EMPEROR Vs. APAYA TATOBA MUNDE

JUDGEMENT

(1.) This is an application in revision and the facts which underlie it are these. The present applicant brought before the police a charge of theft against one Khanya, alleging that this Khanya had stolen a sheep and a goat belonging to the applicant. Khanya was sent for trial before a Magistrate but the Magistrate discharged him, holding that the evidence was insufficient to support the conviction. When, however, an application was made to that Magistrate that the present applicant should compensate Khanya for having made a frivolous or vexatious charge against him, the Magistrate declined to accede to this application, holding that there was nothing to satisfy him that the applicant s complaint, even though he had failed to substantiate it by evidence, was made, mala fide or was frivolous or vexatious.

(2.) Subsequently proceedings were taken against the present applicant and he has now been convicted under Section 182 of the Penal Code.

(3.) The first point taken by the learned Counsel on his behalf is that by virtue of the ruling in Empress v. Arjun (1882) I.L.R. 7 Bom. 184 the charge against the present applicant should have been under Section 211, and did not properly lie under Section 182. The distinction is important, because Section 211 requires magisterial sanction. No such sanction has been received for the prosecution, and it is . fairly obvious on the facts that no such sanction would have been given if it had been sought. It appears to me that Mr. Weldon is right in his contention that, assuming the state of facts upon which the prosecution relied, the charge to be preferred against the applicant should have been under Section 211 and not under Section 182.