The prosecution should be for the graver offense when a complaint sets forth facts disclosing both a minor offense and a graver offense. The lack of a written complaint by the Magistrate can be a legal bar to taking cognizance of the graver offense.

Sundaram Chetty, J.

1. This is a criminal revision petition filed by the accused against the conviction and sentence passed by the Subdivisional Magistrate,. Coonoor, under Section 182, I. P. C, imposing. on him a fine of Rs. 25. The Subdivisional Magistrate took cognizance of this case on a complaint filed by the Sub-Inspector of Police against the accused,. In that complaint it is alleged that the accused gave false information to the Sub-Inspector of Police, Wellington, that three persons, namely, P. Ws. 3, 4 and 5, had broken the seal and lock of a temple in Karteri and entered into the temple. After some investigation, the police reported to the Stationary Sub-Magistrate that the case was false. Thereupon, the. present accused pressed the same complaint before the Stationary Sub-Magistrate, Coonor, requesting the Court to make a judicial investigation of the charge. Subsequently the Magistrate discharged the accused persons in that case under Section 253 (2), Criminal P. C, finding the charge against them to be groundless. Embodying these facts in the present complaint and alleging that by reason of these circumstances the accused has committed an offence under Section 211, I. P. C, the present prosecution was launched by the Sub-Inspector of Police against the accused.

2. A preliminary objection was taken on behalf of the defence before the Magistrate that in the face of the facts alleged in the complaint, the offence is one under Section 211, I. P. C, committed in or in relation to a proceeding in Court and therefore the Magistrate could not take cognizance of the offence in the absence of a complaint in writing of the Stationary Sub-Magistrate, Coonoor. Overruling this objection, the learned Magistrate considered that the case should be tried under Section 182, I. P. C., and accordingly tried the case which resulted in the conviction of the accused.

3. It is argued before us that the facts as set forth in the complaint clearly bring the offence under Section 211, I. P. C., alleged to have been committed in or in relation to a proceeding in a Court, and that being so, the learned Subdivisional Magistrate had no jurisdiction to take cognizance of this case in the absence of a complaint in writing of the Sub-Magistrate of Coonoor as required by Section 195 (1) (b), Criminal P. C. In the first place, it must be observed that, if regard be had to the facts disclosed in the present complaint, the charge against the accused is not simply for giving false information to the police (Section 182, I. P. C), or making a false charge against some parsons before the police (Section 211, I. P. C.), but it is also distinctly stated that the false information to the police was followed by a complaint to the Stationary Sub-Magistrate who took cognizance of the case and eventually discharged the accused holding the charge against them to be groundless. When a complaint sets forth certain facts disclosing a minor offence and also a graver offence, the prosecution should ordinarily be for the graver offence. If in entertaining such a complaint there is a legal bar to taking cognizance of the graver offence by reason of the want of a complaint by the Magistrate, the legal consequence should not be allowed to be evaded by confining the case to the miner offence alone and disposing of it accordingly.

4. A similar question was considered by Curgenven, J. in a recent case reported in Perianna Muthirian v. Vengu Ayyar A.I.R. 1929 Mad, and after a review of the case law on the point that learned Judge has held, that if a graver offence is disclosed from the facts stated in a complaint, the condition fixed in Section 195 (1) (b), Criminal P. C., for taking cognizance of such a case cannot be evaded by electing to name the offence under another section which is more general and leas grave. The course which the learned Subdivisional Magistrate seems to have adopted in the present case is open to the objection pointed out by Curgenven, J. in the