( 1 ) IN these applications the question which arises for my determination is whether the statement made by the accused before the Investigating Officer under sec. 161 of the Criminal Procedure Code is a privileged document and whether a complaint for defamation under sec. 499 of the IPC would be maintainable against the maker of the said statement.

( 2 ) IN this case the Opponent No. 1 had filed Criminal Case No. 54 of 1984 before the Chief Judicial Magistrate Surat for offence punishable under sec. 500 read with sec. 14 of the IPC against the petitioner and the Investigating Officer who is joined in this application as Opponent No. 2. The opponent no. 1 had also filed Criminal Case No. 549 of 1984 against Smt. Nirmalaben N. Mehta for the similar offence. In both these applications the petitioners who are the original accused in the complaint filed by the opponent No. 1 are husband and wife. It is the case of the complainant opponent No. 1 in the complaint that Nalinbhai Mehta committed rape on her daughter named Mayaben G. Patel. She filed criminal complaint before the Magistrate. The learned Magistrate directed that the case should be enquired under sec. 156 (3) of the Criminal Procedure Code. The investigation was carried out by the opponent No. 2 PSI Borse. The statements of the petitioners i. e. Nalinbhai and his wife are alleged to have been recorded and it is alleged that in the said statements same defamatory statements are made for which the aforesaid complaints and filed by the opponent No. 1. After recording the statement of opponent No. 1 the learned Chief Judicial Magistrate Surat had issued process against the petitioners in the complaints. Against that order passed by the learned Chief Judicial Magistrate Surat the petitioners have preferred the aforesaid Misc. Applications before this Court for quashing the process.

( 3 ) IN these applications the only contention which was raised by the petitioners learned advocate was that as the alleged statement is made during the course of investigation under sec. 161 of the Criminal Procedure Code. the statement is a privileged one and therefore complaint for defamation would not be maintainable. He submitted that before the Investigating Officer accused are bound to answer truly all questions relating to such case put to them by such Investigating Officer and therefore their statements are privileged ones for which no prosecution would he maintainable.

( 4 ) IN my view the submission of the learned advocate for the petitioners is misconceived because sec. 161 of the Criminal Procedure Code does not give any privilege to the maker of the statement. Under sec. 161 Investigating Officer is empowered to examine personally any person supposed to be acquainted wi the facts and circumstances of the case. Under sec. 161 sub-sec. (2) a person who is examined orally is hound to answer truly all questions relating to such case put to him by the Investigating Officer. It further provides that he is not bound to answer the question which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Sub-section 3 provides that the. Police Officer may reduce into writing any statement made to him in the course of an examination. Now from this section it is clear that no privilege is given to the maker of the statement under sec. 161 Criminal Procedure Code. It nowhere provides that no prosecution would lie against the maker of the said statement. Even the provisions of Indian Evidence Act nowhere give any such protection to the maker of the statement under sec. 161 of the Criminal Procedure Code.

( 5 ) SEC. 162 of the Criminal Procedure Code affords a limited protection The relevant part thereof is as under:-"162 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 polic