A KESAVA BHATTA Vs. VENKITARAMANA BHATTA
LAWS(KER)-1967-8-16
HIGH COURT OF KERALA
Decided on August 22,1967

A. KESAVA BHATTA Appellant
VERSUS
VENKITARAMANA BHATTA Respondents

JUDGEMENT

- (1.) THIS is an appeal with special leave by the complainant in C. C. No. 42 of 1963 on the file of the District Magistrate, tellicherry, against the order acquitting the accused of offence punishable under S. 500 I. P. C.
(2.) THE gist of the complaint was that the 1st accused preferred a false complaint before the Adhur Police Station stating that the complainant, his brother and their father set fire to a cow pen and a watching shed belonging to and in the possession of the 2nd accused, that the police after investigation found the complaint to be false and referred it, that the 1st accused then filed a complaint before the Magistrate containing the same averments, that the Magistrate finding that there was prima facie case committed the accused in the case, namely, the complainant, his brothers and their father, to stand their trial before the Sessions Court, that the Sessions court acquitted the accused finding that the case has not been proved, and that accused 2 to 5 abetted the 1st accused in the commission of the offence by giving false evidence in the Magistrate's court and before the Sessions Court. THE case of the complainant was that the allegations in the complaint in that case that the complainant his brothers and their father set fire to the cow pen and the watching shed are per se defamatory and have lowered his reputation among the public, and therefore the accused committed an offence under S. 500 I. P. C. The 1st accused contended that the complaint was filed under the bona fide belief that it was the accused in the case, namely, the complainant, his brothers and their father, who set fire to the cow pen and the watching shed and that he was protected by Exception 8 to S. 499. The learned District Magistrate found that the 1st accused was protected by the exception to S. 499 as he filed the complaints under the bona fide belief that it was the complainant his brothers and their father who set fire to the cow pen and the watching shed. He observed that the fact that the complainant and others were committed for trial by the learned magistrate and that accused 3 to 5 gave evidence before the Magistrate as well as before the Sessions Court that the complainant, his brothers and their father were instrumental in setting fire to the cow pen and the watching shed would show that the 1st accused filed the complaints in good faith. The learned magistrate also said that it was the duty of the complainant to have proved that the 1st accused had no bona fides in filing the complaints and that as it has not been proved, the accused cannot be found guilty of the offence.
(3.) THE 1st accused preferred a complaint Ex. P5 before the Adhur Police Station alleging that the complainant, his brothers and their father set fire to the cow pen and the watching shed belonging to the 2nd accused, along with two other accused. That complaint was referred by the police as false. Ex. P8 is the refer notice issued on the report. THE 1st accused filed a petition protesting against referring the case and thereafter filed Ex. P3 complaint before the Sub Magistrate. On the basis of this complaint, the Sub Magistrate enquired into the complaint and finding that there was prima facie case committed the accused to the court of Sessions to stand their trial. THE Sessions Court, after trial passed Ex. P2 judgment finding that the accused there were not guilty. THE main reason for finding that the accused were not guilty was that the evidence adduced on behalf of the prosecution was not trustworthy and that the case of the accused that the cow pen and the watching shed caught fire accidentally cannot be ruled out. Before the Sessions Court as well as before the committing Magistrate's Court, accused 1 and 3 to 5 had given evidence supporting the case of the 1st accused. The first question for consideration is whether the learned Magistrate was right in saying that because the Sub Magistrate committed the complainant and others, the accused in that case to stand their trial before the Sessions Court, that was prima facie evidence of the bona fides of 1st accused in filing the complaints. In support of the contention that the committal order is. not even prima facie evidence that the accused committed the offence charged, Mr. K. Chandrasekharan, appearing for the appellant, referred to the ruling in Kushi Ram versus Hashim AIR 1959 SC 542 and Bipat Gopa versus State of Bihar AIR 1962 SC 1195. In both these rulings, it was held that for a Magistrate to commit the accused to the Sessions Court it is only necessary that there should be some legal evidence as regards the guilt of the accused. We agree that merely because the Sub Magistrate committed the complainant and others to the court of Sessions, there is no presumption that they were guilty. The committal order is no proof that the 1st accused was actuated by bona fides in filing the complaints.;


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