1. The facts which have given rise to the present rule wore briefly these: On 29th July 1930 the petitioner lodged an information before the police making some allegations against Sheikh Aziz and several other persons. Two days later, viz., on 31st July, the petitioner filed a petition before the Magistrate in which his prayer was that the police investigation might be expedited. The ultimate result of the investigation was that the case was reported by them to be false. Thereupon on 26th August 1930, the Magistrate directed the investigating officer to make a formal complaint against the petitioner under Section 211, I. P. O. On 1st September 1930 a formal complaint was accordingly, made by the police-officer and process was issued against the petitioner under Section 211 and served on him on the 12th. On the 13th the petitioner filed an application before the Magistrate impugning the report of the police and praying that process might be issued against the persons he had accused before. On these facts the petitioner obtained a Rule upon the District Magistrate to show cause why the order of the Deputy Magistrate dated 1st September 1930 summoning him under Section 211, 1. P.C., should not be set aside.
2. The Rule was issued on two grounds. The first ground was that the Magistrate was wrong in law in having issued process against the petitioner under Section 211 without having dismissed the petitioner's application, dated 31st Duly 1930, under, Section 203, Criminal P.C. This ground in our opinion has no, substance whatsoever. The application which the petitioner filed before the Magistrate on 31st July 1930 was only an application to have the police investigation expedited and it could not possibly come under the category of a complaint as the term has been defined in the Code.
3. The second and the more substantial ground on which the Rule was obtained was that the learned Magistrate ought to have given an opportunity to the petitioner to show cause why he should not be prosecuted under Section 211 before issuing process against him under that section. From what has been stated above it would appear that the petitioner never knew, before he was actually served with the process under Section 211, what the report of the police on his information before them had been. The summons on him was served on the night of the 12th and by filing an application before the Magistrate on the next day, he impugned the police report. The learned Magistrate in his explanation has tried to meet this point by saying that this application was filed by the petitioner after process had been issued against him. But having regard to what happened to the petitioner's information to the police, the petitioner had no opportunity of impugning the report submitted by the police at an earlier date. It has been held that ordinarily a person ought to be given an opportunity to show cause before he is ordered to be prosecuted under Section 211. In the present case, that opportunity the petitioner had not before process was issued against him and if his attempt to take that opportunity came after the process had been issued against him, it was no fault on his part that he was late by one day. Having regard therefore to the facts of the present case, we are of opinion that this is a case in which we ought to interfere. We would accordingly make the Rule absolute and quash the proceedings that have been started against the petitioner. We would desire to add however that i the authorities consider it necessary to take fresh proceedings against the petitioner after giving him an opportunity to show cause, the order which we have passed in the present Rule will not operate as any bar to such proceedings.