Ross, J.This is an appeal against a conviction by the learned Assistant Sessions Judge of Muzaffarpur. The appellant Muhammad Yassin was charged with having on the 25th of October 1923 instituted criminal proceedings charging certain persons with the offences of rioting and murder knowing that there was no just or lawful ground for such proceedings. The case was instituted by way of information to the Police. The Police enquired into the case and reported that it was false; and the Sub-Inspector complained against the informant whereupon the Magistrate ordered that he should be summoned u/s 211 of the Indian Penal Code. The appellant was committed for the trial and has been sentenced to five years rigorous imprisonment.

2. It appears upon the record that on the 5th of November 1923, before the Police had submitted the final report, Muhammad Yasin filed a petition before the Magistrate complaining of the Police Investigation and praying that the case should be enquired into and the persons whom he accused summoned. Subsequently, when he was called upon by the Magistrate to show cause why he should not be prosecuted for instituting a false cage he again asserted that the case was true. These complaints were never investigated and he was not even examined on oath.

3. The contention of the learned Vakil who appears for the appellant is that inasmuch as the petition of the 5th November filed before the Magistrate was a complaint within the definition in the Cr. P.C. the offence, if any, became an offence which was committed in or in relation to a proceeding in Court; and consequently, a complaint in writing by the Court or by some other Court to which it was subordinate was a condition precedent to cognizance being taken of this offence u/s 211. Two authorities have been cited in support of this proposition. The first is the decision in Tayabullar v. Emperor 36 Ind. Cas. 845 : 43 C. 1152 : 24 C.L.J. 134 : 80 C.W.N. 1265 : 18 Cri. L.J. 13, where Mr. Justice Mukerji and Mr. Justice Sheepshanks distinguished the cases where there is an information to the Police only from those where there is also a complaint in Court. Their Lordships pointed out that a "A sanction is requisite in respect of an offence u/s 211 of the Indian Penal Code only when such offence has been committed in or in relation to any proceeding in any Court; no sanction is necessary when a false charge has been made to the Police and has not been followed by a judicial investigation thereof by a Court: The position is different where upon the Police report as to the falsity of the complaint, the complainant insists upon a judicial investigation; if he does so, he is deemed to have preferred a complaint to the Magistrate. If the Magistrate finds his case to be false, a sanction would be requisite u/s 195(1)(6) as the offence may be said to have been committed in a proceeding in a Court." The same view was taken in Brown v. Ananda Lal Mullick 30 Ind. Cas. 857 : 41 C. 650 : 20 C.W.N. 1347 : 18 Cri. L.J. 25 : 25 C.L.J. 59 where it was laid down that where an information to the Police is followed by a, complaint to the Court, based on the same allegations and the same charge, and such complaint has been investigated by the Court, the sanction or complaint of the Court itself u/s 195(1)(6) of the Code is necessary before the Court could take cognizance of an offence punishable u/s 211 of the Indian Penal Code in respect of the false charge made to the Police, on the ground that it was an offence committed in relation to a proceeding in Court. The decision in that case was arrived at independently of the decision in Tayebullas case 36 Ind. Cas. 845 : 43 C. 1152 : 24 C.L.J. 134 : 80 C.W.N. 1265 : 18 Cri. L.J. 13 to which at the end of the judgment, reference is also made.

4. The learned Assistant Government-Advocate seeks to distinguish these cases on the ground that the complaint in the present instance was not investigated by the Court. To my mind that cannot make any difference in favour of the prosecution. The complainant was entitled to have his complaint enquired into and the fact that no enquiry was made cannot be made a merit in the prosecution. The absence of an investigation cannot be made a ground of distinction. The point is that by making his complaint to the Court the informant has withdrawn the information from the category of mere Police proceedings and has raised it to the category of a proceeding in Court. This necessitates a complaint by the Court if the" informant is to be proceeded against. The matter is no longer in the hands of the Police but is within the cognizance of the Court itself. A further answer was suggested to this effect that the order of the Magistrate summoning the appellant was itself a complaint either within Section 195(1)(6) or within Section 476. of the Code. In my opinion this is not a tenable argument. A reference to the definition of "complaint" in the Code is a sufficient answer. And these proceedings were initiated by the Sub-Inspector of Police who made the complaint and on that complaint the Magistrate passed an order to summon the appellant. It is in my opinion impossible to construe that order passed on a complaint as being itself a complaint within the meaning of the Code. It follows, therefore, on the decision above referred to that the proceedings in which the appellant has been convicted were wholly without jurisdiction because the bar imposed by Section 195 has never been removed.

5. The conviction, therefore, cannot stand and must be set aside.

John Bucknill, J.

6. I agree.