1. The petitioner in this rule lodged information before the Police charging certain parsons with committing dacoit. The Police investigated the charge and found it to be false and reported the matter to the Sub Divisional Magistrate of Purneah, requesting that the petitioner might be prosecuted under Section 211, Indian Penal Code, for preferring a false charge. In the meantime the petitioner lodged a petition before the Sub-Divisional Magistrate maintaining that his information to the Police was true and asking that an enquiry might be made into the complaint. The Sub Divisional Magistrate thereupon, on the 8th of September 1916, directed that the petition should be treated as a complaint and should be inquired into judicially and on the 22nd of September, he issued processes upon the petitioner's witnesses for an inquiry to be hold on the 18th of October. On the 30th of October, when the witnesses of the petitioner were present in Court, the Sub-Divisional Magistrate transferred the case to a Deputy Magistrate directing him to inquire and pass final orders in the case.
2. The Deputy Magistrate thereupon made an enquiry, examined the witnesses and finally on the 4th of December 1916, dismissed the petitioner's complaint under Section 203, Criminal Procedure Code. He also added the following order: 'Enter maliciously false, Section 395, Indian Penal Code. I sanction prosecution of Eqbal Khan under Section 211, Indian Penal Code. Draw up proceedings accordingly.'
3. The petitioner thereupon appealed to the Sessions Judge. The proceedings of the learned Judge are not very intelligible, but in the result he appears to have expunged from the judgment of the learned Deputy Magistrate the following words: 'I sanction prosecution of Eqbal Khan under Section 211, Indian Penal Code.' If the learned Judge was under the impression that the learned Deputy Magistrate had sanctioned the prosecution of Eqbal Khan under Section 195, Criminal Procedure Code, and had also at the same time instituted proceedings under Section 476, Criminal Procedure Code, he obviously was in error. There could not in the same proceeding be a sanction and an order for prosecution under Section 476, Criminal Procedure Code, and the learned Judge's order directing that so far as the sanction was concerned the judgment of the learned Deputy Magistrate should be set aside, seems to have been totally misconceived. The fact was that the order of the learned Deputy Magistrate was nothing more or less than an order under Section 476, Criminal Procedure Code, and, therefore, the learned Judge had no jurisdiction to deal with it in appeal. The learned Judge was not competent merely upon the consent of the Government Advocate to expunge certain words from the order. If the order was one under Section 476, Criminal Procedure Code, the learned Judge had no jurisdiction. If it was one under Section 195, then the learned Judge had jurisdiction and in clear terms should have declared whether the proceedings against the petitioner were quashed. The learned Judged proceeding, however, does not materially affect the matter now before me. Treating the order of the learned Deputy Magistrate as an order under Section 476, Criminal Procedure Code, the question that I now have to determine is whether that order was made with jurisdiction.
4. Now it appears that the petition or complaint, which was made to the Sub-Divisional Magistrate by the petitioner asking for an enquiry, was transferred to the learned Deputy Magistrate under Section 192, Criminal Procedure Code. The learned Vakil for the petitioner contends that the transfer was made under Section 202, and not under Section 192, and that all that the learned Deputy Magistrate was competent to do was to make an enquiry and return the papers to the Sub Divisional Magistrate; but that clearly is not correct. The learned Sub-Divisional Magistrate transferred the complaint for disposal by the Deputy Magistrate and directed him to pass final orders. The fact that the learned Sub-Divisional Magistrate issued processes upon the witnesses of petitioner does not materially alter the nature of the transfer. The issue of processes was perhaps premature, but it in no way affected the jurisdiction of the Deputy Magistrate to deal with the com-plaint according to the terms of Chapter XVI. The fatal objection, however, to the proceedings of the learned Deputy Magistrate is that he omitted to examine the complainant and that under the terms of Section 202, Criminal Procedure Code, until he did so examine the complainant, he had no jurisdiction whatsoever to dispose of the complaint. Therefore in the present case, although the learned Deputy Magistrate has made an elaborate enquiry, that enquiry is wholly without jurisdiction and anfractuous. It will not avail to seek to cure the defeat by examination of the complainant at the present stage, for jurisdiction founded upon the examination of the complaint subsequent to the enquiry will not cure the primary absence of jurisdiction. It is unfortunate that the proceedings of the learned Deputy Magistrate have to be set aside, but there is no help for it.
5. Then the learned Deputy Government Advocate urges that although the proceedings may not have been strictly in accordance with law under the provisions of Section 202, Criminal Procedure Code, yet the Sub-Divisional Magistrate and through him the Deputy Magistrate had jurisdiction to enquire on the footing that the sub-Divisional Magistrate may be said to have taken cognizance of the Police report under Section 190 (b), Criminal Procedure Code.
6. It is undoubtedly true that a Magistrate duly empowered may take cognizance of a non cognizable offence on a Police report under Section 190 (b), Criminal Procedure Code, but in that case he must immediately summon the accused, and he cannot under the provisions of the Criminal Procedure Code proceed to hold a judicial enquiry as was done in the present case. The proceedings of the learned Sub Divisional Magistrate and the learned Deputy Magistrate clearly indicate that cognizance was taken of a complaint under Section 190 (a) and that the transfer was made under Section 192,
7. The result, therefore, is that the order directing the prosecution of the petitioner must be set aside and that the whole proceedings be re-commenced from the stage at which the petitioner made his complaint. The Sub D visional Magistrate will examine the petitioner on oath as required under the terms of Section 200, Criminal Procedure Code, and will then proceed to dispose of the complaint according to law. If it is still found that the complaint is false and that the petitioner should be prosecuted for making a false charge under Section 211, Indian Penal Code, a proceeding should be drawn up as required by Section 476, Criminal Procedure Code, and submitted to the nearest First Class Magistrate as required by that section. I have directed the Sub Divisional Magistrate to deal with the case himself because having regard to the extra-judicial enquiries which the learned Deputy Magistrate has made, it is not desirable that he should again hear the case.