Judgment : The petitioners are accused in C.C.No.198 of 1988 on the file of the Chief Judicial Magistrate, Kanyakumari at Nagercoil. On a private complaint instituted by the respondent, they were summoned by the trial Magistrate to answer a charge for an offence under Sec.500, I.P.C. The summons issued mentions only a single offence, though the complaint had been filed for offences under Secs.182, 211 and 500 read with 109, I.P.C. however, even initially, it is brought to my notice by Mr.Byravan, learned counsel for the respondent, by producing a certified copy of the diary extract made on 10.11.1988 relating to this calendar case on the file of the trial Magistrate which reads as follows: “Complainant present witnesses absent. Enquiry under Sec.202,Cr.P.C. concluded.00 Taken on file for offences under Secs.182, 211 and 500, I.P.C. On process, issue summons to the accused. Adjourned to 21.11.1988. Bind over the complainant.” Indicating that apart from the offence under Sec.500, I.P.C. mentioned in the summons, the complaint has been taken on file for offences under Secs.182 and 211, I.P.C. The original records which were called for and were received do not contain the calendar extract, and the copy of the complaint on which certain endorsements have been made does not disclose the offences for which the Magistrate had taken cognizance of the complaint. 2. The basis for this prosecution is as follows: The respondent lives in Door No.64-B, Nesa Illam, Vadassery Village at Nagercoil. Petitioners 1 and 2 are constructing a house behind door No.64-B. Since the sun shade in the house of petitioners 1 and 2 encroached on the respondent’s property, petitioners 1 to 3 demolished the compound wall and the cattle shed belonging to the respondent, resulting in a lose of Rs.5,000/-to the latter. In view of the aforementioned dispute, the respondent filed a suit before the District Munsif, Nagercoil, against petitioners 1 to 3. In view of the aforementioned dispute, the respondent filed a suit before the District Munsif, Nagercoil, against petitioners 1 to 3. It is the allegation in the complaint that due to this animosity, with a vengeance actuated by malice as a result of preplanning by petitioners 2 and 3 with the help of petitioners 4 and 5 through the first petitioners, they had a complaint preferred against the respondent before the Central Crime branch of the Nagercoil police station, resulting in Crime No.133 of 1988 being registered against him for offences under Secs.379 and 457, I.P.C. The further allegation in the complaint is that the first petitioner at the instigation of petitioners 2 to 5, knowing fully well that the averments in the complaint were contrary to truth, had still preferred the complaint, utilising the services of her father, the third petitioner, who is a Stenographer in the Police Department. The complaint further narrates that since the offences alleged were non-bailable, apprehending arrest, he had to hide himself before he could get himself released on anticipatory bail. According to the complaint, the allegation in the F.I.R., in Crime No.133 of 1988, that solely he was suspected to be the thief with the help of his henchmen, was not only false but was false to the knowledge of the first petitioner. The imputations had been made out of malice, solely with a view to defame the respondent. In the sworn statement apart form narrating the prior disputes and the pending civil litigation, the complainant had deposed that, on the day occurrence, after the F.I.R. was registered, in his absence, the police officials came to his house and the third petitioner told the persons who had gathered that he will teach a lesson to the respondent by keeping him in jail at least for a month. This answer by the third petitioner was to an enquiry as to what had happened. Soon thereafter, the police officials left the scene, after directing the wife of the respondent to send her husband to the police station on his arrival. 3. This answer by the third petitioner was to an enquiry as to what had happened. Soon thereafter, the police officials left the scene, after directing the wife of the respondent to send her husband to the police station on his arrival. 3. This petitioner under Sec.482, Cr.P.C. seeks to have the proceedings in C.C.No.198 of 1988 on the file of the Chief Judicial Magistrate, Kanyakumari at Nagercoil, quashed on the ground that the averments made in the complaint to the concerned police to facilitate action, are absolutely privileged and hence this prosecution would be an abuse of the process of Court. It is further urged that when the first petitioner had confined herself to report to the concerned Authority, the facts known which evoked suspicion, leaving the matter to be investigated, especially when there was no specific accusation or imputation against the respondent, there could be no malice or bad fifth and in any event the first petitioner would be protected by Exception 8 to Sec.499,I.P.C. 4. Mr.K. Mohanram, learned counsel for the petitioners, reiterates the aforementioned grounds taken in the petition for quashing. 5. Mr.S. Byravan, learned counsel for the respondent, contends that complaint filed to the police was not absolutely privileged and there could be no good faith when the first petitioner and others knew well that the complaint was false. At this stage, it is better to refer to the averments in Crime No. 133 of 1988, which is the subject matter of this complaint for defamation. The F.I.R. had been preferred by the first petitioner, who is the wife of the second petitioner and daughter of the third petitioner, at the Central Crime Branch, Nagercoil, on 7.4.1988 at 2 p.m. The complaint states that she and her husband, who is working in the Neasamoni Transport Corporation, were constructing a house at Bright Street, Nagercoil, which was hearing completion. The wiring and plastering work was going on. When she went to the scene house at 8 a.m. on 7.4.1988, she was surprised to notice that the new Godrej lock which was fitted to the house, wherein wiring material, copper wire and the accessories of the mason had been kept under lock and key, was broken and all articles worth Rs.2,000/- had been stolen. When she went to the scene house at 8 a.m. on 7.4.1988, she was surprised to notice that the new Godrej lock which was fitted to the house, wherein wiring material, copper wire and the accessories of the mason had been kept under lock and key, was broken and all articles worth Rs.2,000/- had been stolen. The complaint further proceeds to stale that the respondent who was on inimical terms, due to dispute regarding compound wall, had challenged them earlier by threat of civil and criminal actions, while offering to purchase the site by directing them to vacate. The pendency of the civil suit is mentioned and the complaint ends with the following sentences: “So, I strongly suspect that this Sathiadoss (respondent) is solely responsible for this theft with the help of his henchmen. As my husband G.Sam Jaya raj is away on duty, I am submitting this petition.” 6. Both the counsels have referred to various authorities to seek support for their respective propositions. The main question that will have to be considered is whether the averments made in a complaint to a police officer will be absolutely privileged. Arguments were also advanced regarding proof of publication and the applicability of the exceptions, but both of them may not loom large for consideration, for, on the facts of this, case, in the event of the complaint to the police not being absolutely privileged, these may be matters of evidence which will have to be appreciated by the trial Court during the Course of the trial. 7. In K.P.S. Ponpandian v. Chinnasamy, 1984 T.L.N.J. 435, K.M. Natarajan, J., while considering a similar petition to quash the prosecution instituted for defamation, after quoting a few authorities on the question whether the complaint given to the police was absolutely privileged, held that, on the basis of the allegations in the complaint in that case, there was absolutely no malice or ill-will attributed, necessitating the ordeal of a trial being undertaken by the accused, which could be nothing but harassment and abuse of process of Court. Though a specific finding had not been given as to whether a complaint given to the police could be absolutely privileged, the tenor of the decision makes it very clear that it will be deemed to be so in view of the authorities referred to. Though a specific finding had not been given as to whether a complaint given to the police could be absolutely privileged, the tenor of the decision makes it very clear that it will be deemed to be so in view of the authorities referred to. The learned Judge had made reference to the following decisions: (i) Ramdass v. Samu Pillai, (1969)1 M.L.J. 338, wherein Alagiriswami, J. had observed that a complaint to the police officer from its very nature as a statement which the complainant has prepared later, if called upon to do so, to substantiate upon oath, is absolutely privileged and no action for defamation in respect thereof is maintainable. (ii) Subba Rao v. Venkatachalapathy, (1938)2 M.L.J. 307: 178 I.C. 478: A.I.R. 1938 Mad. 904, where Panduranga Rao, J., held that presentation of petition to a Sub Inspector of Police making certain allegations alleged to be false would amount if at all to an offence under Sec.182 or Sec.211 and not under Sec.500, I.P.C. (iii) In re., P.Ramaswami Mudaliar, 1938 M.L.J. 810, wherein it was held that, if prima facie statements had been made on a privileged occasion under Sec.161,Cr.P.C, they would certainly come within a Exception 9 to Sec.499, I.P.C. (iv) Bapalaland Co. v. Krishnaswamy Iyer, (1940)2 M.L.J. 556 : 195 I.C. 24: I.L.R. 1941 Mad. 302: A.1.R 1941 Mad. 26, wherein it was observed that a complaint to a police officer from its very nature as a statement which the complainant is prepared later, if called upon to do so, to substantiate upon oath is absolutely privileged, (v) In re. Muthusamy Naidu, I.L.R. 37 Mad. 110, wherein a Bench of this Court held that a defamatory statement in a complaint to a Magistrate was absolutely privileged. (vi) Criminal Appeal No.687 of 1979, wherein Maheswaran, J. had taken the view that if the allegations were found to be false, they will only disclose an offence of giving false information to a public officer or of making a false accusation and will not amount to defamation. 8. Alagiriswami, J. In Ramdass v. Samu Pillai, 1984 T.L.N.J. 435 and referred to Bapalal and Co. v. Krishnaswamy Iyer, (19400)2 M.L.J. 556: A.I.R. 1941 Mad. 26 decided by King, J., sitting singly, and Vettappa Kone v. Muthukaruppa, A.I.R. 1941 Mad. 8. Alagiriswami, J. In Ramdass v. Samu Pillai, 1984 T.L.N.J. 435 and referred to Bapalal and Co. v. Krishnaswamy Iyer, (19400)2 M.L.J. 556: A.I.R. 1941 Mad. 26 decided by King, J., sitting singly, and Vettappa Kone v. Muthukaruppa, A.I.R. 1941 Mad. 538 decided by Abdur Rahman, J., silting singly, and took the view, concurring with them, that a complaint to police officer was absolutely privileged. A mention is made that both King, J. and Abdur Rahman, J., had referred to an earlier Bench decision of this Court in Sanjeevi Reddi v. Koneri Reddi, I.L.R. 49 Mad. 315, which Courts Trotter, C.J. and Viswanatha Sastri, J. took the view that statement made in a complaint to a Magistrate under Sec.107, Cr.P.C. and repetition of the same before a Police Officer to whom the Magistrate referred the complaint for enquiry and report are absolutely privileged and no action for defamation in respect of such a statement was maintainable. Alagiriswami, J., takes note of the decision of this Court In re. Muthuswamy Naidu, I.L.R. 37 Mad. 110 referred to by Viswanatha Sastri, J., in Sanjeevi Reddy v. Koneri Reddi, I.L.R. 49 Mad. 315 while discussing the claim of privilege in respect of statements made to police in the light of the observation of Seshagiri Aiyar, J., In re. Kakimara Anjaneyalu, 35 I.C. 813. 9. In Sanjeevi Reddi v. Koneri Reddi, I.L.R. 49 Mad. 315 a Division Bench of this Court referred to and followed the dicta laid down in In re. Muthuswamy Naidu, I.L.R. 37 Mad. 110. The Division Bench in the said case observed: “We do not think that a statement in a complaint which initiates a proceeding should be held to be entitled to less privilege than other statements made by parties in the subsequent stages of the proceedings”. However, Viswanatha Sastri, J., observed that the question whether there was any privilege in the case of a statement made to Sub Inspector of Police was not free from difficulty, on the face of the ruling of Seshagiri Aiyar, J., in In re. Kakimara Anjaneyalu, 35 I.C. 813 to the effect that rule of law that parties before the Court are absolutely privileged cannot be extended to the case of complaints to a police constable the learned Judge has further quoted Chunilal v. Narasinha Dhas, I.L.R. 40 All. Kakimara Anjaneyalu, 35 I.C. 813 to the effect that rule of law that parties before the Court are absolutely privileged cannot be extended to the case of complaints to a police constable the learned Judge has further quoted Chunilal v. Narasinha Dhas, I.L.R. 40 All. 341, wherein the Full Bench held that civil and criminal law and procedure are independent of each other, while considering the question of privilege in a prosecution under Sec.499, I.P.C. 10. None of the above cases refer to the decision of a Full Bench consisting of five judges, of this court in Thiruvengada Mudali v. Thirupura Sundani Animal, A.I.R. 1926 Mad. 906, wherein Coutts Trotter, C.J., who was a party to the Division Bench dicta laid down in Sanjeevi Reddi v. Koneri Reddi, I.L.R. 49 Mad. 315, had concurred with the unanimous view of the Full Bench that complainant making libellous statement in his complaint is not absolutely projected so far as criminal proceedings are concerned. This Full Bench decision overrules the decision in In re. Muthusamy Naidu, I.L.R. 37 Mad. 110, relied on in Sanjeevi Reddi v. Koneri Reddi. I.L.R. 49 Mad. 315. This Full Bench also overrules the decision in In re. Venkata Reddi, I.L.R. 36 Mad. 216 which was the basis for the rendering of the view in In re. Muthusamy Naidu, I.L.R. 37 Mad. 110. The Full Bench in Thiruvengada Mudali v. Tirupura Sundari Animal, A.I.R. 1926 Mad. 906 has referred to the decision of another Full Bench consisting of five Judges in Gopal Naidu and another v. Emperor, A.I.R. 1923 Mad. 523, wherein the view expressed was that English common law cannot be invoked, where a statute is expressly set to codify the law. In the view of the Full Bench in Thiruvengada Mudali v. Thirupura Sundari Ammal, A.I.R. 1926 Mad. 906, the need for reconsideration of In re. Venkata Reddy, I.L.R. 36 Mad. 216 and In re. Muthusamy Naidu, I.L.R. 37 Mad. 110, arose due to the rendering of the dicta in Gopal Naidu and another v. Emperor, A.I.R. 1923 Mad. 523. In view of the authoritative and binding nature of the pronouncement of the five member Full Bench of this Court in Thiruvengada Mudali v. Thirupura Sundari Ammal, A.I.R. 1926 Mad. 216 and In re. Muthusamy Naidu, I.L.R. 37 Mad. 110, arose due to the rendering of the dicta in Gopal Naidu and another v. Emperor, A.I.R. 1923 Mad. 523. In view of the authoritative and binding nature of the pronouncement of the five member Full Bench of this Court in Thiruvengada Mudali v. Thirupura Sundari Ammal, A.I.R. 1926 Mad. 906, it may not be possible to hold that complaint to the police is absolutely privileged on the basis of the decisions in Ramdass v. Samu Pillai, 1969 M.L.J. (Crl) 338, In re. Muthusamy Naidu, I.L.R. 37 Mad 110, Sanjeevi Reddi v. Koneri Reddi, I.L.R. 49 Mad. 315, Bapalal and Co. v. Krishnaswamy Iyer, A.I.R. 1941 Mad. 26 and similar such decisions, where in there was no occasion to consider the view expressed in Thiruvengada Mudali v. Thirupura Sundari Ammal, A.I.R. 1926 Mad. 906, by the five member Full Bench. Most of the decisions referred to above were considering the scope of privilege, regarding a complaint made to a Magistrate or to a police officer vis-a-vis suite for damages for defamation. In a few cases where the issue involved" was the prosecution, the principles laid down in the former cases, had been adopted. Judicial opinion appears to be crystallised that statements made to a police officer which could only be made with a view to their being repeated on oath before the Magistrate, would be the basis for consideration of privilege, be it absolute or qualified. The observations made indicate that whatever be the extent of privilege there cannot be any difference between the statement in the complaint which initiates proceeding and the other statements made by parties in the subsequent stages of the proceedings. Hence it can be safely taken, be it a complaint to the magistrate or to a police officer, the basic factor is that the complaint from its very nature is a statement which the complainant is prepared, if called upon to do so, to substantiate upon oath. In other words statements made in a complaint to a Magistrate or to a police officer could only be made with a view to their being repeated on oath at a later stage and the privilege that can attach to either of them cannot be different. In other words statements made in a complaint to a Magistrate or to a police officer could only be made with a view to their being repeated on oath at a later stage and the privilege that can attach to either of them cannot be different. Though a defamatory statement made in answer to questions put by an investigating officer during investigation will be absolutely privilege as held by this Court in In re. Ramasamy Mudali, 1938 M.L.J. 810, the statement in the first information will stand on a different footing and cannot enjoy absolute immunity on the basis of the view taken in (Full Bench). Thiruvengada Mudali v. Thirupura Sundari Ammal, A.I.R. 1926 Mad. 906. Such statements may fall within exception 8 to Sec.499, I.P.C. a qualified privilege, which the accused can claim only if he can bring them within the purview of that exception. That exception protects accusations preferred in good faith against a person to any of these who have lawful authority over that person with respect to the subject matter of accusation; I have to necessarily hold that a complaint to the police will not be absolutely privileged in view of the binding authority aforementioned. 11. The next question to be considered will be whether the averments iff the complaint to the police would render prosecution feasible the police would render prosecution feasible only for offences under Sec.182 or Sec.211, I.P.C and not for an offence under Sec.500, I.P.C. It will be relevant at this stage to extract the observation of Walter, J. in the order of reference to the Full Bench in Thiruvengada Mudali v. Tirupura Sundari Animal, A.I.R. 1926 Mad. 906: "To suggest that the defamed person’s sole and sufficient remedy is to prosecute the complainant for bringing a false complaint of house trespass and hurl is to deprive him of any remedy whatever against the defamatory statement". In any event, it will be for the trial Court to consider whether the imputation had been made by the first petitioner, being aided by the third petitioner, intending to harm or having reason to believe that such imputation will harm the reputation of the respondent. As staled earlier by me, the applicability of the exception and proof of good faith, which is a qualified privilege will have to be established by the accused during the course by trial. As staled earlier by me, the applicability of the exception and proof of good faith, which is a qualified privilege will have to be established by the accused during the course by trial. The applicability of the exceptions cannot be gone into at this Court. Similarly, the publication of the defamatory allegation, if any, made will be in the realm of the evidence to be appreciated. 12. What survives for consideration is whether the proceedings in the trial Court can be maintained against all the petitioners. At this stage of the availability of the allegations in the complaint and the sworn statement alone, it is apparent that the proceedings cannot be maintained against petitioners 2, 4 and 5. There are no allegations to connect them with the offence, at this stage. Admittedly, the second petitioner was not at the scene, when the complaint was preferred to the police, by the first petitioner. The fourth petitioner is stated to be a friend of the second petitioner and the fifth petitioner is a mason. An omnibus, averment of instigation without any particulars therefore, will not be sufficient to put petitioners 2,4, aiding is the gist of the offence of abatement. The proceedings as far as they are concerned are quashed, and this petition is allowed as against them. 13. As far as petitioners 1 and 3 are concerned, prima facie allegations are available in the complaint, the sworn statement and the report filed along with the complaint and before their case will have to be viewed differently from that of petitioners 2,4 and 5. This petition is dismissed as regards petitioners 1 and 3. It will be open to them to plead good faith which they have referred to before me and it will be considered on its inherent merits on the basis of evidence adduced before the trial Magistrate. The trial Court is directed to expedite disposal of this calendar case. It will be also for the trial Court to consider whether the averments expressing suspicion in the complaint will amount to defamation or will only amount to preferring a false complaint. 14. A word now about the offences under Secs. 182 and 211, I.P.C. On the face of the summons, it is doubtful if the trial Magistrate had taken cognizance of those offences. 14. A word now about the offences under Secs. 182 and 211, I.P.C. On the face of the summons, it is doubtful if the trial Magistrate had taken cognizance of those offences. In the event of his having taken cognizance, it will have to be necessarily struck down, in view of the legal bar enshrined in Sec.195, Cr.P.C, permitting cognizance only on the complaint in writing of the Court or public servant concerned or their administrative superiors, regarding offences alleged to have been committed in, or in relation to any proceeding in any Court. Needless to add, that on facts, the respondent had been released on anticipatory bail and further a final report had been sent if respect of Crime No.133 of 1988 to the trial Magistrate, referring it as a mistake of fact, for necessary action. The law laid down by the Supreme Court in Kamatapati Trivedi v. The State of West Bengal, 1979 L.W. (Crl.) 48 (S.N.), will be squarely attracted. In view of the controversy regarding the trial Court having taken cognizance of the offences alleged, under Secs.182 and 211, I.P.C., or otherwise (vide summons and certified copy of the calendar extract), I quash the cognizance taken of these offences, in the event of such cognizance having been taken. 15. In the result, this petition is partly allowed by quashing the proceedings in C.C.No.97 of 1989 on the file of the trial Court as against petitioners 2, 4 and 5 and dismissing it as far as petitioners 1 and 3 concerned.