Pattammal vs M. Munuswami

(1) This revision case has been filed by the wife against the order of the learned Additional First Class Magistrate, Vellore, refusing maintenance to

her under Sec. 488 Crl. P. C. on the ground that she had been living in adultery. The principal evidence of adultery consisted of some admissions

of the petitioner to D.W. 2, the Sub Inspector of Police, Vellore, to the effect that she had sexual intimacy with one Palni, a servant employed in

the restaurant of her husband, had eloped with him and had lived with him as man and wife in several places.

These admissions were made in the course of an enquiry conducted by the said Sub Inspector of police on a complaint preferred to the Karaikudi

police by the petitioner''s husband''s brother that the said Palni had stolen away some jewels from the house of the petitioner''s husband in Vellore.

The jewels were actually recovered from Palni. The police of Karaikudi, asked the Sub Inspector of Police, Vellore (D.W.2.) to examine the

petitioner and in that enquiry she stated that far from Palni having committed theft of those jewels, she herself had handed them over to him

voluntarily out of infatuation towards him, and it was in that connection she made the statement that she had been intimate with him, eloped with

him and lived with him as his wife. There is also some other evidence against the petitioner in respect of the adultery. For instance, her 21 year old

daughter has given evidence to that effect.

(2) The contention of Mr. Sivamani, learned counsel for the petitioner, is that the statements of the petitioner to D.W. 2, recorded as they were

under Sec. 162 of the Criminal Procedure Code, are inadmissible on account of the provisions of that section. Sec. 162, so far as is relevant,

states that no statement made by any person to a police officer in the course of an investigation under Chapter XIV of the Code, shall be used for

any purpose (save as provided in that section) at any enquiry or trial in respect of any offence under investigation at the time when such statement

was made. But that does not forbid the use of these statements in a proceeding under s. 488 of the Criminal Procedure Code, launched by the wife

against the husband. The proceeding under Sec. 488 cannot be said to answer the description of any enquiry or trial in respect of any offence

under investigation at the time when the statement under S. 162 Crl. P. C. Was made.

(3) Learned counsel for the petitioner cited the decision in Malakala Surya Rao and Others Vs. Gundapuneedi Janakamma, . But, far from helping

the learned counsel, it will, in my opinion, support my view, because there it was held that a statement under S. 162 Crl. P.C. could be used under

S. 145 of the Evidence Act, to contradict the maker of the statement in a civil proceeding.

(4) The statements in question are admissions which can be used against the petitioner under S. 21 of the Evidence Act. It may be added that Sec.

25 of the Evidence Act does not prohibit this. That section says that no confession made to a police officer shall be proved against a person

accused of an offence. That prohibition would hold good where the petitioner is accused of any offence but would not hold good in respect of a

proceeding under Sec. 488 Crl. P.C. That is also the view taken in Queen Empress v. Tribhovan Manakchand 9 Bom. 131.

(5) If the evidence of Sub Inspector (D.W.2) is not ruled out, there can be no question of any interference with the learned Magistrate''s order.

The petition is accordingly dismissed.

(6) Petition dismissed.