Ashish Sharma vs State Of H.P. And Ors on 3 July, 2025

Himachal Pradesh High Court

Ashish Sharma vs State Of H.P. And Ors on 3 July, 2025

Neutral Citation No. ( 2025:HHC:20998 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 482 of 2025

.

Reserved on: 21.06.2025

Date of Decision: 03.07.2025.

          Ashish Sharma                                             ...Petitioner





                                        Versus

          State of H.P. and ors.                                    ...Respondents





          Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes

For the Petitioner : Mr. Ashish Sharma,
petitioner in person.

For Respondents No.1 & 2 : Mr. Jitender Sharma,

Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

quashing and setting aside the order dated 02.05.2025 passed

by learned Additional Sessions Judge (CBI Court), Shimla

(learned Revisional Court) and order dated 02.09.2024 passed

by learned Judicial Magistrate, First Class, Court No.5, Shimla,

HP (learned Trial Court), vide which, the application for

registration of the FIR for the commission of offences
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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punishable under Sections 192, 197, 199, 200, 205, 406, 420,

120B, 468 to 471 etc. of Indian Penal Code (IPC) was dismissed.

.

2. Briefly stated, the facts giving rise to the present

petition are that the petitioner filed an application before the

learned Trial Court for the registration of the FIR, asserting

that an affidavit was filed by the respondent No. 3 before the

Human Rights Commission falsely describing herself to be a

Principal of MASDAV Public School. The matter was reported to

the police, but no action was taken. Hence, it was prayed that

an FIR be registered against the respondent no. 3.

3. Learned Trial Court held that the application did not

disclose that the error in the designation was proved to be

false, and the filing of the false affidavit led to the formation of

an erroneous opinion touching the matter pending before the

Human Rights Commission. Accordingly, the application was

dismissed.

4. The petitioner filed a revision, which was decided by

the learned Additional Sessions Judge, (CBI Court) (learned

Revisional Court). Learned Revisional Court held that the

offences alleged in the application are non-cognizable and no

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Court can take cognisance of such offences except on the

complaint made in writing by the authority before whom the

.

affidavit was filed. The record showed that the address

mentioned by the respondent was allowed to be corrected by

the Commission, subject to the payment of a cost of ₹1,000/-.

This clearly suggested that the affidavit submitted by the

respondent no. 4 was not false but contained a typographical

error. A Magistrate is not bound to direct an investigation

simply because an application has been filed before her. There

was no infirmity in the order passed by the learned Trial Court;

hence, the revision was dismissed.

5. Being aggrieved by the judgments passed by learned

Courts below, the present petition has been filed asserting that

the learned Trial Court violated the procedure and did not call

for a status report. The respondent No.3 had impersonated

herself as a principal and submitted a false affidavit. The

complaint was limited to impersonation and creating a false

affidavit. Learned Trial Court erred in dismissing the

application, and learned Revisional Court erred in upholding

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the order. Therefore, it was prayed that the orders passed by

learned Courts below be set aside.

.

6. I have heard the petitioner/complainant who

appeared in person. He submitted that he has a fundamental

right to make a complaint regarding the filing of the false

affidavit. Learned Trial Court erred in denying this right to him.

When his attention is drawn towards the provisions of Section

215 of BNSS (corresponding to Section 195 of Cr.P.C.), he

submitted that the said provision does not apply to the present

case.

7. Mr. Jitender Sharma, learned Additional Advocate

General for the respondent/State, supported the orders passed

by the learned Courts below.

8. I have given considerable thought to the

submissions made at the bar and have gone through the

records carefully.

9. The present petition has been filed under Section

528 of BNSS (corresponding to Section 482 of CrPC) against an

order dismissing the revision petition. It was laid down by the

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Hon’ble Supreme Court in Krishnan v. In Krishnaveni (1997) 4

SCC 241, the High Court can intervene under Section 482 of

.

CrPC (corresponding to Section 528 of BNSS) when there is a

grave miscarriage of justice or abuse of the process of the Court.

It was observed:

“10. Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person —

accused/complainant — cannot be allowed to take
recourse to the revision to the High Court under Section
397(1) or inherent powers of the High Court under

Section 482 of the Code since it may amount to
circumvention of the provisions of Section 397(3) or

Section 397(2) of the Code. It is seen that the High Court
has suo motu power under Section 401 and continuous
supervisory jurisdiction under Section 483 of the Code.

So, when the High Court on examination of the record
finds that there is a grave miscarriage of justice or abuse
of the process of the courts or the required statutory

procedure has not been complied with or there is failure
of justice or order passed or sentence imposed by the

Magistrate requires correction, it is but the duty of the
High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore,

to meet the ends of justice or to prevent abuse of the
process that the High Court is preserved with inherent
power and would be justified, under such circumstances,
to exercise the inherent power and in an appropriate
case even revisional power under Section 397(1) read
with Section 401 of the Code. As stated earlier, it may be
exercised sparingly to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of
proceedings. The object of a criminal trial is to render
public justice, to punish the criminal and to see that the

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trial is concluded expeditiously before the memory of
the witness fades out. The recent trend is to delay the
trial and threaten the witness or to win over the witness
by promise or inducement. These malpractices need to

.

be curbed, and public justice can be ensured only when
the trial is conducted expeditiously.

11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC

551: 1978 SCC (Cri) 10], a three-judge Bench was to
consider the scope of the power of the High Court under
Section 482 and Section 397(2) of the Code. This Court
held that the bar on the power of revision was put to

facilitate expedient disposal of the cases, but in Section
482, it is provided that nothing in the Code, which would
include Section 397(2) also, shall be deemed to limit or
affect the inherent powers of the High Court. On a

harmonious construction of the said two provisions on

this behalf, it was held that though the High Court has
no power of revision in an interlocutory order, still the
inherent power will come into play when there is no
provision for redressal of the grievance of the aggrieved

party. In that case, when allegations of defamatory
statements were published in the newspapers against
the Law Minister, the State Government decided to

prosecute the appellant for an offence under Section 500
IPC. After obtaining the sanction, on a complaint made

by the public prosecutor, cognisance of the commission
of the offence by the appellant was taken to trial in the

Sessions Court. Thereafter, the appellant filed an
application to dismiss the complaint on the ground that
the court had no jurisdiction to entertain the complaint.
The Sessions Judge rejected all the contentions and
framed the charges under Section 406. The Order of the
Sessions Judge was challenged in revision in the High
Court. On a preliminary objection raised on
maintainability, this Court held that the power of the
High Court to entertain the revision was not taken away

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under Section 397 or inherent power under Section 482
of the Code.

12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92:

.

1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a

four-judge Bench per majority had held that sub-
section (3) of Section 397, however, does not limit at all
the inherent powers of the High Court contained in

Section 482. It merely curbs the revisional power given
to the High Court or the Sessions Court under Section
397(1) of the Code. In the Rajan Kumar Machananda
case [1990 Supp SCC 132: 1990 SCC (Cri) 537], the case

related to the release of a truck from attachment,
obviously on the filing of an interlocutory application. It
was contended that there was a prohibition on the
revision by operation of Section 397(2) of the Code. In

that context, it was held that it was not revisable under

Section 482 in the exercise of inherent powers by
operation of sub-section (3) of Section 397. On the facts
in that case, it was held that by provisions contained in
Section 397(3), the revision is not maintainable. In the

Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333],
which related to the exercise of power to issue an order
of attachment under Section 146 of the Code, it was held

that the inherent power under Section 482 was
prohibited. On the facts, in that case, it could be said that

the learned Judges would be justified in holding that it
was not revisable since it was a prohibitory interim

order of attachment covered under Section 397(2) of the
Code but the observations of the learned Judges that the
High Court had no power under Section 482 of the Code
were not correct in view of the ratio of this Court
in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10]
as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC
(Cri) 695 : (1980) 2 SCR 380] and also in view of our
observations stated earlier. The ratio in the Deepti
case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not
apposite to the facts in the present case. To the contrary,

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in that case, an application for discharge of the accused
was filed in the Court of the Magistrate for an offence
under Section 498-A IPC. The learned Magistrate and
the Sessions Judge dismissed the petition. In the revision

.

at the instance of the accused, on a wrong concession
made by the counsel appearing for the State that the
record did not contain allegations constituting the

offence under Section 498-A, the High Court, without
applying its mind, had discharged the accused. On
appeal, this Court, after going through the record, noted
that the concession made by the counsel was wrong. The

record did contain the allegations to prove the charge
under Section 498-A IPC. The High Court, since it failed
to apply its mind, had committed an error of law in
discharging the accused, leading to the miscarriage of

justice. In that context, this Court held that the order of

the Sessions Judge operated as a bar to entertain the
application under Section 482 of the Code. In view of the
fact that the order of the High Court had led to the
miscarriage of justice, this Court had set aside the order

of the High Court and confirmed that of the Magistrate.

13. The ratio of the Simrikhia case [(1990) 2 SCC 437: 1990
SCC (Cri) 327] has no application to the facts in this case.

Therein, on a private complaint filed under Sections 452
and 323 IPC, the Judicial Magistrate, First Class had

taken cognisance of the offence. He transferred the case
for inquiry under Section 202 of the Code to the Second-

Class Magistrate, who, after examining the witnesses,
issued a process to the accused. The High Court,
exercising the power under Section 482, dismissed the
revision. But subsequently, on an application filed under
Section 482 of the Code, the High Court corrected it. The
question was whether the High Court was right in
reviewing its order. In that factual backdrop, this Court
held that the High Court could not exercise inherent
power for the second time. The ratio therein, as stated
above, has no application to the facts in this case.

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14. In view of the above discussion, we hold that though
the revision before the High Court under sub-section (1)
of Section 397 is prohibited by sub-section (3) thereof,
inherent power of the High Court is still available under

.

Section 482 of the Code and as it is paramount power of
continuous superintendence of the High Court under
Section 483, the High Court is justified in interfering

with the order leading to miscarriage of justice and in
setting aside the order of the courts below. It remitted
the case to the Magistrate for a decision on the merits
after consideration of the evidence. We make it clear that

we have not gone into the merits of the case. Since the
High Court has left the matter to be considered by the
Magistrate, it would be inappropriate at this stage to go
into that question. We have only considered the issue of

power and jurisdiction of the High Court in the context

of the revisional power under Section 397(1) read with
Section 397(3) and the inherent powers. We do not find
any justification warranting interference in the appeal.”

10. This position was reiterated in Rajinder

Prasad v. Bashir, (2001) 8 SCC 522, wherein it was held:

“…though the power of the High Court under Section

482 of the Code is very wide, the same must be exercised
sparingly and cautiously, particularly in a case where the
petitioner is shown to have already invoked the

revisional jurisdiction under Section 397 of the Code.
Only in cases where the High Court finds that there has
been failure of justice or misuse of judicial mechanism
or procedure, sentence or order was not correct, the
High Court may, in its discretion, prevent the abuse of
the process or miscarriage of justice by exercise of
jurisdiction under Section 482 of the Code. It was further
held, “Ordinarily, when revision has been barred by
Section 397(3) of the Code, a person –

accused/complainant – cannot be allowed to take

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recourse to the revision to the High Court under Section
397(1) or inherent powers of the High Court under
Section 482 of the Code since it may amount to

.

circumvention of provisions of Section 397(3) or Section

397(2) of the Code.”

11. A similar view was taken in Kailash Verma v. Punjab

State Civil Supplies Corporation, (2005) 2 SCC 571, and it was

held:

“5. It may also be noticed that this Court in Rajathi v. C.
Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118] said that
the power under Section 482 of the Criminal Procedure

Code has to be exercised sparingly and such power shall
not be utilised as a substitute for second revision.

Ordinarily, when a revision has been barred under
Section 397(3) of the Code, the complainant or the
accused cannot be allowed to take recourse to revision

before the High Court under Section 397(1) of
the Criminal Procedure Code, as it is prohibited under
Section 397(3) thereof. However, the High Court can

entertain a petition under Section 482 of the Criminal
Procedure Code when there is a serious miscarriage of

justice and abuse of the process of the court or when
mandatory provisions of the law are not complied with
and when the High Court feels that the inherent

jurisdiction is to be exercised to correct the mistake
committed by the revisional court.”

12. This position was reiterated in Shakuntala Devi v.

Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC

OnLine SC 292, wherein it was observed: –

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“24. It is well settled that the object of the introduction
of sub-section (3) in Section 397 was to prevent a second
revision to avoid frivolous litigation, but, at the same
time, the doors to the High Court to a litigant who had

.

lost before the Sessions Judge were not completely
closed and in special cases, the bar under Section 397(3)
could be lifted. In other words, the power of the High

Court to entertain a petition under Section 482 was not
subject to the prohibition under sub-section (3) of
Section 397 of the Code and was capable of being
invoked in appropriate cases. Mr Sanyal’s contention

that there was a complete bar under Section 397(3) of
the Code debarring the High Court from entertaining an
application under Section 482 thereof does not,
therefore, commend itself to us.

25. On the factual aspect, the Magistrate came to a

finding that the appellants were entitled to possession of
the disputed plot. It is true that while making such a
declaration under Section 145(4) of the Code, the
Magistrate could have also directed that the appellants

be put in possession of the same.

26. The question which is now required to be considered

is whether the High Court was right in quashing the
order passed by the Magistrate, which was confirmed by

the Sessions Judge, on the ground that the application
made by the appellants under Section 145(6) of the Code
was barred firstly by limitation under Article 137 of the

Limitation Act and also by virtue of Section 6 of the
Specific Relief Act, 1963.

13. Delhi High Court also took a similar view in Surender

Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —

“5. The issue regarding the filing of a petition before the
High Court after having availed the first revision
petition before the Court of Sessions has come up before

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the Supreme Court and this Court repeatedly. While
laying that section 397(3) Cr. P.C. laid the statutory bar
of the second revision petition, the courts have held that

.

the High Court did enjoy inherent power under

section 82 (sic) Cr. P.C. as well to entertain petitions
even in those cases. But that power was to be exercised
sparingly and with great caution, particularly when the

person approaching the High Court has already availed
remedy of first revision in the Sessions Court. This was
not that in every case the person aggrieved by the order
of the first revision court would have the right to be

heard by the High Court to assail the same order which
was the subject matter of the revision before the
Sessions Court. It all depends not only on the facts and
circumstances of each case but as on whether the

impugned order brought about a situation that is an

abuse of the process of the court, there was a serious
miscarriage of justice or the mandatory provisions of
law were not complied with. The power could also be
exercised by this Court if there was an apparent mistake

committed by the revisional court. Reference in this
regard can be made to the judgments of the Supreme
Court in Madhu Limave v. State of Maharashtra (1977) 4

SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2

SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi
Administration) 1980 Cri LJ 202,
Krishnan v. Krishnaveni and Kailash Verma v. Punjab State

Civil Supplies Corporation (2005) 2 SCC 571.”

14. It is apparent from the judgments that the High

Court has a limited jurisdiction and it can rectify a serious

miscarriage of justice or non-compliance with a mandatory

provision of law while exercising its jurisdiction under Section

528 of BNS (482 of the Cr. P.C).

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15. It was specifically asserted by the

petitioner/complainant that a false affidavit was filed before

.

the Human Rights Commission. Section 13 (5) of the Protection

of Human Rights Act makes every proceeding before the

Commission a judicial proceeding. It reads as under:

“Every proceeding before the Commission shall be
deemed to be a judicial proceeding within the meaning

of sections 193 and 228, and for the purposes of section
196, of the Indian Penal Code, and the Commission shall
be deemed to be a civil Court for all the purposes of

section 195 and Chapter XXVI of the Code of Criminal

Procedure, 1973.”

16. 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.

Section 195 (1) b (ii) provides that no Court shall take

cognizance of any offence of any offence described in Section

463, or punishable under Section 471, Section 475 or Section

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476, of the said IPC, when such offence is alleged to have been

committed in respect of a document produced or given in

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evidence in a proceeding in any Court except upon a complaint

made in writing of that Court.

17. In the present case, the application was filed for

registration of the FIR for the commission of offences

punishable under Sections 199, 200, 205, 468 to 471 of the IPC

in relation to an affidavit filed before the State Human Rights

Commission, therefore, the provisions of Section 195(1)(b) (i)

and Section 195 (1) (b) (ii) would be attracted to the present

case and it would be impermissible to take cognizance of the

commission of the aforesaid offences except upon a complaint

made in writing by the Human Rights Commission.

18. 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 on the

direction of the Magistrate. It was held that no such direction

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could have been given because of the bar under Section 195 of

the CrPC. 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
roffences 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

(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

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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

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

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Court to which such Court shall be deemed
subordinate;

(b) Where appeals lie to a Civil and to 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,
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

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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)

19. Therefore, no FIR could have been registered by

taking recourse to Section 175(3) of BNSS (corresponding to

Section 156 (3) of CrPC), and the learned Trial Court had rightly

declined to exercise the jurisdiction under Section 175 (3) of

BNSS.

20. 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
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

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Neutral Citation No. ( 2025:HHC:20998 )
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 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 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

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Neutral Citation No. ( 2025:HHC:20998 )
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 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.”

21. The offences punishable under Sections 199, 200,

and 205 of the IPC are described as non-cognisable in the First

Schedule of the CrPC, and the Magistrate could not have

ordered the registration of the FIR 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 as to why this aspect was not
looked into even by the High Court.”

22. 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

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Neutral Citation No. ( 2025:HHC:20998 )
punishable under Sections 171-G, 177, 181, 191, 193, 199, 200 of

the IPC. 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.

23. Therefore, no direction could have been issued to

register the FIR in the present case.

24. The offences punishable under Sections 406, 420,

120B, 197 and 192 are cognizable, but they are alleged to have

been committed in the course of the same transaction in which

the other non-cognizable offences were stated to have been

committed. In State of Himachal Pradesh versus Hirda Ram 1998

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Neutral Citation No. ( 2025:HHC:20998 )
(1) Crimes (HC) 89, a complaint was filed for the commission of

offences punishable under Sections 181, 420 and 468 of IPC.

.

This Court held that no cognisance for the commission of an

offence punishable under Section 181 of IPC could have been

taken based on the police challan because of the prohibition

contained in Section 195 of Cr.P.C. It was observed:-

[9] Admittedly, the respondent was sent up for trial for
the offences under Sections 181, 420 and 468 of the
Indian Penal Code. Section 195, Code of Criminal

Procedure, insofar as it is relevant for the purpose of the
present case, reads:

1. No Court shall take cognizance (i) of any offence
punishable under Sections 172 to 188 (both
inclusive) of the Indian Penal Code (45 of 1860), or

(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.

The offence under Section 181 of the Indian Penal Code

falls within the ambit of clause (a) (i) of sub-section (1)
of Section 195, Code of Criminal Procedure, quoted
above. Therefore, no court could have taken cognisance
of such an offence except on the complaint in writing of
the public servant concerned or of some other public
servant to whom he is administratively subordinate.
[10] In the present case, admittedly, no complaint in
writing has been made to the Court by the concerned
public servant or by some other public servant to whom
such concerned public servant is subordinate. The

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Neutral Citation No. ( 2025:HHC:20998 )
cognisance taken by the Learned Chief Judicial
Magistrate on the basis of the police report submitted to
him under Section 173 of the Code of Criminal Procedure.
Such cognisance was, therefore, bad and the entire trial

.

of the respondent stood Vitiated.”

25. It was contended that the Court could have taken

cognisance of the commission of an offence punishable under

Sections 420 and 468 of the IPC, as these were cognizable.

However, this submission was not accepted, and it was held

that it is not permissible for the Court to split up the challan

and take cognisance of the commission of a cognizable offence

while leaving the non-cognizable offence. It was observed:-

“[11] It was contended by the learned. Assistant

Advocate General that even though the learned
Magistrate could not have taken cognizance of the
offence under Section 181, Indian Penal Code on the basis

of a police report in view of the specific bar under
Section 195, Code of Criminal Procedure, the learned

Magistrate was fully competent and justified in taking
cognizance of the offences under Sections 420 and 468,
Indian Penal Code which are not covered by the bar

envisaged under Section 195 of the Code of Criminal
Procedure. The contention raised by the learned
Assistant Advocate General is without any merit.
[12] In Jit Kumar v. The State of Punjab 1987 SLJ 156, a
police challan for the offences under Sections 186, 353
and 379, the Indian Penal Code was put up for trial
against the accused therein. It was held by the High
Court of Punjab and Haryana that since the Court could
not take cognizance for an offence punishable under

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Neutral Citation No. ( 2025:HHC:20998 )
Section 186, Indian Penal Code in view of the specific bar
provided under Section 195 of the Code of Criminal
Procedure, the Court could not have also entertained the
challan in respect of the offences under Sections 353 and

.

379, Indian Penal Code as well since it was composite
challan. The Hon’ble Apex Court in State of Karnataka v.
Hemareddy and another AIR 1981 SC 1417, also had the

occasion to deal with a similar situation and it was held
that in cases where in the course of the same transaction
an offence for which no complaint by the court is
necessary under Section 195 of the Code of Criminal

Procedure and an offence for which such a complaint to
the Court is necessary, are committed, it is not possible
to split up and hold the prosecution of the accused for
the offences not mentioned in Section 195 of the Code of

Criminal Procedure should be upheld.

[13] In the present case as well the offences under
Sections 181 420, and 468 of, the Indian Penal Code are
alleged to have been committed in the course of the
same transaction and a composite challan in respect of

the three offences was submitted, by the police under
Section 173, Code of Criminal Procedure before the
learned Magistrate. Therefore, such a police challan

cannot be split up, and it cannot be said that the
prosecution of the respondent for the offences not

mentioned in Section 195 of the Code of Criminal
Procedure was valid and is to be upheld.

[14] Consequently, the learned Magistrate erred in
taking cognizance of the offence in view of the specific
bar under Section 195 of the Code of Criminal Procedure
and the entire trial of the respondent stood vitiated the
acquittal of the respondent, as recorded by the learned
Additional Sessions Judge, Mandi has, therefore, to be
upheld.”

26. Therefore, in view of the binding precedent of this

Court, it is impermissible to leave the non-cognizable offences

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Neutral Citation No. ( 2025:HHC:20998 )
and take cognizance of the cognizable offence when the

offences are committed in the course of the same transaction;

.

hence, the whole of the application would disclose the

commission of a non-cognizable offence and the jurisdiction

under Section 175(3) of BNSS could not have been exercised by

learned Trial Court.

27. The petitioner has also arrayed the learned Judge of

the CBI Court as a respondent. This is impermissible. It was

laid down by the Delhi High Court in R.P. Khosla vs. Company

Law Board 2013 LawSuit (Del..) 4088 that a Judicial/Quasi-

Judicial Authority who had passed an award is not required to

be impleaded when the award is under challenge. It was

observed:

8. The petitioners have impleaded the Company Law
Board and the Member (Judicial) of the Company Law
Board as respondents No. 1 and 2, which is not

permissible in law. The petitioners have also sent the
advance copy of the petition to them by email. Such a
practice has been strongly deprecated by the Supreme
Court in Savitri Devi v. District Judge, Gorakhpur, 1999 (2)
SCC 577. The Supreme Court held that impleading the
judicial officers as contesting respondent amounts to
unnecessary disturbance to the functions of the judicial
officers concerned. The observation made by the
Supreme Court are reproduced hereunder:-

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Neutral Citation No. ( 2025:HHC:20998 )
“14. Before parting with this case, it is necessary
for us to point out one aspect of the matter, which
is rather disturbing. In the writ petition filed in the
High Court as well as the special leave petition

.

filed in this Court, the District Judge, Gorakhpur
and the 4th Additional Civil Judge (Junior
Division), Gorakhpur, are shown as respondents

and in the special leave petition, they are shown as
contesting respondents. There was no necessity
for impleading the judicial officers who disposed
of the matter in a civil proceeding when the writ

petition was filed in the High Court; nor is there
any justification for impleading them as parties in
the special leave petition and describing them as
contesting respondents. We do not approve of the
r course adopted by the petitioner, which would

cause unnecessary disturbance to the functions of
the judicial officers concerned. They cannot be in
any way equated to the officials of the
Government. It is high time that the practice of

impleading judicial officers disposing of civil
proceedings as parties to writ petitions under
Article 226 of the Constitution of India or special

leave petitions under Article 136 of the
Constitution of India was stopped. We are strongly

deprecating such a practice.”

9. In Fakeerappa v. Karnataka Cement Pipe Factory, 2004

(2) SCC 473, the Supreme Court held that the
impleadment of the High Court of Karnataka and the
Supreme Court by the petitioner was held to be a gross
abuse of process of law. The Supreme Court held as
under:

“10. Before we part with the case, we think it
necessary to point out a somewhat shocking state
of affairs, which came to our notice. In the claim
petition filed before the Tribunal, this Court and
the High Court of Karnataka, Bangalore, were

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impleaded as respondents for no sensible reason,
and in gross abuse of process of law, though by
hindsight the absurdity seems to have been set
right by ordering deletion. Though these parties

.

were given up during adjudication, it is clear that
the claim petition was filed without any
application of mind by the counsel concerned as to

who would be a proper or necessary party or even
a formal party and a great sense of responsibility
is expected to be exhibited by those concerned. At
least while impleading a party in a claim petition,

proper attention ought to be devoted, which sadly
was not done.”

10. Same view was taken by the Division Bench of this
Court in Union Public Service Commission v. Shiv Shambu,

2008 9 AD(Del) 289 and Single Bench of this Court in Sat

Prakash Rana v. The Lieutenant Governor of Delhi, 2010
AIR(Del) 100 and R.K. Saxena v. Ravinder Balwani, 2010
174 DLT 203. In the Union Public Service Commission,
the Division Bench also noted that this Court has

repeatedly issued practice directions that the judicial or
quasi-judicial body or tribunal, whose order is under
challenge, should not be impleaded as a party

respondent.

28. Therefore, the learned Presiding Officer was

wrongly arrayed as respondent before this Court, and such a

practice has to be strongly deprecated and not to be

encouraged. This Court would have imposed exemplary costs

for such an act, but considering that the petition was filed by

the party in person, the Court refrains from imposing the costs.

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29. Thus, there is no reason to exercise the inherent

jurisdiction of the Court to set aside the orders passed by

.

learned Courts below. Hence, the present petition fails, and the

same is dismissed, so also the pending miscellaneous

application, if any.

(Rakesh Kainthla)
3 July 2025
rd
Judge
(Saurav pathania)

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