1. The fasts giving rise to this Rule shortly stated are as follows : The petitioner before us is a postal peon. On the 30th June 1925, ha addressed a complaint to the police through the postmaster of the Raj Khamar Post Office against a person named Bhujendra Nath Bhattacharjee charging him with having abused and assaulted him and with having misappropriated a number of postcards and envelopes and cash belonging to Government which were in the possession of the petitioner. The complaint was forwarded to the Sub-Inspector of Police who reported to the Magistrate on the 13th July 1925 that the charges against Bhujendra Nath Bhattacharjee were false. the petitioner was informed on the 15th July 1925, by the Sub-Inspector of Police that the petitioner's charge? against Bhujendra Nath Bhattacharjee were false. This information it would apear was given to the petitioner under the provisions of Section 173(b), Criminal P.C. on the 16th July 1.925, it appears from the order-sheet, that the petitioner was called upon to appear before the Magistrate on the 29th July 1925 to prove his case against Bhujendra Nath Bhattacharjee. Instead of a notice going to the petitioner in terms of the order of the Magistrate, dated the 16th July 1925, it appears that a summons was issued against him as an accused person to answer a charge under Section 211, I.P.C. The petitioner did not appear before the Magistrate on the 29th July 1925 and the case against the petitioner was adjourned to the 13th August 1925. A second summons, again under Section 211, being issued on the 13th August 1925, the petitioner appeared and was admitted to bail. Thereafter the petitioner was tried with having committed an offence punishable under Section 211, I.P.C., and was sentenced to one year's rigorous imprisonment on the 9th October 1925.
2. The petitioner's complaint before us is this that he got no opportunity whatsoever to prove his case against Bhujendra Nath Bhattacharjoe, the police having reported the case to be false on or about the 15th July 1925, and the petitioner being called upon to answer a charge under Section 211, I.P.C. immediately thereafter, although the Magistrate by his order, dated the 16th July, had required him to appear before him on the 29th July 1925, to prove his case against Bhujendra Nath Bhattacharjee. It appears to us on an inspection of the record that the petitioner's complaint is well founded. We think having regard to the facts of this particular case the Petitioner not having been afforded any real opportunity whatsoever to prove his case against Bhujendra Nath Bhattacharjee he should not have been called on to stand his trial under Rule 211, I.P.C., without being given such opportunity. The learned Magistrate was of opinion that the petitioner should be afforded an opportunity to prove his case against Bhujendra Nath Bhattacharjee and to that end he adjourned the matter from the 16th July to the 29th July 1925. As it turned out, however, by reason of some mistake or otherwise this opportunity was not given to the petitioner and as stated above the petitioner was straight way called upon to answer a charge under Section 211, I.P.C., though there was no order that he should be summoned to. answer a charge under Section 211, I.P.C.
3. On these facts we are of opinion that the conviction and sentence under Section 211 of the petitioner must be set aside. This order is made without any prejudice whatsoever to the adoption of any subsequent proceeding under Section 211, I.P.C., or any other section of the Indian Penal Code against the petitioner should it. appear after he had bean afforded an opportunity such as is hereinbefore referred to that his charges against Bhujendra, Nath Bhattacharjee are false. The Rule is accordingly made absolute. The petitioner will be discharged from his bail-bond.