JIJI JOSEPH Vs. TOMY IGNATIUS

JUDGEMENT

(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 Ss. 120B and 203 read with S. 34 of the Indian Penal Code on a complaint filed by the Ist respondent, who is hereinafter referred to as the 'complainant'. Petitioners have filed the above petition under S. 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. 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 5.4.2007. 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 indicted as the accused for the offence punishable under S. 435 of the I.P.C., 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 S. 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 S. 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 S. 203 of the I.P.C. 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 S. 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 S. 435 of the Indian Penal Code. However, when questioned before the magistrate and their statements were recorded under S. 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 S. 203 of the Indian Penal Code.

(2.) I heard learned counsel for the petitioners and also the complainant. Learned counsel for the petitioners relying on State of Kerala v. Markose, 1961 KerLT 1060, Janardhanan v. State of Kerala,1978 KerLT 546 and Chinnamma v. State of Kerala, 1995 1 KerLT 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 S. 203 of the I.P.C. 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. 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.

(3.) 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-s.(2) of S. 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 Ss. 201 and 203 of the I.P.C. In Janardhanan's case and Chinnamma's case (cited supra), what was affirmed is only that statements recorded under S. 161 of the Code cannot be treated as substantive evidence. That is not the question to be considered in the present case.