1. This is an application in revision and the facts which underlie it are these. The present applicant brought before the police a charge of theft against one Khanya, alleging that this Khanya had stolen a sheep and a goat belonging to the applicant. Khanya was sent for trial before a Magistrate but the Magistrate discharged him, holding that the evidence was insufficient to support the conviction. When, however, an application was made to that Magistrate that the present applicant should compensate Khanya for having made a frivolous or vexatious charge against him, the Magistrate declined to accede to this application, holding that there was nothing to satisfy him that the applicant's complaint, even though he had failed to substantiate it by evidence, was made, mala fide or was frivolous or vexatious.
2. Subsequently proceedings were taken against the present applicant and he has now been convicted under Section 182 of the Penal Code.
3. The first point taken by the learned Counsel on his behalf is that by virtue of the ruling in Empress v. Arjun I.L.R. (1882) Bom. 184 the charge against the present applicant should have been under Section 211, and did not properly lie under Section 182. The distinction is important, because Section 211 requires magisterial sanction. No such sanction has been received for the prosecution, and it is . fairly obvious on the facts that no such sanction would have been given if it had been sought. It appears to me that Mr. Weldon is right in his contention that, assuming the state of facts upon which the prosecution relied, the charge to be preferred against the applicant should have been under Section 211 and not under Section 182.
4. It is true, as the learned Government Pleader pointed out, that the mere words of Section 182, if they stood alone, are wide enough to cover the case where the information conveyed to a police officer amounts to a direct charge of an offence as ' offence' is defined in the Penal Code ; but Section 182, it seems to me, is to be interpreted not in isolation but in association with Section 211, and if the wording of the two sections is contrasted, the different circumstances provided for by both seem to me to be fairly easy of ascertainment. It appears to me that where Grille information conveyed to the police amounts to the institution of criminal proceedings against a defined person, or amounts to the falsely charging of a defined person, with an offence as ' offence ' is defined in the Penal Code, then the person giving such information has committed an offence punishable under Section 211. In such a case Section 211 is, and Section 182 is not, the appropriate section under which to frame the charge. If that is the true distinction then admittedly the act imputed to the applicant here was properly indictable under Section 211, and, if that be so, then I must hold that the act was not properly chargeable under Section 182, because in my opinion Section 182, when read with Section 211, must be understood as referring to cases where the information given to the public servant falls short of amounting to the institution of criminal proceedings against a defined person and falls short of amounting to the false charging of a defined person with an offence as defined in the Penal Code. The distinction is substantial because the Court's sanction is required for a prosecution under Section 211. In my judgment such a sanction was, for the reasons stated, required here; but none was either obtained or sought. It was not, I think, competent to the police to evade the necessity of Magisterial sanction under Section 211 by falling back upon Section 182, because in ray view a charge under Section 182 was inappropriate to the facts upon which the prosecution was based. As to the merits the record discloses ample ground for believing that the applicant's accusation was made in all honesty and good faith. I would therefore make the rule absolute and reverse the conviction and sentence.
5. I agree that in this case the rule ought to be made absolute, as my learned colleague has said, because the merits of the case point in that direction ; but I also think that there has been a very serious mistake in the method in which this case has been instituted. I do not wish to be understood as meaning that it is not in any case open to a Magistrate to frame a charge under Section 182, even though the matter would also come under Section 211. But I do say this that where the matter does fairly come under Section 211 and where a sanction is needed, in order that the prosecution may proceed under that section, to proceed without any magisterial sanction under Section 182 is to evade the salutory provisions of the law. I think that evasion has taken place in this case. Therefore, even if the merits were the other way, I should say the conviction ought to be set aside and that at most the prosecution could only go on if the Magistrate's sanction were obtained. But having regard to the merits as they appear to us, I do not think any further proceedings ought to be taken in this case.