Arthur Wilson, J.

1. Section 211, Indian Penal Code, enacts as follows:

Whoever, with intent to cause injury to any person,institutes, or causes to be instituted, any criminal proceeding against thatperson, or falsely charges any person with having committed an offence, knowingthat there is no just or lawful ground for such proceeding or charge againstthat person, shall be punished with imprisonment of either description for aterm which may extend to two years, or with fine, or with both; and if suchcriminal proceeding be instituted on a false charge of an offence punishablewith death, transportation for life, or imprisonment for seven years orupwards, shall be punishable with imprisonment of either description for a termwhich may extend to seven years, and shall also be liable to fine.

2. The question before us is whether the latter part of thesection applies to cases in which complaint has been made to the Police of anoffence falling within the description given, and into which the Police are bylaw authorised to enquire.

3. According to the Code of Criminal Procedure now in force,there are two modes in which a person aggrieved may seek to put the criminallaw in motion. He may make a charge, or in the language of the Code giveinformation, to-the Police (section 154). If the information discloses acognisable offence, the proper officer of Police may proceed to make aninvestigation; and if the result of that investigation is adverse to theaccused, he is, in due course, brought by the Police before a Magistrate. Allthis forms the subject of Chapter XIV of the Procedure Code. If the informationdoes not disclose a cognisable offence, the Police cannot take any step oftheir own authority. Secondly, a person aggrieved may lay a charge, or, as theCode calls it, a complaint, (section 191) before a Magistrate.

4. Whichever of these methods is adopted, the thing done bythe accuser is the same, that which is called in the one case givinginformation, in the other making a complaint. In each case the steps thatfollow are governed by the Criminal Procedure Code. In each the first steptaken by the accuser is ordinarily also the last, for from that time thecontrol of the investigation or enquiry passes out of his hands into those ofthe constituted authorities; subject to this, that if, after an informationbefore the Police, the result of their investigation is adverse to thecomplainant, he may renew his complaint to the Magistrate. The procedure byinformation to the Police is by far the more common course of proceeding,especially where any grave offence is alleged. A system similar to the presentin these matters was in force when the Penal Code was passed in 1860; it wasembodied in the First Procedure Code of 1861, and has been continued eversince.

5. In that state of things, if the latter part of Section211 had stood alone, there could probably have been no doubt that the words"if such criminal proceedings be instituted" applied no less to acase in which the criminal law is set in motion by information to the Policethan to one in which it is set in motion by complaint to a Magistrate. But thedoubt arises from the fact that the expressions "institutes criminalproceedings" and "falsely charges" occur in the first part ofthe section, and only the one expression such criminal proceedings beinstituted in the latter. And hence the argument arises that the Legislaturemust have meant different things when it spoke of "institutingproceedings" and "making a charge," and that only what fellwithin the former phrase was within the latter part of the section.

6. I agree in this reasoning in one sense and not inanother, I agree that we must take it that the Legislature did not regard thetwo phrases as coextensive in meaning, but considered that there were, or mightbe, cases to which the one would apply and not the other. But I do not think weare to suppose that the Legislature meant the phrases to be mutually exclusivein meaning, so that the instituting of criminal proceedings must be bysomething which is not a charge, and a charge must be something which is notthe institution of criminal proceedings. This cannot, I think, be for tworeasons. First, because there is no mode by which a private accuser caninstitute criminal proceedings except by making a charge; and if he does not doit by the charge, he never does it at all, to whatever length the proceedingsmay go. And secondly, because the last part of the section speaks of"proceedings instituted on a false charge."

7. It is not difficult to see various classes of cases whicheither do or probably may fall under one of the expressions used and not underthe other, and which the Legislature may well have had in view when it usedboth. Thus proceedings to compel any one to give security, by reason of ananticipated breach of the peace under Section 107, or because he is concealinghimself or has no ostensible means of subsistence under Section 109 of theProcedure Code are apparently criminal proceedings, but they do not necessarilyinvolve a charge of any offence. On the other hand, a charge to the Police of anon-cognizable offence may very possibly be a charge within the meaning of thesection, but could hardly be called the institution of criminal proceedings. Soa charge made to the Judge of a Civil Court, or to public officers of otherkinds, in order to obtain sanction to prosecute may well be a charge, but isnot the institution of criminal proceedings.

8. For these reasons, I think that a man who sets thecriminal law in motion by making a false charge to the Police of a cognizableoffence, institutes criminal proceedings within the meaning of Section 211 ofthe Penal Code; and that if the offence fall within the description in thelatter part of the section, he is liable to the punishment there provided.

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Karim Buksh vs. TheQueen-Empress (05.09.1888 - CALHC)