Hon’ble Suneet Kumar, J.—The prospective accused /applicant has approached this Court, in proceedings under Section 482 Cr.P.C., assailing order dated 31 February 2015 passed by the Revisional Court /Additional Sessions Judge, Court No. 1 Bareilly, in Criminal Revision No. 22 of 2015 (Mahesh Tiwari v. State of U.P. and others) affirming summoning order dated 17 December 2014 passed by the Judicial Magistrate-1 Anwla, Bareilly in complaint case No. 743 of 2014 for an offence under Section 193 IPC.

2. The facts, briefly is, that the applicant instituted a suit for permanent injunction against the complainant/opposite party No. 2 being suit No. 94 of 2013 (Sri Subhash Inter College, Anwla through its Manager, Mahesh Tiwari, Advocate v. Smt. Ruchi Saxena and others). The plaint was duly supported by an affidavit sworn by the applicant which was stated to be true to personal knowledge. In paragraph 16 of the affidavit filed in support of the plaint, it was averred that the cause of action for instituting the suit arose on 26 July 2013 when the opposite party No. 2/complainant threatened the principal of the college to remove the wall, however, in the event of failure, it was alleged that the wall would be removed by using force.

3. Aggrieved by the assertion, which according to the complainant, was false for the reason that the complainant was abroad (USA) from 18 May 2013 until 10 September 2013. The complainant, therefore, filed an application under Section 340 Cr.P.C. for initiating proceedings for perjury, which was rejected by the Civil Court by order dated 18 November 2013 for the reason that the alleged affidavit was prepared and sworn out side the Court and thereafter filed in the Court, therefore, the proceedings in terms of Section 340 Cr.P.C. would be impermissible.

4. Thereafter, complainant filed a private complaint under Section 190 Cr.P.C. against the applicant seeking his prosecution for an offence alleged to have been committed under Section 193 IPC. The learned Magistrate upon examining the complainant under Section 200 and recording statement of the witness under Section 202 Cr.P.C. summoned the applicant. Aggrieved, applicant preferred a revision, which by the impugned order affirmed the summoning order.

5. The summoning order, revisional order and the complaint proceedings is being assailed.

6. Sri Chetan Chatterji, learned counsel appearing for the applicant would contend that: (i) an application filed under Section 340 Cr.P.C. arising out of original suit was dismissed, against the dismissal order, since appeal was not preferred by the complainant under Section 341 Cr.P.C., therefore, subsequent private complaint was not maintainable; (ii) evidence would not include an affidavit in view of Section 1 read with Section 3 of the Indian Evidence Act 1872; (iii) Section 30 read with Order 19 of the Code of Civil Procedure (CPC), would provide the circumstances, when an affidavit can be permitted to be filed in evidence or in the alternative the circumstances in which certain facts may be proved by means of an affidavit, therefore, pleadings, as such, would not be an evidence within the meaning of Section 191/192 IPC; (iv) private complaint for an offence under Section 193 IPC for perjury would be barred in view of Section 195(1) Cr.P.C.

7. In rebuttal Sri Amit Kumar Srivastava, learned counsel appearing for the complainant would submit that the statement made on oath by the applicant being false, which fact he knew to be false on the date of swearing, therefore, would tantamount to giving false evidence in a judicial proceeding defined under Section 191/192 IPC, which is punishable under Section 193 IPC, therefore, would contend that an affidavit is an evidence within the meaning of Section 191/192 IPC. A private complaint for filing a false affidavit in civil proceedings would be maintainable, therefore, the impugned orders are lawful and valid.

Rival submission falls for consideration.

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