Allahabad High Court
Eshan Kaushik vs State Of U.P. And Another on 26 March, 2026
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:63610
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 714 of 2025
Eshan Kaushik
.....Appellant(s)
Versus
State of U.P. and Another
.....Respondent(s)
Counsel for Appellant(s)
:
Prajjwal Tyagi, Sachin Srivastava, Sanjeev Kumar Tyagi, Sumit Daga
Counsel for Respondent(s)
:
Ashish Pandey, G.A., Nikil Pathak
Reserved
Court No. - 90
HON'BLE RAJ BEER SINGH, J.
1. This appeal has been preferred under Section - 341 Cr.P.C. against judgment and order dated 24.12.2024, passed by learned Principal Judge, Family Court, Hapur in Misc. Case No. 597 of 2023, arising out of Criminal Misc. Case No. 95 of 2023 (Eshan Kaushik Vs. Smt. Pooja Shukla), under SEction - 340 Cr.P.C., whereby the application filed by appellant under Section - 340 Cr.P.C., has been rejected.
2. Heard learned counsel for the appellant, learned counsel for the respondent No.2, learned A.G.A. for the State and perused the record.
3. Learned counsel for appellant submitted that impugned order is against facts and law and thus, liable to be quashed. Appellant is husband of respondent No.2. The respondent No.2 has filed a case under Section - 125 Cr.P.C. for maintenance. In that case, she has filed an affidavit by concealing material facts. It was submitted that the respondent No.2 is a highly educated lady and she is post graduate in Economics and she also holds degree of B.Ed. but she has concealed that fact and mentioned herself merely as a graduate. It was stated that respondent No.2 is working as an Accountant and she also used to take home tuitions but the said facts were also concealed. Similarly, she has also concealed the details of the previous litigation, which took place between the parties. She has mentioned the salary package of appellant by exaggerating the same, whereas the appellant has already lost his job. She has mentioned false facts regarding rental income of appellant. She has also not mentioned details of her jewellery. It was submitted that respondent No.2 has submitted false affidavit to mislead the Family Court and thus, a prima facie case for making a complaint for the offences mentioned under Section - 195 Cr.P.C. was made out.
4. It is further submitted that learned Family Court has mainly rejected the application of the appellant on the ground that evidence of the parties is yet to be lead and thus, in view of these facts the application of appellant must have been decided after evidence and therefore on that count also the learned Family Court committed error by rejecting the application of appellant. In support of his contention, learned counsel has placed reliance upon case of Sejalben Tejasbhai Chovatiya Vs. State of Gujarat MANU/GJ/3099/2016. Referring to aforesaid facts, it was submitted that the impugned order is against facts and law and thus, liable to be set aside.
5. Learned counsel for respondent No.2 has opposed the appeal and submitted that the respondent No.2 has not led any false evidence and no case of perjury or of giving false evidence or of forgery is made out. The respondent No.2 has not made any false averment in the affidavit. The veracity of the averments made in the affidavit has to be considered by the Family Court and it cannot be said that respondent No.2 has led any false evidence. Referring to facts of the matter, it was submitted that no prima facie case of any offence mentioned under Section - 195 Cr.P.C. was made out against respondent No.2. It was submitted that the learned Family Court has considered entire facts and position of law in correct perspective and the application of appellant was rejected by a reasoned order and there is no illegality or perversity in the impugned order.
6. I have considered the rival submissions and perused the record.
7. Before proceeding further, it would be apt to refer the provisions of the Section - 340 Cr.P.C., which read as under :-
"340. (1) When, upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,-(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;(b) in any other case, by the presiding officer of the Court.
(4) In this section," Court" has the same meaning as in section 195."
8. In case of Sejalben Tejasbhai Chovatiya (supra), the Hon'ble High Court of Gujarat held as under :-
"16. The only aspect that needs to be considered by this Court is as to whether it is expedient in the interest of justice that such prosecution would be necessary. This expediency, as held by Apex Court, is not weighing the magnitude of the injury suffered by the person affected by it but having regard to the effect or impact that the offence would have on administration of justice and considering the factual scenario, the Court has formed a preliminary opinion to hold that it is a case of perjury.
17. As can be noticed from the chronology of events and the evidence that has been adduced before the Court concerned, it is certain that the injury which could have been sustained by the other side has not resulted on account of this alleged falsehood because respondent No. 2 could find out at an appropriate time the details which he has furnished before the Court. So far as its impact on the administration of justice is concerned, this Court has no reason to interfere as often it is found that the litigants coming before the Court chose to speak blatant lies and do so with complete impudence.
18. Laws which are otherwise in favour of the distressed wife when are sought to be misused by declaring completely incorrect facts and also by suppressing the material aspect, the trial Court at the time of considering the case found that the impact on the administration of justice would make it expedient for it to direct the prosecution."
9. In case of Jagdish Prasad Vs. State & Ors. (CRL. M.A.4231/2008), decided on 23.03.2009, the Hon'ble Delhi High Court held as under :-
"18. In the considered view of this Court, when the learned MM in the order dated 9th September 2005 observed "I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same", the requirement of Section 340 CrPC as explained by the Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a tentative or a prima facie one. This is plain from the expression "ought to be prosecuted". Further, the same expression "ought to be prosecuted" also indicates the formation of an opinion that it was expedient in the interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated 9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion reached by earned ASJ to the contrary.
19. The order dated 22nd February 2008 passed by the learned ASJ is accordingly set side. The order dated 9th September 2005 passed by the learned MM and the consequent application presented to the learned Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps will proceed in accordance with law."
10. A perusal of Section - 340 Cr.P.C. shows that these provisions are applicable in respect of such cases which are covered by Section - 195(1)(b) Cr.P.C.. Section - 195(1)(b) reads as under :-
"195(1) No Court shall take cognizance -
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 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 by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate"
11. The object of Section - 340 Cr.P.C. is to provide a safeguard against frivolous and vexatious prosecution. For taking action under section 340 Cr.P.C., the Court has to form an opinion that it is expedient in the interest of justice that an inquiry should be made for an offence referred to in section 195(1)(b) Cr.P.C., which appears to have been committed or in relation to a proceeding in that Court. In case of Dr S. P. Kohli V The High Court Punjab and Haryana, reported in AIR 1978 SC 1753, the Hon'ble Apex Court held that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognized that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.
12. In Chajoo Ram v. Radhey Shyam and another AIR 1971 SC 1367, the court held:
"7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. "
13. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur], the Court held:
"4. As is plain from the aforesaid stances adopted by the parties, they are out for personal vendetta. 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."
14. It is thus clear that in every inquiry under section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section 340 CrPC is conditioned by the words "court is of opinion that it is expedient in the interests of justice". In fact such a course has to be adopted only if the interest of justice requires and not in every case. This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It would be pertinent to mention that the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other.
15. In the instant case, perusal of record shows that appellant is husband of respondent No.2. The respondent No.2 has filed a case under Section ? 125 Cr.P.C.. In proceedings of that case, the appellant has filed an application under Section ? 340 Cr.P.C., alleging that the respondent No.2 has filed affidavit, wherein false averments have been made and material facts were concealed. It was alleged that respondent No.2 is a highly educated lady and she is post graduate in Economics and she also holds degree of B.Ed. but in the affidavit filed in the aforesaid case she has stated that she is a graduate. It was alleged that she was working as accountant in Bata company and also as a cashier in SAI enterprises and besides that she also used to take tuitions but she has mentioned herself as housewife. She has also concealed details of the earlier legal proceedings. It was further mentioned in the said application that the respondent No.2 has stated the name of employer of appellant as Tech. Mahindra and his post was stated consultant and she has mentioned his salary amount by exaggerating the same, whereas she knows that the annual salary package of appellant was Rs. 6,36,479/-. Due to litigation, appellant has lost that job. It was further alleged in the said application that respondent No.2 has mentioned in the affidavit that appellant has a residential building and flat in Meerut and Noida but no document of the same was filed. She has also not given details of her jewellery. It was alleged that in her affidavit the respondent No.2 has deliberately concealed material facts in order to mislead the Court and made false averments. The respondent No.2 has filed objections against the application under Section ? 340 Cr.P.C. and denied the allegations made by the appellant. It was stated that due to clerical error her education was mentioned as graduate in place of post graduate. She has mentioned that earlier she has worked as accountant in Bata company and cashier in SAI enterprises but she has left these jobs and at the time of filing of affidavit, she was unemployed. The alleged salary slip of appellant was of February, 2020. It was denied that the respondent No.2 used to take tuitions. It was alleged that she has not made any false facts in her affidavit. After considering material on record, the application of appellant filed under Section ? 340 Cr.P.C. was rejected by the learned Principal Judge, Family Court, Hapur by a reasoned order. It may be observed that whether the averments made in the affidavit of the respondent No.2 are incorrect, false or otherwise, the same is yet to be considered and decided by the Family Court on the basis of evidence of the parties. The veracity of the said averments is yet to be examined by the Family Court.
16. So far this contention is concerned that the application of the appellant filed under Section ? 340 Cr.P.C. must have been decided by the Family Court after evidence of both the parties, it may be observed that there is nothing to show that appellant has made any such prayer before the Family Court. There is absolutely nothing that appellant has ever made any prayer before the Family Court that the application under Section ? 340 Cr.P.C. be decided after evidence of both the parties is complete. The application of appellant was decided by the Family Court by considering detail arguments raised on behalf of the appellant. In view of attending facts and circumstances, the appellant does not get any benefit from the law laid down in case of Sejalben Tejasbhai Chovatiya (supra). Similarly the law laid down in case of Jagdish Prasad (supra) also does not help the appellant. In that matter, the trial Court has found that a prima facie case under Section ? 193 I.P.C. was made out, while in the instant matter, no such case is made out.
17. Having perused the record, it appears that there is no material illegality or perversity in the impugned order. As referred above, it is well settled that for taking action under Section ? 340 Cr.P.C., there has to be expediency in the interest of justice. In such cases of matrimonial dispute often the parties try to exaggerate the allegations against the other party but it does not mean that every such exaggeration warrants an action under Section ? 340 Cr.P.C.. In the instant matter, it appears that there was no expediency in the interest of justice to take any action under Section ? 340 Cr.P.C.. The appeal lacks merit and thus, liable to be dismissed.
18. Appeal is dismissed, accordingly.
(Raj Beer Singh,J.) March 26, 2026 S Rawat