AHAMED KUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner was convicted by the Sub-Divisional magistrate Malapuram under S. 211, IPC. and sentenced to undergo rigorous imprisonment for one year. He unsuccessfully appealed to the Sessions Judge, kozhikode and has now moved this Court in Revision.

(2.) THE Prosecution alleges that the petitioner a prominent worker of the Communist Party falsely accused Pws. 8 and 9 of having murdered Kunhi Mohammed (P. W. 1) by beating him and throwing his body into the river, knowing fully well that no such thing had taken place. Pw. 1 who took a room belonging to Pw. 8 on rent allowed the rent to fall into arrears. According to the prosecution he voluntarily surrendered the room on 8-9-1959 at 4 P. M. and handed over the key to Pw. 8. THE accused and Dw-3 another prominent member of the Communist Party approached Pw. 1 and pressed him to disappear from the place and sent him to his father-in-law's house at Cherubadi in Nilgiris. THEreafter the accused with the intent to cause injury to Pws. 8 and 9 started criminal proceedings against them by sending a petition Ext. P-4 to the police alleging that Kunhi Mohammed was manhandled and forcibly evicted from the shop by them and is not to be seen in the locality. THE Malapuram Police registered a case against Pws. 8 and 9 and others under S. 148, 323, 448, and 426 IPC. THE case was investigated by Pw-14 the Sub-Inspector and Pw-11 the Circle Inspector and referred as false. That gave rise to the charge under S. 211 IPC. against the accused which ended in his conviction.

(3.) YET another ingredient of the offence the prosecution is bound to prove is that the charge was wilfully false to the knowledge of the maker of the charge. Mere proof of the falsity of the "complaint or the failure to prove its truth is not enough. To adduce evidence of such knowledge may be very difficult, but it is still the unavoidable duty of the prosecution to prove that, if the accused is to be convicted under S. 211. If that proof of knowledge is not insisted upon no person would feel it safe to convey information to the police about any suspicion of the commission of a cognizable case. Mirza Hassan Mirza v. Musst. Mahbuban 18 Calcutta Weekly Notes 391 is a ease in point. In that case the wife gave information about the theft to the husband who conveyed the information to the police and action was taken. The High Court held that the charge against the accused under S. 211 cannot stand because the prosecution failed to establish that as a matter of fact there was no theft and the petitioner knew that there was no theft. Here not only has the prosecution failed to establish that the accusation of trespass and assault are not true but the admissions contained in Ext. P-1 and Ext. D-5 indicate that the allegations are substantially true. Ext. P-1 is the statement of Pw-1 recorded by the Executive First Class Magistrate and Ext. D-5 is a letter dated 14-9-1958 written by Dw. 5 to the accused at the instance of Pw-1. The admissions of Pw-1 in Ext. P-1 have been ignored by the learned Magistrate who was prepared to accept the fantastic explanation of Pw-1 that the hit on the face given by Pw-8 referred to in Ext. P-1 was just a friendly pat and the appellate judge failed to consider the definite admissions made in Ext. D-5 though the letter was used by him against the accused. Again there is the definite evidence of Dw-3 the Secretary of the Communist Party of Oorakam who asserted that he had actually witnessed the occurrence and had passed on the information to the accused. It is he who get the resolution noted in Ext D-4 minutes Book passed at a meeting of the Party. It was resolved to convey the information about the incident to the police and to the leaders of the political parties and authorised the accused to take the necessary steps in that direction. No doubt there is an attempt in Ext. P-4 to exaggerate the incident and the language used is such that the impression created is more grave than what is warranted by the facts. But when the complaint is substantially true and what is false is a mere fringe to the complaint there is no offence made out under S. 211 IPC. (Vide Sahadev Karan Singh v. Emperor) 38 Crl. L. J. 462.