Karunakaran Nambiar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934 Crl.MC.No. 3676 of 2007 ( ) --------------------------STC.1869/2007 OF J.M.F.C.,KASARAGOD PETITIONER/ACCUSED: ------------------- KARUNAKARAN NAMBIAR, AGED 51 YEARS, S/O. M.NARAYANAN NAMBIAR, ANINHA HOUSE PERUMBALA VILLAGE AND POST, KASARAGODE TALUK AND DISTRICT. BY ADVS.SRI.JAWAHAR JOSE SMT.CISSY MATHEWS RESPONDENT/STATE: ------------------ STATE OF KERALA, REPRESENTED BY STATION HOUSE OFFICER KASARAGODE POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. GOVERNMENT PLEADER SMT. S. HYMA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: _**“CR”**_ P.S. GOPINATHAN, J. = = = = = = = = = = = Crl. M.C. 3676 of 2007 = = = = = = = = = = = = = DATED THIS, THE 13[th] DAY OF JULY, 2012. ## _**O R D E R**_ In this proceedings under Section 482 of the Code of Criminal Procedure, petitioner assails Annexure F, a petty case charge sheet submitted by the Station House Officer, Kasaragod, alleging offence under Section 182 of the Indian Penal Code against the petitioner. In Annexure F, it is alleged as follows: “1.1.06 ത�യത� ക�ലത� 10.00 മണ�യ��� പ�ര���ള ഗ��മത�ല അണ�ഞ എന സലത ള രണ�� കക�ളത�ല ക�ര വ�വര� ക�ണ�ചയ�ള പ' വ�'�ന� കപ)റ�ഞ�നഷ� വര ത� എന� 7.1.06 ത�യത� 18.00 മണ��� ക��ല�സ�ന� പതറ�യ� വ�വര� നലക കയ � അത�പ0 അ'�സ�നത�ല കകസ� രജ�സ�ററര (Cr. 25/06 ) പ7യ�ത� അകന8ഷ�ചത�ല '�യ�ന പതററ�യ പമ�ഴ�യ�ണ� പക�' തപതന� പവള�വ�ക കയ � ആയത�ന�ല ഗ�ത�കള 182 IPC ഗ�ക�രമ ള ക റ� പ7യ�ത�ര�� ന എന � മറ �” The learned magistrate took cognizance and proceeded as STC 1869 of 2007. The petitioner seeks to quash Annexure F and consequent proceedings with a plea that petitioner had not at all furnished any false allegation before the police to register Crime No. 25 of 2006 and that the allegations in Annexure F charge sheet are false and is hit by Section 195 of the Code of Criminal Procedure (Cr.P.C.). **Crl. .C. 3676/2007** 2 2. Having heard either side and perusing the documents, I find that the petitioner filed a complaint before the Judicial Magistrate of the First Class, Kasaragod, alleging offence under Sections 447, 427 and 506 r/w Section 34 IPC against one Narayanan Nair, his wife and son. That complaint was forwarded to the Station House Officer, Kasaragod under Section 156(3) Cr.P.C. Following that, a case was registered as Crime No. 25/2006 for which Annexure A First Information Report (FIR)was prepared. After investigation, the Station House Officer arrived at a conclusion that the case was false. Thereupon, he filed Annexure B Final Report referring the case as false. Thereafter, a case as Crime No. 577/2006 alleging offence under Section 211 IPC was registered against the petitioner by Annexure D FIR. Assailing Annexure D, the petitioner preferred Crl. M.C. 3572 of 2006 before this Court and obtained an interim stay. While so, Annxure F complaint was filed against the petitioner alleging offence under Section 182 IPC. The petitioner being aggrieved by Annexure B report referring the case, filed a protest complaint as C.C. 1106/2006, copy of which is produced as Annexure C. The learned magistrate took cognizance and the case is pending trial. 3. In view of the pendency of C.C. 1106/06, it cannot be said at this stage that the allegations basing upon which Annexure A FIR was registered **Crl. .C. 3676/2007** 3 is false because the allegation in Annexure A is the subject matter in C.C.1106/2006 and is pending trial. Till the disposal of C.C. 1106/2006, the petitioner is not liable to be prosecuted for offence under Sections 181 or 182 IPC; or under Section 211 IPC for which Crime 577/2006 was registered. Therefore, for that reason itself, Annexure F is an abuse of the process. For that reason, Annexure F complaint is not legally sustainable. 4. A similar issue has been to the consideration of this Court in Kurian v. State of Kerala (1987(1) KLT 619). It was held that when a protest complaint was filed and cognizance taken by the magistrate, the complainant is not liable to be prosecuted under section 181 I.P.C till the culmination of the trial of the case. Since the case on hand is regarding offence under Section 182 IPC, a reference to Sections 181 and 182 I.P.C., which read as follows, would be relevant: “181. False statement on oath or affirmation to public servant or person authorised to administer an oath or affirmation.-- Whoever, being legally bound by an oath or affirmation to state the truth on any subject to any public servant or other person authorised by law to administer such oath or affirmation, makes, to such public servant or other person as aforesaid, touching that subject, any statement which is false, and which he either knows or believes to be false or does not believe to be true, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. **Crl. .C. 3676/2007** 4 Classification of offence-- The offence under this section is non-cognizable, bailable, non-compoundable and triable by Magistrate of the first class. 182. False information, with intent to cause public servant to use his lawful power to the injury of another person.-- Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant-- (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or (b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” 5. A comparative reading of Sections 181 and 182 IPC would show that both offences are of similar nature except that offence under Section 181 is more serious than Section 182 IPC. Irrespective of the seriousness, procedure for trial of both offences are same as evident by Section 195 Cr.P.C. Whatever may be the procedure, since the allegations in C.C. 1106/06 and Annexure A are one and the same; and Annexure C was filed protesting against Annexure B report, the prosecution by Annexure F stating that the allegations in Annexure A are false is not legally **Crl. .C. 3676/2007** 5 sustainable. It is nothing but an abuse of process by the police. 6. Adding to the above, there is the bar under Section 195 Cr.P.C., which reads as follows: 195. **Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences** - **relating to documents given in evidence.** - (1) No court shall take cognizance - - (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or - (ii) of any abetment of, attempt to commit, such offence, or (iii) of any criminal conspiracy to commit, such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; - (b) (i) of any offence punishable under any of the following section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 **Crl. .C. 3676/2007** 6 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or subclause (ii), [except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate]. xxxxxx xxxxxxx xxxxxx xxxxxxxx 7. The above provision would show that no court shall take **Crl. .C. 3676/2007** 7 cognizance for offences under Sections 172 to 188, 193 to 196, 199, 200, 205 to 211 and 228 IPC except on a complaint in writing by a court or such order of the court as the court may authorise in writing or to some other court which is subordinate. Since, Annexure F complaint was filed by the Station House Officer, it is also hit by Section 195 Cr.P.C. Therefore, the Magistrate also should not have taken cognizance on Annexure F. Further it goes without saying that registration of Crime No. 577/2006 by Annexure D FIR is also hit by Section 195 Cr.P.C. Petitioner shall succeed. In the result, this petition is allowed. Annexure F complaint and all further proceedings thereon shall stand quashed. P.S. GOPINATHAN, (JUDGE) knc/-