HONOURABLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRL.P.No.7988 of 2008 ORDER: This Criminal Petition is filed to quash proceedings in C.C.No.243 of 2008 registered for offence punishable under Section 352 IPC, on the basis of a complaint given by the 1st respondent herein (the complainant in the calendar case) (for short ‘the complainant’) against the petitioner herein (A-1) (for short ‘A-1’), on the file of the Court of Judicial Magistrate of First Class, Puttur. 2. The case of the complainant is as follows: 3. The complainant is working as the Sub Inspector of Prohibition and Excise at Naraharipeta Check Post. A-1 in the case is working as the Circle Inspector of Police, at Palamaneru Check Post. A-2 in the case is working as the Circle Inspector, boarder petroling party at Madanapalli. The complainant is a duty bound officer and to protest the interest of wine shop owners, he conducted raids against the persons who were illegally manufacturing country arrack. But, A-1 on 30-03-2007, directed the complainant not to make any raids without taking his permission. When the complainant questioned about it, A-1 became wild and abused the complainant in filthy language in the presence of excise staff. Further, when the complainant took a serious note for using abusive language against him, A-2, to impress upon A- 1, caught hold of the collar of the complainant’s shirt and then A-1 picked up and lifted a chair to beat the complainant. Thus, A-1 and A- 2 committed the offences punishable under Sections 352 and 353 IPC. 4. The complaint was forwarded under Section 156 (3) Cr.P.C. to the Station House Officer, Karvetinagaram police station for investigation and filing charge sheet. Then the case was registered in Crime No.77 of 2007 on his file. Further, the S.H.O. examined the complainant and other witnesses and recorded their statements, but filed final report before the Court stating that the witnesses, examined on behalf of the complainant, did not support his claim and hence, it was a false case. Later on, the complainant filed protest petition and then statements of himself and his witness were examined and on that basis, the case was taken on file in respect of the alleged offences. 5. It is the contention of learned counsel for A-1 that emphatically the S.H.O. recorded the statements of the complainant and his witnesses which did not support the claim of the complainant and if they are examined before the learned Magistrate, they would give the same statements or evidence by reason of which, their statements or evidence would not have any credibility and thereby, continuation of the proceedings of the case is nothing but abuse of process of law, and it is a fit case to be quashed placing reliance upon a decision reported in P.S.Rajya Vs. State of Bihar[1]. 6. On the other hand, the learned counsel for the 1st respondent has contended that the statements recorded by the police cannot be taken into consideration as it is not possible to determine at this stage whether they recorded true statements of the witnesses or not and in fact, the sworn statements recorded by the learned Magistrate provides, prima facie, that the allegations made against the accused are true and there is incriminating material to prosecute A-1 and A-2 for the alleged offences and hence, the petition is not tenable. 7. The point for consideration is whether sufficient grounds are there in order to quash proceedings in the calendar case as prayed for? 8. In fact, copies of the statements of the witnesses viz., A.Govinda Swamy, A.Desaiah, B.Kondaiah and C.Chandrasekhar apart from that of the complainant are filed before the Court, and those statements recorded by the police provide that no such incident took place whereas the statement of the complainant (recorded by the police) supports his claim. On the other hand, the sworn statements of the complainant and K.Desaiah recorded by the learned Magistrate are in accordance with the claim of the complainant. 9. In P.S.Rajya’s case (supra cited), the appellant therein was charged with offences punishable under Section 5 (2) read with Section 5 (1) (e) of the Prevention of Corruption Act, 1947, and he was exonerated in departmental proceedings on identical charge in the light of a report submitted by an authority, and it was concurred by the Union Public Service Commission and an argument was advanced to the effect that the standard of proof, required to establish guilt of an accused in a criminal case, was far higher than the standard of proof required to establish guilt of a charged officer in departmental proceedings while admitting that the charge in both the departmental proceedings and criminal proceedings was same, and under those circumstances, the Supreme Court held with reference to relevant circumstances that the charge, which was identical, could not be established in the departmental proceedings, and there was nothing to proceed against the accused in the criminal proceedings. 10. Chapter 12 Cr.P.C. deals with information to the police and their powers to investigation. Section 161 Cr.P.C. deals with the examination of witnesses by the police while conducting investigation in a criminal case. Section 161 Cr.P.C. reads: 1. “Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.” 2. “Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.” 3. “The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.” Section 162 deals with Statements to police not to be signed: Use of statements in evidence. Section 162 clearly contemplates: “No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter. Provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.” However, the proviso there under provides: “Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.” 11. The case has not reached such a stage to consider the question of application of the statements recorded under Section 161 Cr.P.C. By virtue of Section 145 of the Evidence Act, the previous statements of the witnesses can be made use of when they are examined before the Court in connection with the allegations or charges made in the complaint. It cannot now be stated that the statements recorded by the police are true and correct. 12. Therefore, the Magistrate Court has the option under Section 202 Cr.P.C. to take into consideration the sworn statements of the complainant and his witnesses and proceed with the trial of the case provided sufficient material is there. Thereby, the filing of the final report by the concerned police is not a bar to proceed with the trial of the case. 13. I n G.Hari Babu and Others Vs. State through Public Prosecutor, High Court of A.P., Hyderabad[2], this Court held: “12. By virtue of Section 202 of Cr.P.C. any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit postpone the issue of process against the accused concerned and enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding subject to the other formalities noted therein. So, Section 202 Cr.P.C. gives an option to the Magistrate to postpone the issue of process against the accused and enquire into the case by himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding to take necessary action. 15. It appears that when the protest petition was filed by the complainant on the ground that the police failed to conduct necessary investigation and consequently failed to file necessary report having been influenced by the petitioners and the G.P.A. the lower Court accepted it prima facie and proceeded to take it on file and thereby availed the other option and recorded the statements of the complainant and his witnesses. When the Magistrate got two different options enumerated above, it is not logical to claim that in view of the final report filed by the police he got no authority to go for the second option irrespective of whether the final report was filed on the basis of sound reasoning or not. There is no law which debars him to avail the second option when the first option is failed whereas, what is required is administration of justice both to the accuser and also to the accused for which necessary means are to be resorted to unless expressly barred by law. Further, the jurisdiction of the Court should not be interfered with.” The same analogy is applicable here. 14. Therefore, the contention raised by the learned counsel for the accused is not tenable. Ultimately, the Criminal Petition deserves to be dismissed. 15. In the result, the Criminal Petition is dismissed. ____________________________ 23rd December 2011 G.KRISHNA MOHAN REDDY,J kvr [1] (1996) 9 S.C.C. 1 [2] 2011 (3) ALT Criminal 171 (AP)