'Judicial Proceeding' Under Section 2(i) CrPC: Scope, Tests, and What Falls Outside the Definition
- Umang
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A witness deposes falsely before a Magistrate in a maintenance proceeding. The same Magistrate, weeks earlier, had recorded the same person's confessional statement during police investigation. Are both situations equally vulnerable to prosecution under Section 193 of the Indian Penal Code — the offence of giving false evidence in a judicial proceeding?
The answer turns entirely on whether the particular proceeding before the Magistrate, at the particular moment the statement was recorded, constituted a judicial proceeding within the meaning of Section 2(i) of the Code of Criminal Procedure, 1973.
The stakes are significant: the concept of judicial proceeding draws the boundary for perjury prosecution, for the bar on private complaints under Section 195 CrPC, for the summary prosecution of false evidence under Section 344 CrPC, and for whether statements recorded have the full weight of sworn testimony.
Section 2(i) CrPC: The Statutory Text and Its Structure
Section 2(i) of the Code of Criminal Procedure, 1973 provides: "judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath.
The definition consists of three functional parts — the word "includes", which signals its non-exhaustive character; the phrase "any proceeding", which is deliberately wide; and the qualifying clause "in the course of which evidence is or may be legally taken on oath", which supplies the operative test.
The Word "Includes": A Non-Exhaustive Gate
The definition uses the word "includes" rather than "means". This choice is legally significant. As confirmed in Shrichand v. State of M.P. ((1993) CrLJ 495), the word "includes" signals that the definition is not exhaustive. It opens a gate rather than setting a wall. The statutory criterion — proceedings in which evidence is or may be legally taken on oath — does not exhaust the category; it provides a minimum qualifying threshold.
Proceedings that satisfy the oath-evidence criterion are judicial proceedings; but proceedings may also qualify as judicial proceedings on other bases if they satisfy the classical tests drawn from judicial interpretation.
The Core Test: Evidence on Oath
The operative criterion in Section 2(i) is that evidence "is or may be legally taken on oath" in the course of the proceeding. The phrase "may be legally taken" is particularly important. It does not require that evidence has actually been recorded on oath in the specific proceeding in question. The potential — the legal capacity of the proceeding to receive sworn evidence — is sufficient. A proceeding does not lose its character as a judicial proceeding merely because no evidence has yet been taken in it, so long as evidence could lawfully be taken on oath in its course.
This is confirmed directly in the source commentary: the words "or may be legally taken" suggest that in order to constitute a judicial proceeding, it is not necessary that the recording of evidence must actually take place (Shrichand v. State of M.P.). Proceedings for grant of bail, for instance, are judicial proceedings even if no evidence is formally recorded at every bail application, because the court has the legal capacity to receive evidence in such proceedings.
"Or May Be Legally Taken": Potential Suffices
The phrase further clarifies that legality is the controlling criterion for the taking of evidence — "may be legally taken on oath." Evidence taken illegally, or in a proceeding that lacks the authority to administer oaths, does not convert that proceeding into a judicial proceeding. The power to administer oaths and legally receive evidence is a marker of judicial authority. Conversely, the absence of that power in a particular function of a Magistrate is a reliable indicator that the function is not a judicial proceeding.
The Classical Judicial Tests for a Judicial Proceeding
The courts have, over a long line of decisions, articulated several tests for determining whether a proceeding constitutes a judicial proceeding for the purposes of Section 2(i). These tests supplement and contextualise the statutory criterion.
Test 1: Object Is to Determine a Jural Relation
A judicial proceeding is a proceeding whose object is to determine the jural relation between one person and another or the community in general (Emp. v. Tulja, (1888) 12 Bom 36 (42)). The proceeding must be directed at determining rights, liabilities, or legal relations between parties or between a party and the State — not merely at gathering information or performing administrative tasks. Where the proceeding is aimed at determining whether a person has committed an offence and what consequences follow, it satisfies this test. Where it is aimed purely at collecting material for the information of the police or the executive, it does not.
Test 2: The Presiding Authority Acts Judicially in Exercise of Judicial Power
The presiding authority — whether a Magistrate, Judge, or other forum — must act judicially, in the exercise of judicial power (Clarke v. Brojendra, (1912) 39 Cal 953 PC). This means the authority must be acting in a capacity that involves the application of legal standards to facts and the exercise of discretion in a way that affects the rights of parties — not in a merely administrative or executive capacity.
The same Magistrate who is a judicial proceeding authority when presiding over a trial or inquiry is not necessarily exercising judicial power when agreeing with a police report under Section 169, which is characterised as a function "in the course of investigation by the Police" (Shrichand v. State of M.P.).
Test 3: Not All Powers Conferred by the Code Are Judicial Powers
A critically important principle derived from Maha Singh v. State (AIR 1976 SC 449) and confirmed across judicial authority is that not all powers conferred by the Code are judicial powers. The Code invests Magistrates, police officers, and other authorities with a diverse range of powers — some judicial, some administrative, some ministerial, and some investigative. The mere fact that a Magistrate exercises a power conferred by the Code does not by itself make the exercise of that power a judicial proceeding. Each power must be examined individually to determine whether its exercise has the characteristics of a judicial proceeding.
Test 4: Ends in a Judgment, Sentence, or Final Order
A judicial proceeding ends in a judgment, sentence, or final order (Gholam v. Ismail, 1 All 1 (13)). This requirement captures the adjudicative character of judicial proceedings — they resolve something with finality, at least at the level of the proceeding in question. An investigation ends in a police report; a purely administrative function ends in an executive action; a judicial proceeding ends in a determination that has legal consequences for the parties and is susceptible to challenge by way of appeal or revision.
Test 5: The Proceeding Must Be Within Jurisdiction
A proceeding cannot be a judicial proceeding if it is without jurisdiction (Radhika v. Lalmokon, 20 Cal 719). Jurisdiction is a precondition for the exercise of judicial power. A proceeding conducted by a Magistrate who lacks the competence to conduct it — whether for want of territorial or subject-matter jurisdiction — is not a judicial proceeding within Section 2(i), regardless of its outward form. This principle connects directly to Section 461 CrPC, which renders certain proceedings by unauthorised Magistrates absolutely void.
What IS a Judicial Proceeding: The Established Categories Under the CrPC
The courts have held the following, among others, to be judicial proceedings within the meaning of Section 2(i):
Inquiry under Section 144 CrPC (emergency orders) — Tirunarasimha v. Emp. ((1895) 19 Mad 18)
Inquiry under Section 176 CrPC (Magistrate's inquest into cause of death) — Bahadur v. Eradatulla ((1910) 37 Cal 642 FB)
Inquiry under Section 202 CrPC (inquiry by Magistrate on complaint before issue of process) — Kanchan v. Ram Kishun ((1908) 36 Cal 72); Veni v. Wajid (AIR 1937 All 90)
Inquiry under Section 84 CrPC (bail forfeiture proceedings) — Hameed v. State (AIR 1957 All 121)
Proceedings under Section 340 CrPC (preliminary inquiry for prosecution of offences affecting administration of justice) — Faiz Ali v. Emp. ((1909) 37 Cal 27)
Proceedings for issue of search warrant under Section 97 CrPC — Abdul Aziz ((1916) 18 CrLJ 491)
Remanding accused under Section 167(2) CrPC — Subba Reddy v. State (AIR 1969 AP 281)
Proceedings for maintenance under Chapter IX CrPC — Mithan v. Municipal Bd. (AIR 1956 All 851)
Proceedings for forfeiture of security bonds under Section 446 CrPC — Q.E. v. Harchandra (25 Cal 440)
Proceedings for grant or discharge of bail — Kamalapatí v. State of W.B. (AIR 1979 SC 777)
Summary proceeding under Section 228 IPC (contempt of court proceeding) — Shrichand v. State of M.P. ((1993) CrLJ 495)
Investigation made by a Magistrate under Section 202 at the direction of the Magistrate who has taken cognizance of a complaint — Veni v. Wajid (AIR 1937 All 90 (93))
The Extended Scope: Judicial Proceedings Outside the CrPC
The definition's non-exhaustive character through the word "includes" is not merely a textual nicety. It has been given concrete application by the courts, which have extended the concept of judicial proceeding to proceedings under laws other than the CrPC — wherever evidence on oath may be lawfully taken in the course of such proceedings (Shrichand v. State of M.P.).
The following have been held to be judicial proceedings notwithstanding that they arise under statutes other than the CrPC:
Proceedings in execution of a Civil Court decree — Shrichand v. State of M.P.
An inquiry under the Legal Practitioners Act — Nallasivam v. Ramalingam (32 MLJ 402)
Proceedings under Section 8 of the Reformatory Schools Act
Proceedings before an Official Assignee under Section 332 of the Presidency Towns Insolvency Act, 1909 — Soundararajan v. Sankarapandia (AIR 1958 Mad 69)
The principle underlying these extensions is consistent: the proceeding occurs before a recognised legal forum, the forum is empowered to receive evidence on oath, and the proceeding is directed at determining the legal rights or liabilities of parties. The forum need not be a criminal court; it need not even be a court in the strict sense. What matters is the combination of the oath-taking capacity and the adjudicative character of the proceeding.
What Falls OUTSIDE the Definition: The Critical Exclusions
The category of what is not a judicial proceeding is as important as what is — particularly because the exclusions arise in situations that are structurally similar to judicial proceedings and where the distinction has real legal consequences.
Section 164 Statement Recording During Police Investigation
The recording of a statement by a Magistrate under Section 164 CrPC in the course of police investigation is not a judicial proceeding. This proposition, settled in Purshottam v. Emp. ((1921) 45 Bom 834 : AIR 1921 Bom (FB)), is one of the most practically important exclusions from Section 2(i).
When a Magistrate records a confessional or non-confessional statement under Section 164 during police investigation — before the commencement of inquiry or trial — the Magistrate is performing a ministerial function incidental to the investigative process. The Magistrate is not adjudicating a dispute, not determining jural relations between parties, and not exercising judicial power in the sense that characterises judicial proceedings. The function is one of recording a voluntary statement in a controlled environment to lend it authenticity and safeguard the maker's interests.
The practical consequence is direct: a statement made under Section 164 during police investigation, even if made on oath, is not evidence given in a judicial proceeding for the purposes of Section 193 IPC. It cannot found a perjury prosecution under Section 193 IPC by itself, because Section 193 applies only to false evidence given "in any stage of a judicial proceeding." Moreover, such a statement cannot be used as substantive evidence at the trial; it can only be used to corroborate or contradict the witness's testimony when he appears before the court — as confirmed in Ram Kishan Singh v. Harmit Kaur (AIR 1972 SC 468).
The distinction draws attention to a nuance: the same Magistrate who records a Section 164 statement during investigation is not exercising the same kind of function as when presiding over a trial or an inquiry. The classification turns on the nature and occasion of the particular act, not on the identity or general authority of the presiding officer.
Section 169: Magistrate Agreeing with Police Report
The function of a Magistrate in agreeing with a Police report under Section 169 CrPC — where the police release the accused on bond for want of sufficient evidence and report the matter to the Magistrate — has been held to be a function exercised "in the course of investigation by the Police" and therefore not a judicial proceeding (Shrichand v. State of M.P., (1993) CrLJ 495).
The Magistrate's concurrence with a police decision taken during investigation does not transform that executive act into a judicial proceeding. The Magistrate is here performing a supervisory function over an administrative decision, not exercising judicial power in the adjudicative sense.
Proceedings Without Jurisdiction
A proceeding that is without jurisdiction cannot be a judicial proceeding, however formally it may be constituted. As Radhika v. Lalmokon (20 Cal 719) establishes, jurisdiction is a precondition for judicial power.
A Magistrate who tries an offence exclusively triable by the Court of Session, or exercises a power that belongs exclusively to another authority — such as security proceedings that belong to an Executive Magistrate being conducted by a Judicial Magistrate — is acting without jurisdiction, and the proceeding is accordingly not a judicial proceeding within Section 2(i). Section 461 CrPC reinforces this by rendering certain such proceedings void irrespective of good faith.
Why the Classification Matters: Practical Stakes of "Judicial Proceeding"
Section 193 IPC: Perjury Only in a Judicial Proceeding
The offence of giving or fabricating false evidence under Section 193 IPC is committed specifically in relation to any stage of a judicial proceeding or in a proceeding other than a judicial proceeding. The punishment is different for the two: the first paragraph of Section 193 IPC deals with false evidence in judicial proceedings and carries imprisonment up to seven years; the second paragraph, with false evidence in non-judicial proceedings, carries imprisonment up to three years.
Whether the proceeding in which false evidence was allegedly given constitutes a judicial proceeding is therefore a threshold question for determining even the applicable head of punishment under Section 193 IPC. Statements made in police investigation — including voluntary statements to police officers under Section 161 or confessional statements under Section 164 in the investigative stage — are not in the course of a judicial proceeding and cannot found prosecution under the first paragraph of Section 193.
An important illustration: an FIR is not a statement on oath, and a statement before the police under Section 161 cannot be used at trial as evidence at all (Section 162 CrPC). Neither can give rise to a perjury prosecution. Only when a witness deposes before a court — in a proceeding qualifying as a judicial proceeding — does the oath taken before deposition carry the full force of legal accountability for false evidence.
Sections 340 and 344 CrPC: Prosecution for False Evidence
Section 340 CrPC empowers a Court to make a complaint for prosecution where it appears that an offence specified in Section 195(1)(b) IPC — including perjury under Section 193 — has been committed in relation to a proceeding in that Court. Section 344 CrPC empowers a Sessions Judge or Magistrate of the First Class to try summarily a witness who has given false evidence in a judicial proceeding before that Court.
Both provisions operate exclusively within the domain of judicial proceedings. Section 344, in particular, applies only to "witnesses appearing" and "giving evidence" in a judicial proceeding (Gangawwa v. State of Mysore, AIR 1969 Mys 114). It cannot be applied to a person who merely filed an affidavit and did not appear as a witness to give evidence — as the Supreme Court held in Chajoo Ram v. Radhey Shyam (AIR 1971 SC 1367 : (1971) 1 SCC 774 : 1971 CrLJ 1096). An affidavit, though on oath, is not evidence given in a judicial proceeding unless it is tendered and received as evidence in the course of such a proceeding.
Similarly, an arbitrator is not a court within the meaning of Section 195 CrPC, and proceedings before an arbitrator do not constitute judicial proceedings for the purpose of Section 340 — as the Supreme Court held in Manoharlal v. Vinesh Anand (AIR 2001 SC 1820 : (2001) 5 SCC 407).
Section 195 CrPC: Bar on Private Prosecution for Certain Offences
Section 195(1)(b) CrPC bars any Court from taking cognizance of certain offences — including perjury under Section 193 IPC — when these offences are alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court or by such officer as that Court appoints. This bar is designed to prevent private parties from using the threat of perjury prosecution to harass witnesses in judicial proceedings.
The scope of this bar depends on whether the proceeding in question is a judicial proceeding and whether the relevant Court is a "Court" within Section 195(3). An arbitrator is not a Court for these purposes; proceedings before a Tribunal not enumerated in Section 195(3) may not attract this bar. The classification thus determines whether a private party may file a complaint for perjury or must wait for the Court itself to make a complaint — a significant procedural constraint.
Evidentiary Consequences: Statements Under Section 164 vs. Deposition in Trial
The evidentiary treatment of a statement made under Section 164 CrPC differs fundamentally from a deposition given in a judicial proceeding, and this difference flows directly from the Section 2(i) categorisation.
A Section 164 statement — recorded in the course of police investigation, which is not a judicial proceeding — can be used only to corroborate or contradict the witness when he deposes at the trial, under Sections 145 and 157 of the Indian Evidence Act. It cannot be used as substantive evidence of the facts stated (Ram Kishan Singh v. Harmit Kaur, AIR 1972 SC 468). Nor does it become substantive evidence merely because the witness says in Court that what he stated under Section 164 was true (State of Delhi v. Ram Lohia, AIR 1960 SC 490).
By contrast, a deposition given in the course of a trial — a judicial proceeding — is substantive evidence of the facts stated, receivable and weighed by the Court as part of the body of evidence on which the verdict rests.
The Magistrate in a Dual Role: Same Person, Different Functions
One of the most analytically interesting aspects of Section 2(i) is that it requires the function — not merely the forum or the officer — to be characterised as judicial or non-judicial. The same Magistrate may, in the course of a single case, exercise both judicial and non-judicial functions.
When the Magistrate examines the complainant on oath under Section 200, that is a judicial proceeding. When the same Magistrate, at an earlier stage, directs investigation under Section 156(3) without having taken cognizance, that act of direction is not itself a judicial proceeding in the full sense — it is a step that precedes the judicial examination of the complaint.
The transition is particularly visible in the context of Section 164 statements. When a Judicial Magistrate records a confession or statement during police investigation, the Magistrate is not in judicial mode. When the same Magistrate, upon cognizance, examines witnesses in an inquiry under Section 202, the Magistrate is fully in judicial mode, and the proceeding is a judicial proceeding in terms of Section 2(i). The officer has not changed; the function and its legal character have.
BNSS 2023: Section 2(1)(m) and the Status of the Definition
The Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) carries forward the definition of judicial proceeding without any substantive change. Section 2(1)(m) BNSS reproduces the Section 2(i) CrPC definition intact — as the comparison table confirms: "No change." The definition continues to read as "includes any proceeding in the course of which evidence is or may be legally taken on oath."
The entire jurisprudence on Section 2(i) CrPC — the classical tests, the established categories of what is and is not a judicial proceeding, the exclusion of Section 164 recordings during investigation, the extended scope to proceedings under other laws — carries forward under the BNSS without modification.
The one significant contextual change is that the corresponding provisions for recording confessions and statements — now Section 183 BNSS (corresponding to Section 164 CrPC) — introduce additional requirements including that statements be recorded by a woman Magistrate as far as practicable, and provide for mandatory recording of statements of witnesses in cases involving punishments of ten years or more through audio-video electronic means. These changes are procedural refinements within the recording function but do not alter the fundamental characterisation of Section 164/183 recording as a non-judicial proceeding.
Common Misconceptions
Misconception 1: Any proceeding before a Magistrate is a judicial proceeding. Not so. The same Magistrate exercises both judicial and non-judicial functions. Recording of a Section 164 statement during police investigation, concurring with a police decision under Section 169, or performing purely executive or administrative functions are not judicial proceedings merely because a Magistrate is the presiding officer. The function and its adjudicative character determine the classification, not the identity of the officer.
Misconception 2: Evidence must actually be recorded on oath for the proceeding to be a judicial proceeding. The definition expressly provides for proceedings where evidence "or may be legally taken on oath." The potential for oath-based evidence-taking is sufficient. Bail proceedings are judicial proceedings though evidence is rarely formally recorded at every bail application.
Misconception 3: A Section 164 statement can found a perjury prosecution because it is taken before a Magistrate. A Section 164 statement recorded during police investigation is not in the course of a judicial proceeding. It cannot by itself found a perjury prosecution under Section 193 IPC. The witness must depose before a court in a judicial proceeding, and the false evidence must have been given in that judicial proceeding.
Misconception 4: Arbitration proceedings are judicial proceedings for Section 195 CrPC purposes. An arbitrator is not a court within the meaning of Section 195 CrPC and proceedings before an arbitrator do not constitute judicial proceedings for the purpose of Section 340 CrPC — as settled in Manoharlal v. Vinesh Anand (AIR 2001 SC 1820).
Conclusion
Section 2(i) CrPC defines judicial proceeding by reference to the proceeding's capacity to receive evidence on oath — but that definition, using the word "includes," is only the entry point. The courts have layered over it a set of classical tests: the proceeding must aim at determining jural relations; the presiding authority must act judicially in the exercise of judicial power; not every power conferred by the Code is a judicial power; and the proceeding must lie within the authority's jurisdiction. Taken together, these tests draw a line between the adjudicative functions of courts and Magistrates on the one hand, and their administrative, ministerial, and investigative functions on the other.
The line matters profoundly. It determines whether a false statement can be prosecuted as perjury under Section 193 IPC. It determines whether the bar in Section 195 CrPC prevents private prosecution. It determines whether the summary perjury procedure under Section 344 CrPC can be invoked. And it determines what weight a statement is entitled to receive as evidence at trial. The exclusion of Section 164 recording during police investigation from the category of judicial proceeding is the sharpest illustration of the line in operation — the same Magistrate, the same room, the same solemn setting, but not a judicial proceeding because the investigation stage assigns the function a different character.
The BNSS 2023 inherits this definition and its jurisprudence unchanged, through Section 2(1)(m) BNSS. For legal practitioners and students, the Section 2(i) jurisprudence remains as operative under the BNSS as it was under the CrPC.
Frequently Asked Questions
Q: What is the definition of judicial proceeding under Section 2(i) CrPC?
Section 2(i) CrPC defines judicial proceeding as including any proceeding in the course of which evidence is or may be legally taken on oath. The word "includes" indicates the definition is non-exhaustive. The operative test is whether the proceeding has the legal capacity to receive sworn evidence — but courts have supplemented this statutory criterion with classical tests requiring the proceeding to be aimed at determining jural relations, conducted by an authority acting judicially, within jurisdiction, and ending in a judgment or final order.
Q: Is the recording of a Section 164 statement by a Magistrate during police investigation a judicial proceeding?
No. The recording of a confession or statement by a Magistrate under Section 164 CrPC in the course of police investigation — before the commencement of inquiry or trial — is not a judicial proceeding. As held in Purshottam v. Emp. (AIR 1921 Bom FB), this function of the Magistrate is ministerial and incidental to the investigative process. Consequently, a false statement made under Section 164 during police investigation cannot directly found a perjury prosecution under Section 193 IPC as evidence given in a judicial proceeding.
Q: Does a proceeding under any law other than the CrPC qualify as a judicial proceeding?
Yes. The definition in Section 2(i) CrPC is non-exhaustive, and the courts have held that proceedings under other laws — such as proceedings in execution of a Civil Court decree, inquiries under the Legal Practitioners Act, and proceedings before the Official Assignee under insolvency law — are also judicial proceedings, provided evidence on oath may be lawfully taken in the course of such proceedings.
Q: Why does it matter whether a proceeding is a judicial proceeding under the CrPC?
The classification as a judicial proceeding determines the applicability of several critical provisions: (i) whether false evidence given amounts to perjury under Section 193 IPC; (ii) whether Section 195 CrPC bars private prosecution and requires the Court itself to make a complaint; (iii) whether the Court may initiate summary prosecution for false evidence under Section 344 CrPC; and (iv) whether the statement has the status of substantive evidence or can only be used to corroborate or contradict a witness at trial.
Q: What has the BNSS 2023 changed in the definition of judicial proceeding?
Nothing. Section 2(1)(m) BNSS is identical in substance to Section 2(i) CrPC. The entire body of case law interpreting Section 2(i) — including the classical tests, the established categories, and the critical exclusions — applies equally under the BNSS.
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