1. It appears to us that there is no legal foundation for the trial of Sokhina Bibi under Section 211[Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person, or falsely charges any person with having commited an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both ; and if such criminal proceeding be instituted, on a false charge of an offence punishable with death, transportation for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. False charge of offence made with intent to injure,] of the Indian Penal Code. Sokhina Bibi lodged a complaint under Sections 354[Whoever assaults or uses criminal force to any woman, intending to outrage, or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description, for a term which may ex tend to two years, or with fine, or with both. Assault or use of criminal forc to a woman with intent to outrage her modesty.] and 376[Whoever commits rape shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Punishment for rape.] coupled with Section 511, in the Court of the Extra Asssistant Commissioner. After her examination, the Court, under Section 146 of the Code of Criminal Procedure, directed a local enquiry to be made by a competent police officer. This officer, a Sub-Inspector, submitted a report, in which he expressed the opinion that the charge preferred was false, and that the complainant should be prosecuted for making a false complaint. Thereupon the Extra Assistant Commissioner passed the following order:-'Let the papers be recorded as false, and let the papers be sent to the Deputy Commissioner for proper orders as regards instituting a case against the complainant under Sections. 211 and 182[Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause such public servant to use the lawful power of such public servant to the injury or annoyance of any person, or to do or omit any think which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. False information, with intent to cause a public servant to use his lawful power to the injury of another person.] Upon this the Deputy Commissioner, on the 3rd December, passed an order to the effect that in his view no notice ought to have been taken of the complaint owing to the character of the complainant; but as an enquiry had taken place he would allow the petitioner to be prosecuted, if the District Superintendent of Police wished it. The District Superintendent of Police expressed a wish that a prosecution should follow. Upon this the Deputy Commissioner, on the 20th December, ordered the prosecution.
2. It seems clear to us that there has been no proper adjudication by the Extra Assistant Commissioner of the complaint preferred by Sokhina Bibi. On the receipt of the report of the Sub-Inspector, he should have communicated its contents to the complainant and afforded her an opportunity, if she so desired it, of producing the witnesses named in her complaint, or of giving such other proof in support of her complaint as she might think proper. Having thus put the complainant to the proof and given her the opportunity of substantiating her complaint, the Extra Assistant Commissioner should have proceeded to decide the case. This course he has not adopted at all, and as Sokhina Bibi was prepared to give evidence in support of her complaint, the Deputy Commissioner had, we think, no power to direct a prosecution under Section 211 to be instituted. This is in accordance with the rulings of this Court in Syed Nissar Hossein v. Ramgolam Singh (25 W.E., Cr. Bui., 10) and in Government v. Karimdad I.L.B., 6 Cal., 496. It also strikes us as improper that this prosecution should have been directed by the Deputy Commissioner contrary to his own expressed opinion as to its propriety, and solely in deference to the wishes of the District Superintendent at Police, whose subordinate had been complained against.
3. We have to observe, with reference to the Assistant Commissioner's explanation as to the examination of the complainant's witnesses, that their examination by the Sub-Inspector of Police when enquiring into the original complaint, and their subsequent examination in the present case as witnesses for the defence before himself could not give the prisoner the opportunity of proving that the original complaint was true, to which she was entitled before she could legally be prosecuted for making a false charge.
4. We, therefore, quash the proceedings, which have resulted in the conviction of Sokhina Bibi under Section 211, and setting aside the sentence of eighteen months' rigorous imprisonment, direct her release.