1. The appellant was convicted of having made to the police a false charge of dacoity against certain persons and was sentenced under Section 211, Indian Penal Code, to suffer four years' rigorous imprisonment.
2. In appeal it is urged that, though the charge to the police may have been false, yet as they referred the charge to the Magistrate as false, and as the Magistrate ordered the charge to be dismissed as false without taking any action against the accused, there was no 'institution of criminal proceedings' within the meaning of Section 211, and the offence was therefore only punishable with a maximum of two years' imprisonment under the first part of the section, instead of with seven years' imprisonment under the second part of the section.
3. In support of this view, the rulings of the Allahabad High Court reported in Empress of India v. Pitam Rai I.L.R., 5 A., 215 and Empress v. Parahu I.L.R. 5 A. 598, and Queen-Empress v. Karim Buksh I.L.R. (1887) C. 633 were relied upon. These cases no doubt support the construction of the section for which the appellant contends, but the construction was considered and dissented from by a Full Bench of five Judges of the Calcutta High Court in the case of Karim Buksh v. The Queen-Empress I.L.R. (1888) C. 574 where they followed a long series of earlier rulings of the same Court. We think that the view taken in the latter case is correct. We are unable to find any warrant for holding that the words 'the institution of criminal proceedings' should be limited to the bringing of a charge before the Magistrate or to action by the Magistrate or police against the person charged. It seems to us that, when as in this case a charge of a cognizable offence is made to the police against a specified person, criminal proceedings within the meaning of the section. have been instituted just as much, as if the charge, had been made before the Magistrate. It is agreed that when a charge is preferred to the police it merely sets them on inquiry, and they may find the charge to be false and refuse to proceed with the charge without the accused being even aware that any complaint has been made against him; but precisely the same may be the case when a complaint is made to a Magistrate. He is not bound to take any action against the person accused. He may refer the charge to the police for enquiry, and on receipt of their report may refuse to proceed or take any action, against the accused person. In such a case the accused might be unaware that any complaint had ever been made. Yet it could hardly be contended that the complaint to the Magistrate did not amount to the institution of criminal proceedings within the meaning of the section.
4. We are of opinion as already stated that the true construction of the section is that laid down by the Calcutta High Court in the case we have referred to. Adopting that construction we find that the offence of the appellant in the case before us falls under the latter part of Section 211, I.P.C., and the sentence is not illegal.
5. Looking to the gravity, of the offence charged and the malice of the complainant, we certainly do not consider the sentence excessive. We confirm it and dismiss this appeal.