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.
1
Whether 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
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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
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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 cognisanceof 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
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(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,
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2025:HHC:25804Central, 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 noappeal 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,
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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
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2025:HHC:25804investigation 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 Magistrateis 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.
Xxxxxx
24. Thus, there are prerequisites to be followed by the
complainant before approaching the Magistrate underSection 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 cognizableoffences and also about the necessity of police
investigation for digging out evidence, neither in
possession of the complainant nor can be procuredwithout the assistance of the police. It is, thus, not
necessary that in every case where a complaint has beenfiled 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 underSection 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
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2025:HHC:25804whether, 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) ofthe 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 wouldonly 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 anapplication 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.”
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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 theallegation 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 withoutjurisdiction. 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
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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 ofthe 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
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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 isconsidered 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 theadministration 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. ofthe 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 whichhas a reasonably close nexus with the proceedings
in that Court so that it can, without embarkingupon a completely independent and fresh inquiry,
satisfactorily consider by reference principally to it
records the expediency of prosecuting thedelinquent 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
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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 judicialdiscretion in the light of all the relevant
circumstances when it determines the question of
expediency. The court orders prosecution in thelarger interest of the administration of justice and
not to gratify feelings of personal revenge or
vindictiveness or to serve the ends of a privateparty. Too frequent prosecutions for such offences
tend to defeat its very object. It is only in glaringcases 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
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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 ofone party and punish the other, the primary object
to take proceedings under Section 340 of the Code
of Criminal Procedure, in instituting a complaintfor giving false evidence, is to curb the evil of
perjury and to keep the flow of proceedings incourts 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 acertainty, 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.”
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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)
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