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2012 DIGILAW 994 (KER)

Jiji Joseph v. Tomy Ignatius

2012-11-12

S.S.SATHEESACHANDRAN

body2012
Judgment :- S.S. SATHEESACHANDRAN, J. 1. Petitioners, seven in number, are the accused in a pending case on the file of the Judicial First Class Magistrate Court, Alathur. They are being prosecuted for offences punishable under Sections 120B and 203 read with Section 34 of the Indian Penal Code on a complaint filed by the 1st respondent, who is hereinafter referred to as the ‘complainant’. Petitioners have filed the above petition under Section 482 of the Code of Criminal Procedure, for short, the ‘Code’, to quash the criminal proceedings against them as an abuse of process of the court. 2. Annexure A is copy of the complaint. Complainant and petitioners are owners of adjoining properties. Damage to properties of all of them was caused by fire on 05.04.2007. Rival versions were imputed by the parties that the damages by fire was caused by the other and that led to registration of two crime cases by the police. After completion of the investigation, complainant herein was indicated as the accused for the offence punishable under Section 435 of the IPC, and the case registered against the petitioners was closed as false. Annexure B is copy of the report filed in the above case indicting the accused (present complainant). On his application, the magistrate ordered further investigation in the crime under Section 173 (8) of the Code. Annexure C is copy of that order. In the course of further investigation by police the petitioners, the present accused, were examined before the magistrate and their statements were recorded under Section 164 of the Code. After further investigation, supplementary report was filed stating that the accused in that case (present complainant) has not committed the offence alleged. The magistrate accepting that report vide Annexure D order acquitted the accused – the present complainant. After his acquittal in the above case, complainant has preferred Annexure A complaint against the petitioners to prosecute them for the offence under Section 203 of the IPC alleging that they have given false information over the offence relating to the mischief by fire in their properties referred to above, to prosecute him, knowing that the information given was false. After his acquittal in the above case, complainant has preferred Annexure A complaint against the petitioners to prosecute them for the offence under Section 203 of the IPC alleging that they have given false information over the offence relating to the mischief by fire in their properties referred to above, to prosecute him, knowing that the information given was false. While statements of the petitioners were recorded by the magistrate during further investigation of the crime, under Section 164 of the Code, the petitioners have given a version different and contradictory to what had been stated earlier to the police, according to the complainant. Previously, they stated to the police that the mischief by fire was committed by the complainant and that led to his indictment for the offence under Section 435 of the Indian Penal Code. However, when questioned before the magistrate and their statements were recorded under Section 164 of the Code, during further investigation of the crime, the petitioners stated that they had not seen the accused committing the mischief by setting fire. Petitioners have given false information over the offence, knowing the same to be false, before police, is the case for the complainant to prosecute them for the offence under Section 203 of the Indian Penal Code. 3. I heard learned counsel for the petitioners and also the complainant. Learned counsel for the petitioners relying on State of Kerala v. Markose (1961 KLT 1060), Janardhanan v. State of Kerala (1978 KLT 546) and Chinnamma v. State of Kerala (1995 (1) KLT 132) contended that statements given by a person in the course of an investigation to the police cannot form the basis of an offence under Section 203 of the IPC. The magistrate has gone wrong in taking cognizance of such offence on Annexure A1 complaint founded on allegation that false statements were given to police by the petitioners in a previous crime, is the submission of the counsel to seek quashing of the criminal proceedings against them as an abuse of process of the court. Per contra, learned counsel for the complainant urged that whatever defences available to the petitioners can be raised by them before the magistrate, and this is not a fit case for invoking the inherent powers of this Court. Per contra, learned counsel for the complainant urged that whatever defences available to the petitioners can be raised by them before the magistrate, and this is not a fit case for invoking the inherent powers of this Court. Materials produced by the complainant would show that they have given false information over the offence, knowing the same to be false, to vex and harass the complainant and he has thereby suffered injury. Learned counsel for the complainant therefore submitted that continuation of the criminal proceedings against the petitioners is essential to advance the ends of justice, and the petition has to be dismissed as meritless. 4. The decisions relied by the learned counsel do not assist much on the question emerging consideration in the case. In Markose’s case, cited supra, the absence of the word ‘truly’ in sub section (2) of Section 161 of the Code, as the Code existed then, was given emphasis to conclude that the answers given by witness to police during investigation even if they are false cannot be a ground for prosecution under Sections 201 and 203 of the IPC. IN Janardhanan’s case and Chinnamma’s case (cited supra), what was affirmed is only that statements recorded under Section 161 of the Code cannot be treated as substantive evidence. That is not the question to be considered in the present case. 5. What is the case of the complainant to prosecute the petitioners has to be taken note of. Statements given by petitioners when examined before court and their statements recorded under Section 164 of the Code, during further investigation of the crime, showed that their previous version given to police that complainant had set fire and caused damages to the properties was false, is his case. So much so, what was stated before court is correct and version given earlier before the police and recorded under Section 161 of the Code is false, according to the complainant. That is the basis for prosecuting the petitioners for the offence under Section 203 of the IPC in his complaint. Whether such a complaint is entertainable at his instance is the question to be considered. That is the basis for prosecuting the petitioners for the offence under Section 203 of the IPC in his complaint. Whether such a complaint is entertainable at his instance is the question to be considered. Section 203 of the IPC will have application only to a case where a person has voluntarily given false evidence and not to answers given by him on questions put to him by the police and statement recorded under Section 161 of the Code. Even if he has given such false statement during questioning by the police in answering the questions put to him, then, it would be a case rendering him liable for prosecution under Section 182 of the IPC, and not under Section 203 of the IPC. To prosecute him under Section 182 of the IPC, statutory mandate covered by Section 195 of the Code for taking cognizance of such offence has to be satisfied. Such an offence can be taken cognizance of only on a complaint in writing of the public servant concerned or of some other public servant administratively his subordinate. That penal offence requires satisfaction of three essentials:- (1) Giving of an information to a public servant. (2) Information must have been known or believed to be false by the giver. (3) Such false information was given with intention to cause, or knowing that it is likely to cause such public servant (a) to do or omit anything which he ought not to do or omit to do if the true facts were known to him, or (b) to use his lawful power to the injury or annoyance of any person. Where a specific penal provision has been provided under Section 182 of the IPC which takes within its ambit false information given to police as well, whether it be for registering a crime or during its investigation, subject to satisfaction of the ingredients of such offence and also mandatory requirement who should be the complainant to prosecute the offender thereof, that cannot be violated at the instance of a third party filing a complaint prosecuting the offender for a different offence. At best, the allegations raised by the complainant would give rise to an offence under Section 182 of the IPC, provided, the ingredients of such offence are made out. Complainant is incompetent to prosecute petitioners/accused for such offence. At best, the allegations raised by the complainant would give rise to an offence under Section 182 of the IPC, provided, the ingredients of such offence are made out. Complainant is incompetent to prosecute petitioners/accused for such offence. No complaint from his for that offence can be taken cognizance by the court. A complaint at the instance of complainant to prosecute petitioners/accused for the offence under Section 203 of the IPC would lie only in a case where such accused had voluntarily given false information in respect of an offence committed knowing or believing it to be false. Statements given by them to police during investigation of the crime and recorded under Section 161 of the Code even if it is false will be constitute an offence under Section 203 of the IPC. In such circumstances, criminal proceedings against the petitioners at the instance of the complainant is nothing but an abuse of process of the court, and it is liable to be quashed. 6. Criminal proceedings against the petitioners/accused in C.C.No.455 of 2011 on the file of the Judicial First Class Magistrate Court, Alathur are quashed exercising the inherent powers of this Court under Section 482 of the Code. Crl. M.C. is allowed.