be applied before it can be held that any particular officer is a Court, and they are the authority to take evidence and the authority to deal out justice, which can only mean to give a final decision.

6. Mr. Saleem has pointed out that for the purposes of the case before the Judges in In re Nataraja Aiyar [1913] 36 Mad. 72 it was unnecessary to come to this decision in its entirety, for it was quite sufficient for them to decide as they did that the official in that case, namely, the Additional Income-tax Officer, was a Court. He contends that the portion of the judgment, which lays down the general proposition and excludes all officers, who do not finally decide oases was obiter. I think this is so. These authorities are summed up by the Commissioners in the following w