Himachal Pradesh High Court
Reserved On: 28.07.2025 vs Ranjana Kumari on 4 August, 2025
2025:HHC:25804 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 683 of 2025 .
Reserved on: 28.07.2025 Date of Decision: 04.08.2025.
Lavnish Kumar ...Petitioner
Versus
Ranjana Kumari ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Naresh Kumar Sharma, Advocate.
For the Respondent : None.
Rakesh Kainthla, Judge
The present petition is directed against the order dated 3.4.2025, passed by learned Additional Principal Judge, Family Court, Sundernagar, District Mandi, H.P., (learned Trial Court), vide which an application filed by the respondent (applicant before the learned Trial Court) was ordered to be dismissed.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. Briefly stated, the facts giving rise to the present petition are that the respondent filed an affidavit of assets and .
liability in the proceedings pending under Section 125 of Cr.P.C.
before the learned Trial Court. The application was dismissed by the learned Trial Court on 3.4.2025. Subsequently, the petitioner filed an application to register an FIR against the respondent, asserting that the respondent disclosed her income as ₹18,000/-
per month in June 2023, whereas her salary record shows her income as ₹36,014/-. She also stated falsely in her affidavit that she was paying house rent, whereas she was residing with her mother. Therefore, it was prayed that an FIR be registered against the respondent for making false averments in the affidavit.
3. The application was opposed by filing a reply asserting that the petition was filed on 6.11.2020, and the salary on the date of filing of the petition was correctly mentioned. She was residing as a tenant in her mother's house, and she had not made any false averments. Hence, it was prayed that the present petition be dismissed.
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4. Learned Trial Court held that the allegations contained in the application do not constitute the commission of .
a cognizable offence and Section 156(3) of Cr.PC did not apply to the present case. Further, the income on the date of filing of the petition was disclosed by the respondent, and there was no falsity in the affidavit. Hence, the application was dismissed.
5. Being aggrieved by the order passed by the learned Trial Court, the petitioner has filed the present petition asserting that the learned Trial Court erred in dismissing the application. The affidavit was sworn on 15.6.2023, and it was wrongly concluded that the income on the date of filing of the petition was mentioned. She had deliberately sworn a false affidavit, and the action should be taken against her. Therefore, it was prayed that the present petition be dismissed.
6. Mr. Naresh Kumar Sharma, learned counsel for the petitioner, submitted that the learned Trial Court erred in dismissing the application. Respondent-wife had deliberately sworn a false affidavit, and action should have been taken against her. Hence, he prayed that the present petition be ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 4 2025:HHC:25804 allowed and the order passed by the learned Trial Court be set aside.
.
7. I have given considerable thought to his submissions made at the bar and have gone through the records carefully.
8. It was specifically asserted by the petitioner that the respondent had filed a false affidavit before the learned Trial Court. Chapter XXVI of the Code of Criminal Procedure deals with the offences affecting the administration of justice. Section 195 (1) (b) (i) of the Cr.P.C. provides that no Court shall take cognisance of the commission of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court except upon the complaint in writing of that Court.
9. In the present case, an application was filed for the registration of the FIR for the commission of offences punishable under Sections 191, 193 and 199 of the IPC.
Therefore, the provisions of Section 195(i)(b)(1) would be attracted to the present case, and it was impermissible to take ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 5 2025:HHC:25804 cognisance of the commission of the aforesaid offences except upon the complaint made in writing by the Court.
.
10. In Arvind Kumar Adukia v. State of NCT of Delhi, 2010 SCC OnLine Del 3389: (2010) 173 DLT 738, the complainant filed a petition under Section 156 (3) of CrPC regarding theft, forgery of documents filed during the execution proceedings. This petition was allowed, and the FIR was registered at the direction of the Magistrate. It was held that no such direction could have been given because of the bar under Section 195 of the Cr.PC. It was observed at page 739:
"4. It is not disputed that all acts allegedly committed by the respondent/accused, including the Bailiff, were the acts committed during the course of an execution proceeding carried out under the directions of the Court.
Thus, if any offence was committed, it was during the proceedings of the execution of the decree being carried out by an official of the Court at the directions of the Court. Section 195 of Cr. P.C. prohibits taking cognisance of any offence in the following words:
195. Prosecution for contempt of the lawful authority of public servants, for offences against public justice and offences relating to documents given in evidence--
(1) No Court shall take cognisance--
(a) (i) If any offence punishable under Sections 172 to 188 (both inclusive) of the Penal Code, 1860, or
(ii) Of any abetment of, attempt to commit, such offence, or ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 6 2025:HHC:25804
(iii) Of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is .
administratively subordinate;
(b) (i) Of any offence punishable under any of the following sections of the Penal Code, 1860, namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) Of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) Of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in Sub-clause (i) or Sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under Clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In Clause (b) of Sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 7 2025:HHC:25804 Central, provincial or State Act if declared by that Act to be a Court for the purposes of this Section. (4) For the purposes of Clause (b) of Sub-section .
(1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appeal able decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such civil Court is situated:
Provided that--
(a) Where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed subordinate;
(b) Where appeals lie to a Civil and Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.
5. It is apparent that in order to take cognizance of an offence as enumerated under Section 195(1)(a) and (b) of the Cr. P.C., a complaint in writing of that Court or by such officer of the Court as the Court may authorise, was necessary. A complaint could also be made by a superior Court, but the cognisance of the offence cannot be taken without a complaint by the Court. In order to file a complaint in respect of the offence committed during pendency of the Court proceedings, it is necessary that either the Court should file a complaint under Section 340, Cr. P.C. for trial of the offender for the offences before the appropriate Court and if Court does not file a complaint, then the aggrieved person can also file an application under Section 340, Cr. P.C. asking for filing a complaint. However, filing a complaint under Section 340, Cr. P.C. by the Court was a necessary pre-condition for prosecution of the accused for offences committed under Section 195, Cr. P.C. Section 195, Cr. P.C. and 340, ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 8 2025:HHC:25804 Cr. P.C. are to be read together and the bar under Section 195(1)(3), Cr. P.C. can be removed only in accordance with Section 340, Cr. P.C. For taking cognizance under Section 195, Cr. P.C. of the offence, the Court has to consider all .
the circumstances and then come to a finding whether those circumstances warrant and make it expeditious, in the interest of justice an inquiry by a Magistrate in regular proceedings. It is only upon such a finding that a complaint can be made against such a person. Thus, the Court, which was seized with the proceedings, must, prima facie, be satisfied that the offence, as alleged, has been committed by the respondents and the proceedings must be initiated against them. If the Court does not make an order under Section 340, Cr. P.C., a private party, cannot lodge an FIR for the offence committed during Court proceedings." (Emphasis supplied)
11. Therefore, no FIR could have been registered by taking recourse to Section 156 (3) of CrPC (corresponding to Section 175(3) of BNSS) and the learned Trial Court had rightly declined to exercise the jurisdiction under Section 156(3) of CrPC.
12. It was laid down by the Hon'ble Supreme Court in Om Prakash Ambadkar v. State of Maharashtra, 2025 SCC OnLine SC 238 that the Magistrate has to apply his mind to determine whether any cognizable offence is disclosed before ordering an investigation. It was observed:
"11. However, what is important to observe is that whenever any application is filed by the complainant before the Court of Judicial Magistrate seeking police ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 9 2025:HHC:25804 investigation under Section 156(3) of the Cr. P.C., it is the duty of the concerned Magistrate to apply his mind for the purpose of ascertaining whether the allegations levelled in the complaint constitute any cognizable .
offence or not. In other words, the Magistrate may not undertake the exercise to ascertain whether the complaint is false or otherwise; however, the Magistrate is obliged, before he proceeds to pass an order for police investigation, to closely consider whether the necessary ingredients to constitute the alleged offence are borne out on plain reading of the complaint.
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24. Thus, there are prerequisites to be followed by the complainant before approaching the Magistrate under Section 156(3) of the Cr. P.C., which is a discretionary remedy as the provision proceeds with the word 'may'.
The Magistrate is required to exercise his mind while doing so. He should pass orders only if he is satisfied that the information reveals commission of cognizable offences and also about the necessity of police investigation for digging out evidence, neither in possession of the complainant nor can be procured without the assistance of the police. It is, thus, not necessary that in every case where a complaint has been filed under Section 200 of the Cr. P.C., the Magistrate should direct the Police to investigate the crime merely because an application has also been filed under Section 156(3) of the Cr. P.C., even though the evidence to be led by the complainant is in his possession or can be produced by summoning witnesses, with the assistance of the court or otherwise. The issue of jurisdiction also becomes important at that stage and cannot be ignored.
25. In fact, the Magistrate ought to direct investigation by the police only where the assistance of the Investigating Agency is necessary and the Court feels that the cause of justice is likely to suffer in the absence of investigation by the police. The Magistrate is not expected to mechanically direct investigation by the police without first examining ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 10 2025:HHC:25804 whether, in the facts and circumstances of the case, investigation by the State machinery is actually required or not. If the allegations made in the complaint are simple, where the Court can straightaway proceed to .
conduct the trial, the Magistrate is expected to record evidence and proceed further in the matter, instead of passing the buck to the Police under Section 156(3) of the Cr. P.C. Of course, if the allegations made in the complaint require a complex and complicated investigation which cannot be undertaken without active assistance and expertise of the State machinery, it would only be appropriate for the Magistrate to direct an investigation by the police authorities. The Magistrate is, therefore, not supposed to act merely as a Post Office and needs to adopt a judicial approach while considering an application seeking investigation by the Police."
13. The offences punishable under Sections 199 and 193 of the IPC are described as non-cognisable in the First Schedule of the CrPC, and the FIR could not have been ordered to be registered when the application disclosed non-cognisable offences. It was held in Om Prakash Ambadkar (supra) that it is impermissible to order the registration of the FIR for the commission of an offence punishable under Section 500 of IPC (which is a non-cognisable offence). It was observed:
"20. We fail to understand how the Magistrate could have directed the police to investigate the offence of defamation, punishable under Section 500 of the IPC. We are at a loss to understand why this aspect was not looked into even by the High Court."::: Downloaded on - 04/08/2025 21:22:48 :::CIS 11
2025:HHC:25804
14. In P.C. Mohan v. State of Karnataka, 2021 SCC OnLine Kar 16: 2021 Cri LJ 999, learned Special Judge directed the .
registration of the FIR for the commission of offences punishable under Sections 171-G, 177, 181, 191, 193, 199, 200 of the Penal Code. It was held that the offences were non-
cognisable and no FIR could have been registered. It was observed:
14. Undisputedly, all the offences alleged against the petitioner are non-cognizable offences.
15. Law is now well settled that before directing the police to investigate under sub-section (3) of Section 156CrPC, the Magistrate/court should form an opinion that the complaint discloses a cognizable offence. When the allegation made in the complaint does not disclose a cognizable offence, the Magistrate/court has no jurisdiction to order a police investigation under sub-
section (3) of Section 156CrPC.
16. In the present case, the learned Special Judge, without applying his mind, has directed investigation by the police. Such an order is clearly an order without jurisdiction. Therefore, to that extent, the order passed by the Special Court directing the police to investigate under sub-section (3) of Section 156CrPC is liable to be quashed.
15. Therefore, no direction could have been issued to register the FIR in the present case.
16. It was submitted that the learned Trial Court could have resorted to Section 340 of Cr.P.C. This submission is not ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 12 2025:HHC:25804 acceptable. A specific prayer was made by the petitioner for the registration of the FIR; therefore, the learned Trial Court was .
justified in not taking recourse to Section 340 of Cr.P.C. Further, it was laid down by the Delhi High Court in Jagjit Kaur v. Lt. Col.
Harjeet Singh, 1999 SCC OnLine Del 870, that jurisdiction under Section 340 of Cr.P.C. should only be exercised when it is necessary in the interest of justice to do so and not to satisfy the private vendetta. It was observed:-
4. A bare reading of Section 340 Cr. P.C. would make it clear that power thereunder can be exercised by the Court either suo moto or upon the application made to it in that behalf. Before invoking the provisions of Section 340 of the Code, the Court has to form an opinion that it is expedient in the interest of justice that an enquiry be made into any offence referred to in clause (b) of sub-
section (1) of Section 195. In Patel Laljibhai Somabhai v. State of Gujarat (AIR 1971 SC 1935), the Apex Court has analysed the purpose of enacting Section 195(1)
(b) and (c) and Section 476 of the Code of Criminal Procedure, as under:--
"The underlying purpose of enacting S. 195 (1)(b) and (c) and S. 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 13 2025:HHC:25804 of public justice, which is the direct and immediate object or victim of those offences, and it is only by misleading the courts and thereby perverting the .
due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such a party is deprived of the general right recognised by Section 190 Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to it records the expediency of prosecuting the delinquent party."
5. The aforesaid observations of their Lordships will show that the provisions of Section 340 of the Code are intended to provide a safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass or spite the opponent. It is not the law that every false statement should attract the provision of Section 340 of the Code. In Thomman v. IInd Addl. Sessions Judge. Emakulam (1994 Cr. LJ 48), it was observed by Hon'ble Thomas, J that "If the court is to notice every falsehood ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 14 2025:HHC:25804 that is sworn to by parties in courts, there would be very little time for courts for any serious work other than directing prosecution for perjury. Again, the edge of such .
a weapon would become blunted by indiscriminate use.
The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement, and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury." In the context, reference may also be made to the following observations of the Supreme Court in Santokh Singh v. Izhar Hussain (AIR 1973 SC 2190).
"....Every incorrect or false statement does not make it incumbent on the court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution........"
6. ...... Viewing the circumstances mentioned above, it seems that the object of filing the said application was not so much to vindicate the purity of the administration of justice, but to see that the appellant who had been contesting the divorce proceedings be punished under the provisions of penal law. Once it is held that the motivation behind the application under section 340 of the Code was to gratify his feelings of revenge, then automatically a finding on the issue of expediency must be recorded against the respondent No. 1. It is also ::: Downloaded on - 04/08/2025 21:22:48 :::CIS 15 2025:HHC:25804 salutary to note that judicial process should not be allowed to be used as an instrument of oppression and needless harassment. At the stage of invoking the .
provision of Section 340 of the Code, the Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before directing prosecution for perjury lest it would be an instrument in the hands of a person as vendetta to harass his opponents. Vindication of the majesty of justice and maintenance of law and order and social stability in the society are the prime objects of criminal justice, but it should not be the means to wreak personal vengeance. In this context, I may usefully excerpt the following observations of his Lordship M.M. Punchi, J (as he then was) in the case of Jaswinder Singh v. Smt. Paramjit Kaur (1986 Cri. L.J. 1398):--
".....It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other, the primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed, conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this court to enter into the fact and become a complainant at the behest of the husband- petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties."::: Downloaded on - 04/08/2025 21:22:48 :::CIS 16
2025:HHC:25804 For the reasons discussed above, I do not think that this is a proper case which can be regarded as expedient, in the interest of justice, to proceed against the appellant under .
Section 340 Cr. P.C. In a result, the appeal is allowed and the impugned order dated 22.8.1997 is set aside.
17. In the present case, the learned Trial Court recorded the specific finding that the income mentioned was correct on the date of filing of the petition. Therefore, it cannot be said that the respondent had deliberately tried to mislead the Court, and the learned Trial Court was justified in not taking any action against the respondent in the present matter.
18. In view of the above, the present petition fails and the same is dismissed.
19. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 4th August 2025 (Chander) ::: Downloaded on - 04/08/2025 21:22:48 :::CIS