The main legal point established in the judgment is the interpretation of the word 'charge' and the phrase 'criminal proceeding' in S.211 of the Indian Penal Code, and the distinction between the two parts of the section.

1. The question we have to answer for deciding this case is, in the words of the referring order, "Does setting the criminal law in motion by making a charge to the police of a cognizable offence against a

person amount to the institution of criminal proceedings against that person within the meaning of S.211 of the Indian Penal Code?". It is a question with regard to which there seems to be considerable conflict of authority.

2. The two accused persons in this case, it is alleged, gave information to the police charging four named persons with the offence of robbery punishable under S.394 of the Indian Penal Code. The police investigated the charge and referred it as false. The accused did not take the matter any farther by instituting a complaint in court, and they were prosecuted for an offence under the second part of S.211 of the Indian Penal Code. A preliminary inquiry was held under Chapter XVIII of the Criminal Procedure Code and the accused were committed to Sessions on the finding that there was a prima facie case against them for an offence falling under the third paragraph of the entry in respect of S.211 of the Indian Penal Code in Schedule II of the Criminal Procedure Code and therefore an offence exclusively triable by a Court of Session. When the case came on for trial before the Assistant Sessions Judge, to whom it had been made over by the Sessions Judge, a preliminary objection was taken on behalf of the accused that the offence alleged against them fell only within the first part and not within the second part of S.211 of the Indian Penal Code. Therefore, the case was triable only by a magistrate of the first class and not by the Court of Session. The learned Assistant Sessions Judge took the view that there was some substance in this contention, but he nevertheless decided to proceed with the trial because he had neither the power to quash the commitment nor the power to make a report to the High Court under S.438 of the Criminal Procedure Code. However, he wrote a very long order in the matter and sent a copy of it to the Sessions judge who has made a report which has been numbered as Criminal Reference No. 50 of 1964. The 1st accused in the case has come up in revision - his petition is Criminal Revision Petition No. 408 of 1964 - and has prayed that the order of commitment be quashed.

3. We may at the outset observe that both the reference and the revision petition appear to proceed on the mistaken assumption that, because an offence falling under the first part of S.211 of the Indian Penal Code is shown in the second schedule of the Criminal Procedure Code as triable by a Presidency Magistrate or Magistrate of the first class with no mention made of a Court of Session, a Court of Session has no jurisdiction to try such an offence. This, of course, is not so, for, the offence being one under the Indian Penal Code, S.28 of the Criminal Procedure Code expressly lays down that it may be tried by a Court of Session whatever be the court by which the offence is shown in the eighth column of the Second Schedule to be triable. The real point is something else. The maximum sentence that can be imposed for an offence under the first part of S.211 of the Indian Penal Code being imprisonment for two years which is within the competence of a magistrate of the first class to impose, a magistrate holding an inquiry into such an offence cannot possibly reach the opinion that the case ought to be tried by a Court of Session so as to attract S.207 of the Criminal Procedure Code and, with it, the provisions of Chapter XVIII of the Code. And that, we think, would make a commitment of such a case liable to be quashed under S.215 read with S.439 and, if necessary, S.561-A of the Criminal Procedure Code whether the commitment be under S.213 or under S.207-A (10). In this case, however, we are satisfied that the offence alleged against the accused comes under the second part of S.211 of the Indian Penal Code and is