1. This Rule arises in the following circumstances: It appears that a burglary is alleged to have been committed in the house of the petitioner on the night of the 6th February last. The petitioner lodged an information with the Daulat-kha police on the morning following the night of the alleged occurence suspecting three persons: Elahi Buksh, Rahim Buksh and Hadu. The Sub-Inspector of Daulat-kha who investigated the case reported it to be false and asked for sanction for the prosecution of the petitioner under Section 182, I.P.C. The petitioner produced his witnesses before the investigating officer and he states that he was altogether ignorant of the result of the investigation until the warrant was issued against him under Section 182, I.P.C. The petitioner further states that on receipt of the warrant he appeared in Court and filed a naraji petition against the report of the police which was put up before the Subdivisional Officer of Bhola on 15th March 1932. The Sub-divisional Officer apparently did not entertain the naraji petition and dismissed the complaint, being of opinion that the petitioner
will have ample opportunity to adduce evidence to prove his case if it is true when he enters into his defence under Section 182, I.P.C.
2. He accordingly did not see any reason to hold any inquiry into the naraji petition. Ultimately the Subdivisional Officer convicted the accused, they petitioner, under Section 182, I.P.C., and sentenced him to pay a fine of Rs. 40. The petitioner asked for a reference to this Court before the Sessions Judge of Bakargunj. The learned Sessions Judge was not prepared to make the reference asked for. It is argued in support of this Rule that no processes should have been issued against the petitioner before the learned Magistrate had disposed of the naraji petition filed by the petitioner against the report of the police officer for prosecuting him under Section 182,1. P.C. In support of this contention the learned advocate for the petitioner has referred to two cases: Abdulla v. Emperor : AIR1932Cal287 and Charles John v. Emperor : AIR1932Cal550 . Both these cases lay down that where there is a naraji petition by the complainant objecting to the police report that his case is false, no process can be issued against him either under 8. 211 or under Section 182, I.P.C., before that petition has been inquired into. It is true that in both these cases the accused moved this Court as soon as process was issued against him. He did not wait till the trial of the case under 8. 182 had terminated. That circumstance no doubt distinguishes this case from the two cases cited; but it is pointed out by Mr. Talukdar that his client did all that was in his power to do and that he put in the naraji petition before the Subdivisional Officer as soon as he came to Court in answer to the warrant under Section 182, I.P.C.
3. It is true that he came after a month as the learned Judge has pointed out in rejecting the application for reference and that he really pressed this point as soon as he came to Court and having regard to authorities it was the duty of the Subdivisional Officer to have stayed the proceedings under Section 182, I.P.C., and to have inquired into the petitioner's naraji petition and to dispose of it. At, the first blush it appeared to me that, having regard to the course of events, namely the determination of the trial under Section 182, I.P.C, the petitioner had not been prejudiced. It has been pointed out however and there is some force in this, that the petitioner was in this position of disadvantage when proceedings were started against him under Section 182, I.P.C., namely he was in the position of an accused and could not make any statement on oath and was not in the advantageous position of the complainant when he could give his statement on oath. That is a circumstance which no doubt requires to be considered and it is to this extent that the accused was prejudiced and the course taken in the Court below was prejudical to the trial of the case.
4. In these circumstances I set aside the conviction and sentence of the petitioner and direct that the Subdivisional Officer should in the first instance inquire into the naraji petition and after he had disposed of that petition take proceedings under Section 182 if he thinks it necessary. The Rule is made absolute and the fine if paid must be refunded.