HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No.: 111 of 2008 Reserved on: 3.12.2009 Decided on: 10.12.2009 Satish Chander ………Petitioner. Versus Jagdish Chander and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.Vikas Bhardwaj, Advocate. For respondent No.1: Mr.Ashok Sharma, Advocate. For respondent No.2: Mr.Surender Saklani, Advocate. For respondent No.3: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J.: This judgment shall dispose of a petition filed by the petitioner under Section 482 of the Cr.P.C. read with Article 227 of the Constitution of India against the order, dated 23.12.2006, passed by the learned Judicial Magistrate Ist Class, Jawali, in criminal complaint No.82- II/06, summoning the petitioner for an offence under Section 500 of the IPC. Briefly stated the facts of the case are that respondent No.1, hereinafter also referred to as the _______ 1.Whether reporters of Local papers may be allowed to see the judgment? No. - 2 - Complainant, filed a complaint under Section 500 of the IPC as against the petitioner, who was impleaded as accused No.2, and as against respondent No.2, who was impleaded as accused No.1. It was alleged by the complainant that the complainant was serving in SBI, Jawali and in the year 2000, an FIR under Section 324, 34 IPC was registered against accused No.2, which is still pending in the Court. It was alleged that accused No.2 is habitual of sending false complaints and there is civil litigation going on in between the complainant and the accused. It was further alleged that both the accused filed a civil suit in the court of Civil Judge, Chandigarh making allegations that the complainant had taken money from accused No.1 promising him to get a job in the Bank through local MLA. It was further alleged that the complainant appeared in the witness box as CW-1 and reiterated the allegations using defamatory language. Thus, it was alleged that the accused persons have committed offence under Section 500 of the IPC. Preliminary evidence was led before the learned trial Court and after hearing the complainant, the learned trial Court passed the impugned order summoning both the accused persons i.e. petitioner and respondent No.2 under Section 500 of the IPC. Being aggrieved by the said order passed by the learned trial Court, the petitioner filed a revision petition under Sections 397 and 399 of the Cr.P.C. - 3 - before the learned Sessions Judge, Kangra at Dharamshala, who dismissed the same, vide his order, dated 17.7.2008. Being aggrieved by the orders of summoning him and dismissing his revision petition, the petitioner has filed the present petition. I have heard the learned counsel for the petitioner, the learned counsel for respondent No.2 and the learned Deputy Advocate General for respondent No.3. The submissions made by the learned counsel for the petitioner were that the petitioner and respondent No.1 are real brothers and there is a civil litigation going on in between them. The civil suit had been filed by respondent No.1 and the allegations made as against the petitioner are without any substance and no case was made out for summoning of the petitioner under Section 500 of the IPC. Therefore, the impugned order passed by the learned Magistrate is liable to be quashed, being illegal. To substantiate his submissions that the powers can be exercised by this Court under Section 482 of the Cr.P.C., the learned counsel for the petitioner had relied upon the decision of the Apex Court in Zandu Pharmaceutical Works Ltd. and others versus Mohd. Sharaful Haque and another, (2005) 1 Supreme Court Cases 122. A perusal of this decision shows that the following observations were made in para 8, which are relevant and are being reproduced below: - 4 - “Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. ……………………………… …………………………………….. While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist……………………………..” It was held in the above case that if, on consideration of the allegations in the light of the statement made on oath by the complainant, it appears that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, the proceedings cannot be quashed. But where it appears to the contrary, - 5 - interference by the High Court would be justified, yet no hard and fast rule can be laid down for exercise of this extraordinary jurisdiction. On facts, it was held that the High Court erred in not quashing the proceedings initiated under Section 418 of the Cr.P.C. On the other hand, the submissions made by the learned counsel for respondent No.1 were that the allegations of defamation are there and it is a matter of evidence how far these allegations stand proved and once there was prima facie evidence, which necessitated the passing of the impugned order of summoning of the petitioner, the said order calls for no interference by this Court, while exercising its inherent powers. The learned counsel for respondent No.1 relied upon the decision in John Thomas versus Dr.K.Jagadeesan, (2001) 6 Supreme Court Cases 30, wherein the following observations were made in para 10 which are relevant and are being reproduced below: “The only effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputations has lowered him in the estimation of the right- thinking members of the public. Therefore, the imputations are prima facie libellous. However, even if the imputation is not per se defamatory, that by itself would not go to the advantage of the publisher, for, the complaining person can establish on evidence that the publication has in fact amounted to defamation even in spite of the apparent deficiency.” - 6 - It is clear from the impugned order passed by the learned trial Court that the complainant had led preliminary evidence and thereafter the learned trial Court passed the impugned order summoning the accused persons. The remedy of filing a revision petition was available to the petitioner to file the revision petition before the learned Sessions Judge or this Court and he exercised that right by filing the revision petition before the learned Sessions Judge, which was dismissed by the learned Sessions Judge vide his order dated 17.7.2008. This Court is not sitting in appeal or revision against the order passed by the learned Sessions Judge and the detailed order passed by the learned Sessions Judge would not have been also liable to scrutiny if no prayer had been made for quashing the said order passed by the learned Sessions Judge, Kangra. However, a perusal of the petition filed by the petitioner shows that he not only filed the petition challenging the order passed by the learned Judicial Magistrate but had also filed the petition and prayed for quashing of the order passed by the learned Sessions Judge, while exercising the powers under Section 482 of the Cr.P.C. Once the prayer has been made for quashing of the order passed by the learned Sessions Judge, the said order, copy of which has also been attached with the present petition, can also be considered. - 7 - In my view, once the petitioner had availed the remedy of filing a revision petition against the impugned order passed by the learned Judicial Magistrate, according to law, no second revision petition lies before this Court. However, the petition lies under Section 482 of the Cr.P.C. for quashing of the order passed by the learned Judicial Magistrate, if the said order was illegal or it required interference by this Court. The Apex Court, in the above case, has already laid down that these powers are to be used sparingly and from that angle the impugned orders are to be looked into. I have held, as discussed above, that the order passed by the learned Sessions Judge has also been challenged by way of the present petition, therefore, the same is also being considered by this Court. Coming to the record of the case, it is clear that there were allegations made as against the petitioner, which were substantiated by the preliminary evidence led by the complainant, which, prima facie, showed that there were allegations to attract the provisions of Section 500 of the IPC. I need not discuss the evidence in detail or the allegations made since that may prejudice the case pending before the learned trial Court. However, suffice to say, the learned Sessions Judge has also considered the evidence, the allegations made in this regard and had come to a conclusion there was prima facie case made out for summoning of the petitioner under Section 500 of the IPC. - 8 - On consideration of the impugned order passed by the learned Judicial Magistrate and the order passed by the learned Sessions Judge in revision, it cannot be said that those orders suffer from any illegality, compelling this Court to exercise its power under Section 482 of the Cr.P.C. read with Article 227 of the Constitution of India. Thus, those orders are not liable to be quashed accordingly under these provisions. During the course of arguments, a plea was taken up by the learned counsel for petitioner half heartedly that the cognizance was taken up by the learned trial Court beyond the period of limitation prescribed therein. However, this plea has not been substantiated by the learned counsel for the petitioner as to from which date the period of limitation starts, what was the period of limitation prescribed and how the cognizance was taken beyond time. During the course of arguments, it was conceded by the learned counsel for the petitioner that this plea has been raised for the first time and had not been raised at any time before the learned trial Court or the learned Sessions Judge. In view of the fact that no proper submissions were made in this regard and this plea has been raised for the very first time, the contention put forth by the learned counsel for the petitioner is repelled being devoid of any force. However, the petitioner is at liberty to take this plea at an - 9 - appropriate stage before the learned trial Court during the trial of the case. In view of the above discussion, I hold that there is no merit in the petition filed by the petitioner which is dismissed accordingly. The parties, through their counsel, are directed to appear before the learned trial Court on 28.12.2009. The record of the case be returned back alongwith a copy of this order so as to reach before the date fixed. (V.K. Ahuja), December 10, 2009 Judge. (TILAK)