Point of Law: Invoking jurisdiction of criminal court was an abuse of process of law.

JUDGMENT :

C.S.SUDHA, J.

This appeal under Section 341 Cr.P.C. has been filed by the sole accused in C.C.No.196/2020 on the file of the Judicial First Class Magistrate Court-I, Muvattupuzha. The said case has been taken on file on the basis of Annexure A3 Complaint of the Sheristadar, Family Court, Muvattupuzha, which in turn is on the basis of Annexure A2 order dated 24/07/2019 in M.P.No.211/2016 in M.C.No.109/2015 on the file of the Family Court, Muvattupuzha.

2. The appellant/accused filed M.C.No.109/2015 seeking maintenance under Section 125 Cr.P.C. against her estranged husband/respondent. In the said case, while the appellant was examined as PW1, she was asked in the cross examination as to whether she was employed as a doctor in a clinic and earning salary. The appellant answered in the negative and claimed to have no means to maintain herself. The proprietor of 'Doctor 32', Kakkanad, namely, RW2, was examined by the respondent/husband to disprove her case. RW2 in her examination deposed that the appellant herein is working in her clinic as a trainee and that she is being paid an amount of Rs.4,000/-monthly as stipend. The respondent/husband then filed M.P.No.211/2016 contending that the statement made by the appellant herein on oath denying her employment status would come within the definition of the offence of giving false evidence as contemplated under Section 191 IPC, punishable under Section 193 IPC. Hence, the request for lodging a complaint against the appellant before the jurisdictional Magistrate by invoking the power under Section 340 Cr.P.C. for commission of the offence punishable under Section 193 IPC.

3. On the basis of the said complaint, the learned Family Court Judge found that the offence alleged to have been committed by the appellant is one among the offences mentioned under Section 195(1)(b)(i) Cr.P.C. and hence was of the opinion that it was expedient in the interest of justice to make an enquiry. On a consideration of the oral evidence of RW2 and Ext.B4 attendance register maintained in the clinic, the court concluded that the materials on record prima facie showed that the appellant under oath, had made a false statement in her examination before the court and so an offence punishable under Section 193 IPC had been made out, for which action under Section 340 Cr.P.C. required to be taken. Hence M.P.No.211/2016 was allowed as per Annexure A2 order and direction was given to lodge a complaint against the appellant herein under Section 340 Cr.P.C. before the jurisdictional Magistrate. Pursuant to the order, the Sheristadar, Family Court, Muvattupuzha, filed Annexure A3 complaint before the Judicial First Class Magistrate Court-I, Muvattupuzha, which court in turn has taken the case on file as C.C.No.196/2020.

4. In the appeal memorandum it is alleged that Annexure A3 complaint is not maintainable as it is opposed to law, facts and circumstances of the case. The enquiries stated to have been conducted by the Family Court, was without considering the materials on record or considering it in the proper perspective, which has resulted in causing serious miscarriage of justice. The materials on record do not show the involvement of any public interest or intention to give any false statement. As Annexure A3 complaint is without complying with the provisions of Section 340 Cr.P.C., the same is not maintainable and hence liable to be withdrawn, contends the appellant.

5. Heard Sri.Benny Joseph, the learned counsel for the appellant ; Ms.Lowsy, the learned counsel for the first respondent and Sri.Saigi Jacob Palatty, the learned Senior Public Prosecutor.

6. Admittedly, the appellant herein was examined as PW1 in M.C.No.109/2015, a proceeding under Section 125 Cr.P.C., before the Family Court concerned. In the cross examination, she was asked thus –

“You are working at Doctors 38 at Kakkanad (Q). No (A). Doctor 38 is run by a doctor named Kavitha Biji. I have acquaintance with this firm. ….” “….... the respondent s