JUDGMENT
Jwala Prasad, J.
1. This application is directed against the order of the Magistrate, dated the 15th September 1920, passed under Section 476 of the Code of Criminal Procedure, directing the prosecution of the petitioner under Section 211, Indian Penal Code,
2. On the 9th August 1920, the petitioner informed the Sub-Inspector that one Persan Sahu thot one Chauri Mahton with his gun and that Chauri Mahton was wounded in his eye and other parts of the body and was lying in Persan Sahu’s house.
3. The Sub-Inspeetor enquired into the matter. He found that Chauri Mahton was wounded with the gun of Persan Sahu but that it was through an accident. He was. however, doubtful as to whether the information was lodged through personal ill feeling or at the instigation of one Oudh Behari Singh, or on account of misunderstanding on the part of the informant. He reported the case to be one of accident. The Sub-inspector did not report for any action against the petitioner.
4. On the 20th August the Sub-D ivisional Officer passed the following order : ” Enter mistake of fact.”
5. On the 21st August the Sub-Divisional Officer passed another order sailing upon the petitioner to show cause, on the 7th September 1920, why he should not be prosecuted under Section 211, Indian Penal Code.
6. The petitioner showed cause on the 7th of September by an application, stating that the information lodged by him was true and that it could be established by an enquiry. On that day the Magistrate asked him to prove his case, and adjourned the case to the 14th of September.
7. On the 14th September the Magistrate examined six witnesses including the petitioner. On the 15th September he examined Ohauri Mahton and passed the following order: “I am of opinion that a wilfully false information was lodged before the Police by Tiloki Mahton. It cannot be believed that Persan Sahu would intentionally aim his gun at Chauri Mahton in the presence of so many witnesses and shoot him. Tiloki’s complaint is dismissed under Section 203, Criminal Procedure Code. Draw up a proceeding under Section 476, Criminal Procedure Code, for the prosecution of Tiloki Mahton under Section 211, Indian Penal Code, and send it along with the record to Sadr Sub Divisional Magistrate for necessary action.”
8. It is obvious that there was no judicial proceeding before the Magistrate in which he could pass the order under Section 476 of the Code. The Magistrate was competent to take cognizance of an offence under Section 211, Indian Penal Code, against the petitioner if the Police report had disclosed facts constituting the said offence: vide Section 190(1)(b) of the Code of Criminal Procedure. This the Magistrate did not do, apparently because the Police report did not clearly recommend the prosecution of the petitioner under Section 211, nor did it disclose facts establishing the offense against the petitioner. It wan doubtful as to whether the report of the petitioner was due to his misunderstanding or to any ill feeling or instigation. The Magistrate was not, therefore, satisfied as to there being sufficient material in the Police report upon which he could straightaway take cognizanse of the offense against the petitioner. As a matter of fact, when the Police report was put up before him, in the First order passed thereon on the 20th August, he simply directed the entry to be made with regard to the case as one of a ” mistake of a fact.” No cognizance was, therefore, taken against the petitioner upon the Police report under Section 190 (1)(b). There is no provision in the Code of Criminal Procedure empowering the Magistrate to hold what may be sailed a judicial or preliminary enquiry, unless there is a complaint lodged before him under Section 190(1)(a) of the Code. Section 202 of the Code of Criminal Procedure, under which alone an enquiry can be made, relates exclusively to complaints. No such enquiry san be made when cognizance is taken under Clauses (b) and (c) of Section 190 of the Code. Therefore, the enquiry started by the Magistrate, directing the petitioner to show cause why he should not be prosecuted, was not a judicial proceeding and his order under Section 476 in the course of or after the enquiry is, therefore, without jurisdiction. If the informant, after the Police report, had himself gone to the Magistrate and lodged a complaint impugning the Police report, then certainly his petition would have been a complaint and an enquiry started thereon would have been under Section 202 of the Code, which would have given jurisdiction to the Magistrate to pass an order under Section 476. But the petitioner did not move the Court, he was rather forced by the order of the Magistrate, dated the 21st August, to show cause why he should not be prosecuted under Section 211, Indian Penal Code. The petition filed in showing cause is not a complaint. The complainant was not examined forthwith after filing the petition on the 7th of September. The petition was not, therefore, treated as a complaint. In fact, it could not be so treated, The fact that the petitioner was examined as a witness, among other witnesses sited by him, on the 14th September, is not an examination for the purpose of taking cognizance of the offense, under Section 200 of the Code Therefore, there was no complaint before the Magistrate. The learned Sessions Judge is wrong in construing the petition of the 7th September as a complaint. It does not even attack the Police enquiry, It is an application simply showing cause why the petitioner stood in the eyes of the Magistrate as a person answerable to him for certain accusations for which the Magistrate thought there was ground for enquiry The order of the Magistrate under Section 476 of the Code of Criminal Procedure directing the prosecution of the petitioner must, therefore, be set aside. Vide Sarba Mahton v. Emperor (1) 20 Ind. Cas. 211 : 17 C.W.N. 824 : 14 Cr. L.J. 387.
9. Upon the Police report no case against the petitioner was disclosed. Chauri Mahton had received wounds by the gun shot which belonged to Persan Sahu, the person against whom the petitioner lodged the information. The Sub-Inspector says that it is possible that the petitioner made the statement on account of misunderstanding, Therefore, it cannot be said that there was no ” just or lawful ground” for the report made by the petitioner to the Police. This is an essential element for an offence under Section 211. The order of the Magistrate on the Police report to enter the case as a mistake of fact is, therefore, the only order that could be passed in the circumstances of the case.
10. There is no ground upon merits also to take any action against the petitioner. The Rule is made absolute and the proceeding is quashed.