1. After hearing the learned Advocate for the petitioner and the learned Advocate for the Crown I am of opinion that this rule must be made absolute. The facts briefly are as follows : On 15-9-1946, the petitioner lodged an information at the Memari Police Station in the District of Burdwan charging one Ram Lakshman Dutt with the theft of a goat from his house. It is alleged that the goat was being taken away by Ram Lakshman Dutt at about 12-30 A.M. The police investigated the case and made a final report stating that the case was false and praying that the petitioner may be prosecuted for lodging a false case and thereby committing an offence punishable under Section 211, Penal Code. Upon this the petitioner filed what is known as a 'naraji' petition impugning the correctness of the police report and stating that his case was true. The learned Magistrate had previous to this issued a notice on the petitioner to show cause why he should not be prosecuted for having committed an offence punishable under Section 211, Penal Code, and it was in answer to this notice that the petitioner filed his 'naraji' petition. The Magistrate thereafter examined five witnesses produced by the petitioner and on 6-12-1946 he passed orders. In his order he says that he is of opinion that the information given by the petitioner is 'improbable and false' and that a prima facie case for a prosecution for an offence punishable under Section 211, Penal Code, had been made out against the petitioner; thereupon he decided to try the petitioner for this offence and summoned the petitioner. As regards the 'naraji' petition the learned Magistrate makes the following observation : 'This also disposes of the 'naraji' petition.' Against this order, the petitioner moved the Sessions Judge who rejected the motion and passed an order which discloses that the learned Judge had taken no trouble whatsoever to investigate the law and the different sections of the Code of Criminal Procedure which have been violated. I would point out to the learned Sessions Judge that in criminal matters he should be careful to see that there has been a strict compliance with the law; criminal cases should not be disposed of in the rough and ready manner which the learned Judge seems to have adopted.
2. It has been well established by a long series of decisions that a 'naraji' petition is a complaint within the meaning of Section i (h), Criminal P.C. Thus there was before the learned Magistrate a petition of complaint by the petitioner charging Ram Lakshman Dutt with theft. That petition of complaint had to be disposed to in accordance with the provisions of the Code of Criminal Procedure. The learned Magistrate could have issued summons on the petition of complaint against Ram Lakshman Dutt and proceeded to try him. If he had any suspicion regarding the truth of the complaint and he considered that there should be a postponement of the issue of process against the person complained against the learned Magistrate could have adopted one or other methods prescribed in Section 202, Criminal P.C. Apparently the learned Magistrate wished to proceed under Section 202, Cirminal P.C. inasmuch as he examined witnesses produced by the complainant before deciding whether or not process should issue; but he did not comply fully with the provisions of that section which says that he should record his reasons for postponing the issue of process. This however is not the only error committed by the learned Magistrate. There are other and more serious errors.
3. After examining the witnesses for the complainant there were two courses open to the learned Magistrate. He could have either summoned Ram Lakshman Dutt and tried him or he could have dismissed the complaint under Section 203, Criminal P.C., if he wa3 of opinion that there were not sufficient grounds for proceeding with the case. In the latter case he should briefly record his reasons for dismissing the complaint. The learned Magistrate has not even dismissed the complaint. All he has said is this : 'This also disposes of the naraji petition.' The learned Magistrate would have done well to have studied the Code of Criminal Procedure and proceeded in accordance therewith instead of inventing a procedure of his own. If the learned Magistrate had dealt properly with the matter and if he had dismissed the petitioner's complaint the petitioner would have had a remedy. He could have moved against the order of dismissal. He has been deprived of that remedy by an order which does not dismiss the complaint.
4. The next difficulty in the way of the Crown is this. As the matter was before the Court upon a complaint the provisions of Section 193(1)(b), Criminal P.C. would at once be attracted. Section 195(1)(b), Criminal P.C. says, inter alia, that no Court shall take cognizance of any offence punishable under Section 211, Penal Code when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate. If the case of the petitioner was false, he would be guilty of an offence punishable under Section 211, Penal Code, but the offence would be one which had been committed in a proceeding in Court because the offence was committed when the false complaint was lodged in Court, Had there been no naraji petition or complaint, then Section 195(1)(b), Criminal P.C. would have had no operation, The Court could have taken cognizance of the case against the petitioner in accordance with the provisions of Section 190(1)(b), Criminal P.C. But once there has been a petition of complaint in Court, Section 195(1)(b), Criminal P.C. comes into operation and there must be a complaint in writing by the Court in which the complaint was lodged or by some other Court to which such Court was subordinate. In this connection I would refer to the case in Tayebullah v. Emperor 4 A.I.R. 1917 Cal. 593. This is not a mere technical error. If the learned Magistrate had made a complaint in writing in accordance with the provisions of Section 195(1)(b), Criminal P.C. as he was bound to do, the petitioner would have had a remedy by way of appeal under Section 476B, Criminal P.C. In the present case this right of appeal has been denied the petitioner by reason of the procedure adopted by the learned Magistrate.
5. Having regard to all these circumstances I set aside the order passed by the learned Magistrate and direct him to deal with the naraji petition as if it were a petition of complaint and to proceed in accordance with the provisions of Section 200, Criminal P.C. and the following sections. After he has disposed of the complaint in accordance with the provisions of law, the learned Magistrate may take such steps as he thinks proper in accordance with the provisions of the Code of Criminal Procedure adverted to above and in the light of the observations made above.