1. This rule was issued upon the Chief Presidency Magistrate to show cause why the conviction of the petitioner under Section 211, Penal Code, and the sentence of imprisonment and the fine passed upon him should not be set aside. The petitioner filed a complaint before the Additional Chief Presidency Magistrate under Sections 5 and 6, Sarda Act, Act 11 of 1929 against two persons who, as he alleged, were responsible for bringing about a child marriage within the meaning of that Act. This com plaint was enquired into in the manner directed by Section 10 of the Act, and was dismissed, the Magistrate declaring that it was a false complaint. Shortly afterwards the learned Magistrate directed a complaint to be lodged under Section 211, Penal Code, against the present petitioner. Now the only specific finding arrived at by the learned Presidency Magistrate, who tried the present case, is that the petitioner brought a false complaint under Sections 5 and 6 of the Act (Act 11 of 1929) before the Additional Chief Presidency Magistrate. On that finding the petitioner has been convicted under Section 211, Penal Code, and sentenced as mentioned above.
2. It is perfectly clear that this finding is not sufficient to support the conviction under 8. 211. The elements of that offence are firstly that a false charge should be brought, secondly that the person bringing it should know that there was no just or lawful ground for such proceeding or charge and thirdly that it should be brought to cause injury to the persons against whom it was made. The only finding recorded in present case is that a false complaint was brought. Moreover, in view of the nature of the offence originally alleged by the petitioner to have been committed, it was essential that trying Magistrate should find definitely that either or both of the contracting parties to the marriage, which admittedly took place were infants within the meaning of the Sarda Act, that is to say, that the bridegroom was under the age of 18 or that the bride was under the age of 14. Although it would appear from the judgment that the learned Magistrate was of opinion that the bridegroom was 18 years and 6 months old and that the bride was 14 years old, there is no finding to that effect, further, although the ages of the contracting parties to the marriage were, even according to the prosecution just above the limits prescribed by the Act, there is no discussion as to whether in the particular circumstances the petitioner could have had any just or lawful ground for believing that an offence under the Act was actually committed. On the other hand, it seems perfectly clear from the evidence that a prima facie case of attempted extortion has been established against the petitioner.
3. In the result this rule must be made absolute, the conviction of the petitioner under Section 211, Penal Code and the sentence passed upon him must be set aside and we direct that proceedings on a charge of attempted extortion be taken against him before some other Magistrate. The petitioner must surrender before the Chief Presidency Magistrate.
4. I agree.