ORAL ORDER

In the captioned petition, petitioner is seeking quashing of the proceedings pending in C.C.No.9/2024 for the offence punishable under Section 193 of IPC.

2. The facts leading to the case are as under:

Petitioner a police constable with 1^st Battalion, Karnataka State Reserve Police, Bengaluru, was previously working as a Secretary personnel/Supervisor in the premises of McGann Hospital situated at Shivamogga. During his tenure a minor girl was kidnapped from the said hospital and sexually assaulted by four accused persons on the intervening night of 5.12.2020 and 6.12.2020. A crime was registered and on conclusion of investigation, final report was filed against four accused persons for the offence punishable under Sections 366, 376, 506 of IPC, Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(1)(w)(i)(ii), 3(2)(v) of the Schedule Caste and Schedule Tribes(Prevention of Atrocities) Act, 1989.

3. The petitioner who was cited as a prosecution witness was examined as P.W.7. During the course of cross-examination, since he was partly treated as hostile, petitioner was confronted with the statements made by petitioner under Section 161(3) of Cr.P.C.

4. The Sessions Judge proceeded to convict the accused and simultaneously directed the respondent to lodge a complaint against the petitioner in terms of Section 340 of Cr.P.C. alleging that petitioner is guilty of offences punishable under Section 193 of IPC.

5. The following points would arise for consideration:

(1) Whether the petition filed under Section 482 of Cr.P.C. is not maintainable in view of alternate remedy under Section 341 of Cr.P.C.?

(2) Whether the complaint lodged by the learned Sessions Judge under Section 340 of Cr.P.C. is in contravention of the procedure provided under Section 340 (2) of Cr.P.C.?

(3) Whether the proceedings pending in CC.No.9/2024 for offences punishable under Section 193 of IPC. are sustainable since the complaint alleging commission of offence of perjury under Section 193 of IPC. is not made out even if the allegations are accepted in entirety?"

6. The learned counsel for the petitioner reiterating the grounds has contended that Section 161 Cr.P.C. statements recorded by the police are not on Oath and therefore, even if the charge sheet material is accepted in entirety, no offence is made out. Referring to Section 162 of Cr.P.C., it is argued that Section 161 Cr.P.C. statements are not at all admissible. He would further point out that the learned Sessions Judge before ordering to tender a written complaint to the jurisdictional Magistrate has not followed the procedure provided under Section 340 of Cr.P.C. Referring to Section 340 of Cr.P.C. he would point out that the Court must be of the opinion that the prosecution is sought to be launched only in the event it is expedient in the interest of justice. While taking this Court through Section 340 of Cr.P.C., he would point out that preliminary enquiry is not conducted by the learned Judge before directing its Registry to submit a written complaint to the Magistrate of I Class having jurisdiction.

7. Per contra, learned HCGP would point out that the present petition under Section 482 of Cr.P.C. is not maintainable. He submits that petitioner if he is aggrieved by the lodging of the complaint under Section 340 of Cr.P.C., he has the remedy of an appeal under Section 341 of Cr.P.C. and therefore, requests this Court to dismiss the petition as not maintainable.

8. Heard the learned counsel on record. This Court has given its anxious consideration to Section 161 statement of petitioner who was cited as C.W.7. This Court has also examined the evidence of petitioner examined as P.W.7. This Court has also given anxious consideration to the complaint filed under Section 340 of Cr.P.C. for the offence punishable under Section 193 of IPC.

Finding on point No.1:

9. Learned HCGP referring to section 341 of Cr.P.C has argued that petitioner has a remedy against the order of th