John Beaumont, Kt., C.J.
1. This is a reference made by the District Magistrate of Kairal asking us to set aside the conviction of the accused under Section 211 of the Indian Penal Code by the First Class Magistrate of Mehmedabad, on the ground that the case was only triable by a Court of Session.
2. It appears that the accused made a false charge to the police that certain persons had been guilty of dacoity. The police inquired into the matter, and came to the conclusion that the charge was false, and they, therefore, obtainedB' summary, and the present accused was then prosecuted under Section 211. Now, that section is divided into two parts: the first part provides that whoever, with the intent specified, institutes or causes to be instituted any criminal proceeding against a person, or falsely charges any person with having committed an offence, shall be punished, as therein mentioned. That part of the section, it will be noted, refers both to instituting criminal proceedings and to making a false charge. Then the second part provides that if such criminal proceeding be instituted on a false charge of an offence punishable with death, transportation for life, or imprisonment for seven years or upwards, the offence shall be punishable more heavily. That part refers only to criminal proceedings instituted on a false charge. Now, under Section 395 of the Indian Penal Code dacoity is punishable with transportation for life, or imprisonment up to ten years. Therefore, it is said that this case falls within the second part of Section 211 of the Indian Penal Code. Under the Second Schedule to the Criminal Procedure Code, on a prosecution under Section 211, if the offence charged be punishable with transportation for life, the case is triable only by a Court of Session; so that, if the learned District Magistrate is right in thinking that the case falls under the second part of Section 211, it is undoubtedly triable only by the Court of Session, and the First Class Magistrate had no jurisdiction. But, in my opinion, in order to bring the case within the second part of Section 211, criminal proceedings must be instituted in a Court on a false charge. No doubt the criminal law may be set in motion by giving information to the police of a cognizable offence; but unless proceedings are instituted in a Court of law, it is not in my opinion correct to say that criminal proceedings have been instituted.
3. There has been a conflict of authority on this point in India. In Karim Buksh v. Queen-Empress (1888) I.L.R. 17 Cal. 574, F.B. a full bench held that even if a false charge was made of an offence punishable with death or transportation for life, and the matter got no further than a police inquiry, nevertheless it fell within the second part of Section 211, because inducing the police to institute the inquiry was instituting criminal proceedings. On the other hand, in Queen-Empress v. Bisheskar (1893) I.L.R. 16 All. 124 it was held that where the offence committed did not go further than the making of a false charge to the police, that did not amount to the institution of criminal proceedings, and the case therefore fell within the first part of Section 211. I prefer the view of the Allahabad High Court to that of the High Court of Calcutta.
4. It would, I think, be very inconvenient, and not in accordance with what one would have expected the framers of the Criminal Procedure Code to contemplate, that a mere charge, however serious, which gets no further than a police inquiry, should give rise to a case triable only by a Court of Session, If the matter gets into Court, and a man is put on his trial on a false charge, that is a much more serious matter. In my opinion if the case gets no further than a police inquiry, it falls within the first part of Section 211 of the Indian Penal Code, and, therefore, the First Class Magistrate of Mehmedabad had jurisdiction to try this case.
5. Notice to enhance the sentence was given, but we think it unnecessary to take any action on the notice.