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2012 DIGILAW 490 (KER)

Ullas v. State of Kerala

2012-06-05

S.S.SATHEESACHANDRAN

body2012
ORDER S.S. Satheesachandran, J. 1. Petitioner is the accused in S.T.No.2983/09 on the file of the Judicial Magistrate of the First Class, Kothamangalam, which arose out of a complaint, numbered as petty case No.445/09, filed before the magistrate by the Circle Inspector of Police, Kothamangalam Police Station. Offence alleged against the petitioner in the complaint is under S. 182 of the Indian Penal Code (for short "the I.P.C"). Petitioner had given a statement before the police imputing various offences against some persons, on which a crime was registered as Crime No. 1170/09 of Kothamangalam Police Station for offences under Ss.447, 324 and 341 read with S.34 of the I.P.C. against the accused named therein. Allegation raised in his complaint was that the accused had criminally trespassed upon his residence and conjointly attacked him, and thereby they committed the aforesaid offence. Over the same incident involved another crime case had been registered by the police as Crime No. 1170/09 in which the petitioner was proceeded against as the accused for offences punishable under Ss.307 and 294(b) of the I.P.C. After investigation of both the crimes, case registered on the basis of the complaint of the petitioner under Annexure-B F.I.R. was found to be false and a report thereof was filed before the magistrate. Over the crime registered against the petitioner, Crime No. 1170/09, final report was laid indicting him of the offences under Ss.307 and 294(b) of the I.P.C. That case, after committal, is pending trial, numbered as S.C No. 124/11, before the Assistant Sessions Court, Perumbavoor. Meanwhile, the Circle Inspector of Police, Kothamangalam filed petty case No.445/09 complaining that the accused, giving statement leading to Annexure-A crime, which were false to his knowledge and belief, has committed the offence under S. 182 of the I.P.C. The magistrate has taken cognizance of the offence under the complaint and issued summons to the petitioner/ accused. Present petition has been filed to quash the proceedings against the petitioner in S.T.No.2983/09 on the file of the Judicial Magistrate of the First Class, Kothamangalam. 2. The learned counsel for the petitioner submitted that over the refer report filed in the crime registered in Annexure-B F.I.R. he has filed a protest complaint as Crl.M P.No.94/09 before the Magistrate. Annexure C is a copy of that complaint. 2. The learned counsel for the petitioner submitted that over the refer report filed in the crime registered in Annexure-B F.I.R. he has filed a protest complaint as Crl.M P.No.94/09 before the Magistrate. Annexure C is a copy of that complaint. After recording his sworn statement in the enquiry on such complaint and being satisfied that a prima facie case to proceed against the accused named has been made out, cognizance of the offences under Ss.324, 447 and 341 read with S.34 of the I.P.C. has been taken in complaint numbering it as CC.No.447/11 of the court. Since cognizance has already between taken of the offences referred to above on his protest complaint, the proceedings initiated on the basis of Annexure-A complaint filed by the Circle Inspector of Police illegal and unjustifiable, submits the counsel. It is also contended that even if the entire allegations in Annexure-A complaint are accepted as true, still, no offence under 12 of the I.P.C. is made out, to proceed against the petitioner. According to the counsel, there should be specific allegation that the person who gave information, the public servant, either knew or believed that the information given by him is false. No such allegation is spelt out in Annexure-A complaint, is the submission of the counsel, contend that further proceedings on such complaint will be an abuse of the process of the court. 3. The question that emerges for consideration primarily is whether the magistrate take cognizance on the complaint filed by the Circle Inspector of Police, to proceed against the petitioner/accused for the offence under S. 182 of the I.P.C. when a protest complaint filed by him arising from Annexure-B F.I.R. had already been received and numbered to proceed further ordering summons to the accused therein. On the same of facts and allegations raised in Annexure-B F.I.R. taking exception to the final report filed in the crime registered thereof to treat it as false, the petitioner has filed the test complaint and cognizance of the offences raised in his complaint, no doubt, has been taken by the magistrate. So, when an enquiry is being proceeded on the protest complaint and after such enquiry if the magistrate comes to the conclusion that such test complaint is false, then, if he is satisfied of any offence committed under S.211 of the I.P.C, he can proceed against the petitioner for such offence. So, when an enquiry is being proceeded on the protest complaint and after such enquiry if the magistrate comes to the conclusion that such test complaint is false, then, if he is satisfied of any offence committed under S.211 of the I.P.C, he can proceed against the petitioner for such offence. Any prosecution the aforesaid offence under S.211 of the I.P.C. has to satisfy the interdiction covered under S. 195(1) (b) of the Code of Criminal Procedure. When such be the case, a parallel proceeding on a complaint filed by the police officer, imputing an offence under S. 182 the I.P.C. as having arisen from Annexure-B F.I.R. will not be justified, and no cognizance of the offence alleged in such complaint can be taken by the magistrate, The Apex Court in State of Punjab v. Brij Lal Palta, 1968 KLT SN 26 (C.No.51) SC = AIR 1969 SC 355 in which a similar fact situation was presented, has observed thus: "The Magistrate can take cognizance of an offence under S. 182 on a complaint in writing he police officer by virtue of the provisions contained in S.195(1)(a) of the Cr.P.C. Code. Butt it would virtually lead to the circumvention of the provisions of S.195(1)(b) if the proceedings under S.182 can continue where the offence disclosed is covered by S.211, and a complaint is pending which has been filed by the informant on the same facts and allegations were contained in his first information report." There is no room for any doubt that once cognizance on the protest complaint is taken on the same set facts and allegations raised Annexure-B F.I.R., it is not open to the Magistrate to taken cognizance of the offence under S. 182 of the I.P.C. under Annexure-A complaint of the police officer and the proceedings so taken are liable to be quashed However, it is made clear that if after enquiry the private complaint is terminated and the Magistrate comes to the conclusion that an offence under S.211 of the I.P.C. has been committed in filing the protest complaint and the proceedings taken thereof by the petitioner, subject to the procedural requirement under S. 195(1)(b) of the Code of Criminal Procedure, he is fully empowered to take such action as provided by law. 4. 4. Subject to the observations made above proceedings arising from Annexure-A complaint filed by the Circle Inspector of Police, Kothamangalam numbered as S.T.No. 2983/09 on the file of the Judicial Magistrate of the First Class, Kothamangalam are quashed. Crl M.C. is disposed of as above.