HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MMO No. : 48 of 2010 Reserved On: 14.7.2010 Decided on: 13.8.2010 Dinesh Chander Sharma ……… Petitioner. Versus Subhash Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the petitioner: Petitioner in person. For the respondents: None. V.K. Ahuja, J.: This is 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 passed by the learned Additional Sessions Judge, Una, dated 24.10.2009, in Criminal Revision No.17 of 2009, vide which the order, dated 22.5.2009, passed by the learned Judicial Magistrate Ist Class, Court No.I, Una, has been upheld. 2. Briefly stated the facts of the case are that a complaint was filed by the petitioner as complainant under Section 190(1)(a)of the Cr.P.C. It was alleged therein by the complainant that his three personal complaint cases were fixed for consideration before the court of Judicial Magistrate Ist Class, Court No.II, Una, on 22.11.2005. These cases were adjourned on his request for 28.12.2005. He sought further extension of one week in those cases. He further alleged that he presented an application before the Reader at 4.25 p.m. for the supply of copy of orders passed _____________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - in those complaint cases, which were presented before the learned Judicial Magistrate, who asked him to wait as the learned Judicial Magistrate was busy in dictation. He offered to talk to the learned Magistrate personally in order to get the copy of the said orders. It was further alleged that when he stepped out of the chambers of the learned Magistrate, accused No.4 caught hold of his right arm and pulled him. Thereafter, accused No.4 alongwith accused Nos.1 to 3 were standing besides the Peon of the court and an Advocate. He alleged that accused No.3 gave a slap blow to him. He allegedly informed the learned Sessions Judge at 6.00 p.m., who asked him to approach the learned Chief Judicial Magistrate, Una to lodge his concerned complaint. He made oral complaint to the learned Chief Judicial Magistrate and then submitted a written complaint at 7.30 p.m. It was also alleged that he learnt about the registration of an FIR against him by accused No.1 to overshadow the alleged misconduct of accused Nos.3 and 4 and to cast aspersions on the complainant in the eye of general public. 3. Thus, it was alleged that accused Nos.2 to 4 connived with each other to aid accused No.5 to prepare a false report under Section 173 of the Cr.P.C. for his malicious prosecution. Thus, it was alleged that accused Nos.2 to 4 have deposed falsely in their statements under Section 161 of the Cr.P.C. and instigated the other accused to do the same and those false statements were used by accused No.5 in preparing a false report. 4. The complainant produced preliminary evidence, appeared himself as CW-1 and tendered some documents. On appraisal of the evidence, the learned Judicial Magistrate - 3 - concluded that there were no sufficient grounds to proceed against the accused persons for committing any offence and accordingly, the complaint was dismissed. 5. Aggrieved by the said order passed by the learned Judicial Magistrate in regard to non-summoning of the accused persons, the petitioner filed a revision petition under Section 397 of the Cr.P.C., which was decided by the learned Additional Sessions Judge, Una, vide his impugned judgment upholding the order passed by the learned Judicial Magistrate. 6. I have heard the petitioner in person and have gone through the order passed by the learned Additional Sessions Judge, Una. 7. The powers under Section 482 of the Cr.P.C. read with Article 227 of the Constitution of India are to be used sparingly and these powers cannot be used in a routine manner as if this Court was exercising the powers of revision against the order passed by the learned Judicial Magistrate Ist Class. The petitioner had the remedy to file a revision before this Court or before the court of the learned Sessions Judge and once those provisions have already been invoked by the petitioner by filing the revision petition before the learned Sessions Judge, this Court cannot consider the petition as a revision. However, the powers under Section 482 of the Cr.P.C. can be invoked in exceptional circumstances to correct an illegality, which could not be corrected by the order passed by the learned Sessions Judge. 8. On appraisal of the facts of the case, it is clear that the complainant wanted to make use of the statements made by some of the accused persons, namely, - 4 - accused Nos.2 to 4, under Section 161 of the Cr.P.C. These statements cannot be used for initiating proceedings as against the respondents under Section 190 of the Cr.P.C. for giving false evidence. 9. The learned Additional Sessions Judge had considered the provisions and had concluded that these statements under Section 161 of the Cr.P.C. cannot be used for summoning the accused persons for giving false evidence, as defined under Section 191 of the IPC read with Section 193 of the IPC. It had been rightly concluded that the statement made under Section 161 of the Cr.P.C. will not come within the ambit of giving false evidence. 10. The complainant, by submitting written arguments, had cited three decisions. The first decision relied upon was in Surinder Mohan Vikal vs. Ascharj Lal Chopra, AIR 1978 SC 1986, as given in the list by the petitioner. However, there is no such decision in the relevant book at page 1986. The other decision relied upon was in Basir-ul-Haq and others versus The State of West Bengal, AIR 1953 Supreme Court 293, which only provides that Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that Section but the provisions of that Section cannot be evaded by resorting to devices or camouflages. It was also observed that the ingredients of the offence under Section 182 cannot be said to be the ingredients for the offence under Section 500 of the IPC. 11. The third decision relied upon was in Nalinbhai Thakorbhai Mehta vs. Laxmiben Gordhandas Patel and others, 1985(1) Crimes 414 (Guj.). In the said decision, - 5 - observations were made to the effect that the person making such a statement under Section 161 of the Cr.P.C. is not a witness. 12. All these decisions are not applicable to the present facts. The provisions of Section 190 of the Cr.P.C. were sought to be invoked by the petitioner but these are not applicable unless and until the person had appeared as a witness in the Court. The provisions of Section 190 of the Cr.P.C. are specific that the cognizance can be taken upon receiving a complaint of facts which constitute such offence or upon a police report or upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. No case was made out for invoking these provisions since the complaint was filed by the complainant himself relying upon the statements made by the witnesses under Section 161 of the Cr.P.C., which were still required to be proved false. 13. In view of the above discussion, the order passed by the learned Additional Sessions Judge does not suffer from any illegality, which needs to be corrected by filing the present petition under Section 482 of the Cr.P.C. read with Article 227 of the Constitution of India. Thus, there is no merit in the petition filed by the petitioner, which is dismissed accordingly. The Registry is directed to inform the petitioner about the fate of the present petition accordingly. August 13, 2010. (V.K. Ahuja), (TILAK) Judge