Calcutta High Court (Appellete Side)
Garima Shaw @ Guddi Shaw vs Umesh Kumar Shaw & Another on 5 March, 2025
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Ajay Kumar Gupta
C.R.R. 664 of 2022
Garima Shaw @ Guddi Shaw
Versus
Umesh Kumar Shaw & Another
For the Petitioner : Mr. Dinabandhu Chowdhury, Adv.
Mr. Iresh Paul, Adv.
For the Opposite Party No. 1 : Mr. Debajyoti Deb, Adv.
Mr. Shyamal Mondal, Adv.
Ms. Somdyuti Parekh, Adv.
Heard on : 08.01.2025
Judgment on : 05.03.2025
2
Ajay Kumar Gupta, J:
1. By filing this Criminal Revisional application under Section
482 of the Code of Criminal Procedure, 1973, the Petitioner has
challenged the correctness, legality and propriety of an Order dated
03.11.2021 passed by the Learned Additional Chief Metropolitan
Magistrate - II, Calcutta in the Complaint Case No. CNS No. 1058 of
2021.
2. By the said impugned order dated 03.11.2021, the Learned
Magistrate took cognizance against the petitioner under Sections
193/199/209 of the IPC in a proceeding filed under Section 340 read
with Section 195 of the CrPC.
3. The brief facts, leading to filing of this Criminal Revisional
application, are as under: -
3a. The petitioner is a legally married wife of the opposite party
no. 1. She had filed an application under Section 12 read with
Section 23 of the Protection of Women from Domestic Violence Act,
2005 being Misc. Case No. 17/2017. The said proceeding was
dismissed for default by the Learned 18th Metropolitan Magistrate,
Calcutta. At the relevant point of time, the petitioner/wife had been
3
residing in joint mess. After dismissal of the said case, the petitioner
was ousted from her matrimonial house.
3b. Due to change in the circumstances, the petitioner/wife has
filed a fresh application under Section 12 read with Section 23 of the
Protection of Women from Domestic Violence Act, 2005 praying reliefs
as prayed for. The proceeding is pending before the Learned
Metropolitan Magistrate, 6th Court at Calcutta.
3c. In the said proceeding, the husband has filed an objection
raising point of maintainability, which has been decided by the
Learned Magistrate vide Order dated 23.02.2021. The Learned
Magistrate holds the proceeding is maintainable and further allowed
interim maintenance to the tune of Rs. 39,000/- per month as
maintenance in favour of the petitioner awaiting the disposal of the
case by the Learned Magistrate vide order dated 23.03.2021.
3d. Being aggrieved by and dissatisfied with the said impugned
order dated 23.03.2021, the opposite party no. 1 had filed an appeal
being Misc. Appeal No. 100 of 2021 before the Learned Chief Judge,
City Sessions Court at Calcutta, which was, however, allowed on
07.12.2021 whereby setting aside the impugned Order dated
4
23.03.2021 passed by the Learned Magistrate.
3e. Feeling aggrieved by the said Order dated 07.12.2021 passed
in Misc. Appeal No. 100 of 2021, the petitioner has moved a
Revisional application being CRR No. 314 of 2022. After hearing, the
then Hon'ble Single Bench of this Court has been pleased to stay the
impugned Order dated 23.03.2021 passed in Criminal Appeal No.
100 of 2021 on 02.02.2022.
3f. During pendency of the Revisional application, the opposite
party no. 1/husband filed an application under Section 340 of the
CrPC alleging, inter alia, that the petitioner/wife had made false
statements in the affidavit of assets and liabilities filed before the
Learned 6th Metropolitan Magistrate, Calcutta in connection with the
Misc. Case No. 9 of 2019. The said application had been filed before
the Learned 6th Metropolitan Magistrate. However, it was appeared
and moved the same as complaint case before the Learned Additional
Chief Metropolitan Magistrate - II, Calcutta on 03.11.2021.
3g. The Learned Additional Chief Metropolitan Magistrate - II,
Calcutta took cognizance on the said complaint vide order dated
5
03.11.2021 and the case was further transferred to the file of the
Learned 6th Metropolitan Magistrate, Calcutta. Though, the
application was originally filed before the Learned 6th Metropolitan
Magistrate, Calcutta since the original Misc. Case No. 9 of 2019 was
pending before the said 6th Metropolitan Magistrate but without going
through the relevant provisions of Section 340 read with Section 195
of the CrPC, Learned Additional Chief Metropolitan Magistrate - II,
Calcutta took cognizance mechanically and ignored its jurisdiction.
Hence, this Criminal Revisional application.
4. Learned counsel appearing on behalf of the petitioner
vehemently argued and submitted that the opposite party no. 1 has
filed application under Section 340 of the CrPC and moved before the
Learned Additional Chief Metropolitan Magistrate - II, Calcutta
although the said Court has no jurisdiction to take cognizance.
Taking cognizance is absolutely bar in law of the offences stipulated
in Section 195 of the CrPC.
5. The original case was filed before the Learned 6th
Metropolitan Magistrate, Calcutta and the same was pending to the
said Bench. The said application was required to be filed before the
Court where the proceeding is pending. Any allegations with regard to
6
false statement, if made by any of the party thereof, that allegations
must be looked into by the Court, where the original case is pending.
6. However, overlooking the real provision of Section 340 read
with Section 195 of the CrPC, the Learned Additional Chief
Metropolitan Magistrate - II, Calcutta took cognizance of the alleged
offences treating as complaint case. Accordingly, same is bad in law
and shall be liable to be set aside.
7. On the contrary, learned counsel appearing on behalf of the
opposite party no. 1, on his usual fairness, candidly submitted that
actually, the said application was filed before the Learned 6th
Metropolitan Magistrate, Calcutta, where the original proceeding
under Section 12 read with Section 23 of the Protection of Women
from Domestic Violence Act, 2005 is pending. The same was
registered as Complaint Case No. CNS No. 1058 of 2021. However, it
was appeared before the Learned Additional Chief Metropolitan
Magistrate - II, Calcutta on 03.11.2021 and the learned counsel
moved the application, therefore, Learned Magistrate took cognizance
and transferred the same to the file of the Learned 6th Metropolitan
Magistrate at Calcutta for its disposal in accordance with law. The
order of cognizance is not bad in law when it would not, at all, cause
7
prejudice to the Petitioner/wife. Therefore, there is no need to
interfere with the said order of cognizance.
8. In support of his contention, the learned counsel appearing
on behalf of the opposite party no. 1 has placed reliance of two
judgments passed in the cases of Pritish Vs. State of Maharashtra
and Others1 and Pradeep S. Wodeyar Vs. State of Karnataka2.
9. I have heard the arguments and submissions made by the
learned counsels for both the parties and upon perusal of the
judgments referred by the learned counsel appearing on behalf of the
opposite party no. 1, this Court finds a moot question involved in the
present case is that whether the cognizance taken by the Learned
Additional Chief Metropolitan Magistrate - II, Calcutta in the case
being Complaint Case No. CNS No. 1058/2021 vide order dated 3rd
November, 2021 is correct or liable to be set aside?
10. It reveals from the application and arguments made by the
learned counsel appearing on behalf of the opposite party no. 1 that
the petition of complaint was actually filed under Section 340 of the
CrPC arising out of Misc. Case No. 9 of 2019 for commission of
1
(2002) 1 SCC 253;
2
(2021) 19 SCC 62.
8
offences for making false statements before the Court falls under
Sections 193/199/209 of the IPC. The application was filed originally
before the Learned 6th Metropolitan Magistrate at Calcutta registered
as Complaint Case No. CNS No. 1058/2021. But, wrongly the said
complaint case was appeared/placed before the Learned Additional
Chief Metropolitan Magistrate - II, Calcutta by the office concerned.
Cognizance was taken on the basis of complaint filed by the
complainant along with affidavits and certain documents seeking
prosecution of accused under Sections 193/199/209 of the IPC
though the allegation of the complainant was that the accused has
mis-leaded the Learned Court by giving false statements and
declarations in affidavit of assets and liabilities for obtaining interim
order of maintenance from the Learned 6th Metropolitan Magistrate,
Calcutta, thereby she has committed the offence of contempt of Court
because she made false statements and declaration on affidavit of
assets and liabilities and the Learned Magistrate allowed interim
maintenance and residence until the disposal of the case filed under
Section 12 read with Section 23 of the PWDV Act against the
complainant/husband on the basis of such false statements and
declaration.
9
11. The Learned Trial Court passed such order, inter alia, as
follows: -
"Under such circumstances, I find it absolutely proper
in the backdrop of the present market rate and status
of the both the parties, that the respondent is directed
to pay Rs. 39,000/- as maintenance to the petitioner
per month awaiting the disposal of this case. The
petitioner is accorded residential facilities in her
matrimonial house.
O.C., of the Amherst Street P.S. is directed to render
assistance to the petitioner in implementing order of
this Court.
Also, a copy of this order be forwarded to O.C.,
Ranigunj P.S.
Therefore, as above the petitioner is allowed
maintenance and residential order until the disposal
of this case.”
12. The petitioner/wife has committed offence of contempt of
Court, which is punishable under Sections 193/199/209 of the IPC
as such, the Opposite Party No. 1/husband filed an application
under Section 340 of the CrPC.
13. Before deciding the case in hand, this Court would like to
enumerate herein below the provisions of Sections 340 read with
Section 195 of the CrPC for ready reference.
10
Section 340 of CrPC reads as under:
“340. Procedure in cases mentioned in section
195.–(1) When, upon an application made to it in
this behalf or otherwise, any Court is of opinion
that it is expedient in the interests 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
11that 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 or by such officer of the Court as the Court
may authorise in writing in this behalf.
(4) In this section, “Court” has the same meaning
as in section 195.”
Section 195 of CrPC reads as under:
“195. Prosecution for contempt of lawful
authority of public servants, for offences
against public justice and for offences
relating to documents given in evidence. — (1)
No Court shall take cognizance–
(a) (i) of any offence punishable under sections 172
to 188 (both inclusive) of the Indian Penal Code, (45
of 1860), or
12
(ii) of any abetment of, or attempt to commit, such
offence, or
(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 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
13authorise in writing in this behalf, 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
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 the
appealable 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
situate:
Provided that–
14
(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 to be
subordinate;
(b) where appeals lie to a Civil and also to a
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.”
14. Upon perusal of the aforesaid provisions, it appears that an
application under Section 340 of the CrPC should be filed in the
Court where original proceeding is pending and the Court can be
Criminal, Civil or Tribunal in which the proceedings in relation to
which the offences, as alleged, were committed and where original
case filed is pending.
15. The purpose of Section 340 of CrPC is to preserve the
administration of justice and to allow the parties to provide evidence
for fair and proper adjudication of the case without being
misrepresentation, misleading or suppression of order being
intimidated.
15
16. Any party of the proceeding can file an application under
Section 340 read with Section 195 of the CrPC before the Court,
where the proceeding is pending for allegation of commission of the
offences of contempt of Court as stipulated in Section 195 of the
CrPC and upon such filing of complaint, the Court concerns, where
the proceeding is pending, can conduct preliminary enquiry into the
allegations made by the party.
17. This Court would like to refer the observations made by the
Hon’ble Supreme Court in Pritish Vs. State of Maharashtra and
Others3 in paragraph nos. 8 and 9 as under:
8. Chapter XXVI of the Code contains provisions
“as to offences affecting the administration of
justice”. Among the 12 sections subsumed therein
we need consider only three. Section 340 consists
of four sub-sections of which only the first sub-
section is relevant for the purpose of this case.
Hence the said sub-section is extracted below:
“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 to3
(2002) 1 SCC 253;
16
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.”
9. Reading of the sub-section makes it clear that
the hub of this provision is formation of an opinion
by the court (before which proceedings were to be
held) that it is expedient in the interest of justice
that an inquiry should be made into an offence
which appears to have been committed. In order to
form such opinion, the court is empowered to hold a
preliminary inquiry. It is not peremptory that such
preliminary inquiry should be held. Even without
such preliminary inquiry the court can form such an
opinion when it appears to the court that an offence
has been committed in relation to a proceeding in
that court. It is important to notice that even when
17
the court forms such an opinion it is not mandatory
that the court should make a complaint. This sub-
section has conferred a power on the court to do so.
It does not mean that the court should, as a matter
of course, make a complaint. But once the court
decides to do so, then the court should make a
finding to the effect that on the fact situation it is
expedient in the interest of justice that the offence
should further be probed into. If the court finds it
necessary to conduct a preliminary inquiry to reach
such a finding it is always open to the court to do
so, though absence of any such preliminary inquiry
would not vitiate a finding reached by the court
regarding its opinion. It should again be
remembered that the preliminary inquiry
contemplated in the sub-section is not for finding
whether any particular person is guilty or not. Far
from that, the purpose of preliminary inquiry, even
if the court opts to conduct it, is only to decide
whether it is expedient in the interest of justice to
inquire into the offence which appears to have been
committed.”
18. The law under Section 340 of CrPC on initiating proceedings
has been laid down in several judgments of the Hon’ble Supreme
Court. In the case of Chajoo Ram vs. Radhey Shyam4, the Hon’ble
Court, in para 7, held as follows:
4
(1971) 1 SCC 774
18“7…….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.”
19. Scope of Section 340 of CrPC has already been dealt with in
detail by the Constitution Bench of the Hon’ble Supreme Court in the
case of Iqbal Singh Marwah v. Meenakshi Marwah5. Relevant
paragraph of the aforesaid judgment is quoted herein as under: —
“23. In view of the language used in Section 340 Cr.
P.C. the Court is not bound to make a complaint
regarding commission of an offence referred to in
Section 195(1)(b), as the Section is conditioned by the
words “Court is of opinion that it is expedient in the
interest of justice.” This shows that such a course will5
(2005) 4 SCC 370
19be adopted only if the interest of justice requires and
not in every case. Before filing of the complaint, the
Court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests
of justice that enquiry should be made into any of the
offences referred to in Section 195(i)(b). 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 is possible that such forged document or
forgery may cause a very serious or substantial injury
to a person in the sense that it may deprive him of a
very valuable property or status or the like, but such
document may be just a piece of evidence produced or
given in evidence in Court, where voluminous
evidence may have been adduced and the effect of
such piece of evidence on the broad concept of
administration of justice may be minimal. In such
circumstances, the Court may not consider it
expedient in the interest of justice to make a
complaint. …………….”
20. In the case of Ashok Kumar Aggarwal v. Union of India6,
allegation of perjury was leveled against Investigating Officer who is
stated to have filed a false affidavit with respect to completion of
6
(2013) 15 SCC 539
20
enquiry but subsequently it was found that some further enquiry was
conducted with respect to the incident in question. Hon’ble Supreme
Court has discussed the scope of Section 340 read with Section 195
of Cr. P.C. and came to the conclusion that there was no attempt at
the part of the Investigating Officer to mislead the Court. Particularly
paragraph 8 is reproduced herein below:
“8. In this context, reference may be made of Section
340 under Chapter XXVI of the Cr. P.C., under the
heading of “Provisions as to Offences Affecting the
Administration of Justice”. This Chapter deals with
offences committed in or in relation to a proceeding in
the court, or in respect of a document produced or
given in evidence in a proceeding in the court and
enables the court to make a complaint in respect of
such offences if that court is of the view that it is
expedient in the interest of justice that an inquiry
should be made into an offence. Clause (b) of Section
195(1) Cr. P.C. authorises such court to examine
prima facie as it thinks necessary and then make a
complaint thereof in writing after having recorded a
finding to that effect as contemplated under Section
340(1) Cr. P.C. In such a case, the question remains
as to whether a prima facie case is made out which, if
unrebutted, may have a reasonable likelihood to
establish the specified offences and whether it is also
expedient in the interest of justice to take any action.
Thus, before lodging a complaint, the condition
21precedent for the court to be satisfied are that
material so produced before the court makes out a
prima facie case for a complaint and that it is
expedient in the interest of justice to have prosecution
under Section 193 IPC. (Vide: Karunakaran v. T.V.
EacharaWarrier, (1978) 1 SCC 18: AIR 1978 SC
290; and K.T.M.S. Mohd. v. Union of India,
(1992) 3 SCC 178: AIR 1992 SC 1831).”
21. The judgment referred by the opposite party no. 1 passed in
Pradeep S. Wodeyar Vs. State of Karnataka is not applicable in
the present case because in the said case, the order taking
cognizance inadvertently mentioned that the Special Judge has taken
cognizance against the accused instead of the offence, this would not
vitiate the entire proceeding particularly where the material
information on the commission of offence had brought to the notice
and had been perused by the Special Judge. So, taking cognizance by
the Special Court was, therefore, irregular. In order to prove that the
irregularity vitiates the proceeding, the accused must prove the
failure of justice as prescribed under Section 465 of the CrPC
determining the objective behind prescribing that cognizance has to
be taken of the offences and not the offender, a mere change in the
factum of cognizance order would not alter the effect of the order for
any injustice to be meted out.
22
22. Another judgment referred by the opposite party no. 1 is also
not applicable in the present case because in the said judgment, the
Hon’ble Supreme Court held that the accused cannot complain that
he was not heard during the preliminary enquiry conducted by the
reference Court under Section 340 of the CrPC because the persons
against whom proceedings were instituted have no such rights to
participate in the preliminary enquiry as held in the case of M.
Muthuswamy Vs. Special Police Establishment7.
23. Considering all aspects of the case in hand and as far as the
legal position is concerned, the procedure for taking cognizance of
offences under Sections 193/199/209 of IPC is governed by Section
195(1)(b)(i) read with Section 340 CrPC. It is submitted that there is
an absolute bar against taking of cognizance for the offences specified
under Section 195(1)(b)(i), Cr.P.C. by any means, except upon written
complaint by the concerned Court. This is even if the offence of giving
false evidence under Section 193 of IPC, or false statement made in
declaration which is by law receivable as evidence under Section 199
of IPC and/or dishonestly making false claim in Court under Section
209 of IPC were allegedly committed in the proceedings before a
7
1985 Cri LJ 420 (Mad)
23
Court of law. Explanation 2 to Section 193 IPC squarely covers the
case in hand since investigation directed by law is specified to be a
stage of judicial proceeding. The cognizance under Sections
193/199/209 of IPC is barred by Section 195(1)(b)(i) of Cr.P.C. as no
written complaint was lodged by the Learned Magistrate against the
Petitioner and until and unless the Court trying the proceeding filed
under Section 12 read with Section 23 of PWDV Act gave a finding
that the documents or affidavit of assets and liabilities submitted in
that Court were false and fabricated and directed for lodging of
complaint against the Petitioner/wife, the learned Court could not
have taken cognizance against the Petitioner/wife, therefore,
cognizance taken by the Learned Additional Chief Metropolitan
Magistrate – II, Calcutta is not permissible as such, the same is bad
in law.
24. Section 340 of Cr.P.C. prescribes the procedure as to how a
complaint may be preferred under Section 195 of Cr.P.C. While under
Section 195 of Cr. P.C., it is open to the Court before which the
offence was committed to prefer a complaint for the prosecution of
the offender, Section 340 Cr. P.C. prescribes the procedure as to how
that complaint may be preferred. Provisions under Section 195 Cr.
P.C. are mandatory and no Court can take cognizance of offences
24
referred to therein.
25. Accordingly, CRR 664 of 2022 is allowed. Consequently,
connected applications, if any, are also disposed of.
26. Interim order, if any, is hereby vacated.
27. Impugned Order dated 03.11.2021 passed by the Learned
Additional Chief Metropolitan Magistrate – II, Calcutta in the
Complaint Case No. CNS No. 1058 of 2021 is hereby set aside.
28. All parties shall act on the server copy of this order duly
downloaded from the official website of this Court.
29. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(Ajay Kumar Gupta, J)
P.A./Shreen
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