1. The petitioners who obtained this Rule have been convicted one of an offence punishable under Section 211, I.P.C. and the other of abetment of that offence. The first ground on which the Rule was granted was that in the original trial arising out of the complaint now found to be false the depositions were not read over in accordance with the provisions of Section 360, Criminal P.C. In the explanation submitted by the District Magistrate it is admitted that this was not done. But it is urged that this could not have vitiated the trial in the present case as the proceedings in the former case had not been used in evidence. It appears, however, from the trying Magistrate's judgment that at least one deposition was used in evidence in that case. The deposition of Basir Ex. 29 is mentioned more than once. That an omission to comply with the provisions of Section 360 Criminal P.C., is a bar to the use of the deposition as evidence was decided long ago.
2. The Rule was also granted on the ground that the elements necessary to constitute offences under Sections 211 and 211/109 I.P.C., not being present in the case the convictions are bad in law. Though there are findings sufficient to support the convictions, on a consideration of the judgments both of the trying Magistrate and of the appellate Court we hold that the case is not one in which we should order a retrial after reversing the present convictions on the ground of the wrong admission of evidence. The complaint which is found to have been false was against one Emajuddi. We may take it that Emajuddi was wrongly accused and did not abduct the wife of the petitioner Basir. But there seems very little material on the record to justify the conclusion that Basir accused him knowing that there was no just or lawful ground for such a charge. The principal fact against him appears to be that when on 20th June he laid information at the thana he accused another person. But the prosecution have not shown that he did not receive other information before he complained before the Magistrate on 25th June.
3. The case against the other petitioner Choyenuddin who has been convicted of abetment rests on the fact that he assisted Basir in taking legal proceedings and that he had a reason for wishing to harm Emajuddi. But it does not seem to hava occurred to the lower Court that this enmity with Emajuddi may well have led him to support Basir's complaint believing it to be true to an extent which he would not have done but for this enmity.
4. On the whole we do not think that it will serve any useful purpose to order a retrial. The Rule is made absolute. We set aside the convictions and sentences passed on the petitioners and direct that they be discharged from their bail bonds.