Himachal Pradesh High Court
Ashish Sharma vs State Of H.P. & Ors on 28 July, 2026
2026:HHC:30947
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No: 368 of 2026
.
Reserved on: 20.07.2026
Date of Decision: 28.07.2026
Ashish Sharma ..Petitioner
Versus
of
State of H.P. & Ors. ...Respondents
Coram rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Petitioner in person.
For Respondent No.1 : Mr Ajit Sharma, Deputy
Advocate General.
For Respondents No.2 &3 : Nemo
Rakesh Kainthla, Judge
The petitioner has filed the present petition against the
order dated 22.01.2026 passed by the learned Additional Sessions,
Judge, CBI Court (learned Revisional Court) vide which the order
dated 30.07.2024 passed by the learned Additional Chief Judicial
Magistrate, Court No. 1 Shimla (learned Trial Court) was upheld.
(The parties shall hereinafter be referred to in the same manner as
they were arrayed before the learned Trial Court for convenience).
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 petitioner/complainant filed a complaint
.
before learned Trial Court for the registration of the FIR for the
commission of offences punishable under Sections 177, 181, 191,
192, 193, 195, 197, 198, 199, 200, 205, 209, 406, 408, 417, 420,
464, and 468-471 of the IPC. It was asserted that the complainant
of
made a complaint against accused no. 1 before the HP State
Human Rights rtCommission, Shimla, for violating the
complainant’s human rights. The accused no. 1 filed an affidavit
through accused no. 2 asserting that the complainant had worked
from 03.03.2008 till 06.12.2019. These averments are false because
the complainant had worked till 07.12.2019. The accused were
aware of the fact that the complainant’s attendance was marked
on 07.12.2019, but they filed a false affidavit before the State
Human Rights Commission. The complainant made a complaint to
SP Shimla and SHO Police Station, Chhota Shimla for registration
of the FIR. However, no FIR was registered. Hence, a complaint
was filed to take cognisance, register an FIR, grant police remand
of 15 days and pay a victim compensation of ₹5,00,000/- to the
complainant.
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3. Learned Trial Court held that the complainant had filed
a copy of the e-mail showing that a complaint was made to S.P.,
.
Shimla and SHO, PS Chhota Shimla, but no letter was posted to
S.P. Shimla. There was no compliance with Section 154(3) of the
Code of Criminal Procedure (CrPC) and Section 173(4) of Bharatiya
Nagarik Suraksha Sanhita (BNSS), 2023. The complaint was not
of
maintainable in the absence of compliance with Section 154(3) of
the CrPC or Section 173(4) of BNSS. Hence, the complaint was
rt
dismissed.
4. Being aggrieved by the order passed by the learned
Trial Court, the complainant/petitioner filed a revision which was
decided by the learned Additional Sessions Judge, CBI Court,
Shimla (learned Revisional Court). The learned Revisional Court
held that the affidavit was submitted before the Human Rights
Commission. The complainant had also filed a complaint before
the Human Rights Commission, but no action was taken, and the
Magistrate could not have ordered the registration of the FIR
without the complaint of the Human Rights Commission. There
was no infirmity in the order passed by the learned Trial Court.
Hence, the revision was dismissed.
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5. Being aggrieved by the judgment and order passed by
the learned Courts below, the complainant/petitioner has filed the
.
present petition, asserting that the learned Courts below erred in
appreciating the material on record. The judgment of the Hon’ble
Supreme Court in Lalita Kumar versus State of U.P. was not
considered. The evidence produced before the learned Courts
of
below showed the commission of a cognizable offence. The
complaint was duly made to the SP and SHO, and it was wrongly
rt
held that there was non-compliance of Section 154(3) of the CrPC.
The complaint was filed under Section 175(3) of the BNSS and not
under Section 215 or 379 of the BNSS. The judgment was not
written as per the Supreme Court guidelines. Therefore, it was
prayed that the present petition be allowed, an FIR be registered
against the accused and compensation of ₹5,00,000/- be awarded
to the complainant.
6. I have heard the petitioner who appeared in person and
Mr Ajit Sharma, learned Deputy Advocate General for respondent
No.1/State.
7. The petitioner submitted that the learned Courts below
erred in appreciating the materials on record. The complainant
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had filed a copy of the e-mail showing that the complaint was sent
to the SP Shimla and SHO. However, the learned Trial Court held
.
that there was non-compliance of Section 154(3) of the CrPC. The
accused had filed a false affidavit before the State Human Rights
Commission. The affidavit was prepared outside the Commission,
and it was wrongly held that the complaint by the Commission
of
was required. Therefore, he prayed that the present petition be
allowed and the order passed by learned Courts below be set aside.
rt
8. Mr Ajit Sharma, learned Deputy Advocate General for
respondent No.1/State has submitted that the dispute involves
private parties and the State has nothing to say in the present
matter.
9. I have given a considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. 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 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
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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 theHigh 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 Sectionof
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
rt
that there is a grave miscarriage of justice or abuse of the
process of the courts or the required statutory procedurehas 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 ofjustice would ensue. It is, therefore, to meet the ends of
justice or to prevent abuse of the process that the High
Court is endowed with inherent power and would bejustified, under such circumstances, to exercise the
inherent power and, in an appropriate case, even revisionalpower under Section 397(1) read with Section 401 of the
Code. As stated earlier, it may be exercised sparingly toavoid 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 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::: Downloaded on – 28/07/2026 20:34:53 :::CIS
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2026:HHC:30947the 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 saidtwo 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 whenof
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
rt
prosecute the appellant for an offence under Section 500
IPC. After obtaining the sanction, on a complaint made bythe 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 nojurisdiction to entertain the complaint. The Sessions Judge
rejected all the contentions and framed the charges under
Section 406. The Order of the Sessions Judge waschallenged in revision in the High Court. On a preliminary
objection raised on maintainability, this Court held that thepower of the High Court to entertain the revision was not
taken away 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::: Downloaded on – 28/07/2026 20:34:53 :::CIS
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2026:HHC:30947was 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
the 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 wasof
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
rt
the observations of the learned Judges that the High Court
had no power under Section 482 of the Code were notcorrect 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, in that case, an application for discharge ofthe accused was filed in the Court of the Magistrate for an
offence under Section 498-A IPC. The learned Magistrateand 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 thatthe 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
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2026:HHC:30947Code. 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 452and 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-Classof
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
rt
the Code, the High Court corrected it. The question was
whether the High Court was right in reviewing its order. Inthat 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.
14. In view of the above discussion, we hold that though the
revision before the High Court under sub-section (1) ofSection 397 is prohibited by sub-section (3) thereof,
inherent power of the High Court is still available underSection 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 withthe 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
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2026:HHC:30947397(3) and the inherent powers. We do not find any
justification warranting interference in the appeal.”
11. 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 jurisdictionof
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
rt
not correct, the High Court may, in its discretion, prevent
the abuse of the process or miscarriage of justice byexercise 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 recourseto 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 ofSection 397(3) or Section 397(2) of the Code.”
12. 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
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2026:HHC:30947entertain 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.”
13. This position was reiterated in Shakuntala Devi v.
Chamru Mahto, (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC
of
OnLine SC 292, wherein it was observed: –
“24. It is well settled that the object of the introduction of
rt
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
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2026:HHC:30947firstly by limitation under Article 137 of the Limitation Act
and also by virtue of Section 6 of the Specific Relief Act,
1963.
.
14. 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 theof
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
rt
did enjoy inherent power under section 82 (sic) Cr. P.C. as
well to entertain petitions even in those cases. But thatpower was to be exercised sparingly and with great caution,
particularly when the person approaching the High Court
has already availed the remedy of first revision in the
Sessions Court. This was not that in every case the personaggrieved 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 beforethe Sessions Court. It all depends not only on the facts and
circumstances of each case but also on whether theimpugned 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 notcomplied 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.”
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15. 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 CrPC).
of
16. It was specifically asserted by the
petitioner/complainant that a false affidavit was filed before the
rt
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 theIndian Penal Code, and the Commission shall be deemed to
be a civil Court for all the purposes of section 195 andChapter XXVI of the Code of Criminal Procedure, 1973.”
17. Chapter XXVI of the Code of Criminal Procedure deals
with the offences affecting the administration of justice. Section
195 (1) (b) (i) of the CrPC provides that no Court shall take
cognizance 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
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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 476, of the said IPC, 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 except upon a
of
complaint made in writing of that Court.
18.
rt
In the present case, the application was filed for
registration of the FIR for the commission of offences punishable
under Sections 177, 181, 191, 192, 193, 195, 197, 198, 199, 200, 205,
209, 406, 408, 417, 420, 464, 468-471 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.
19. 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 and forgery
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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 could have been
given because of the bar under section 195 of the CrPC. It was
observed on page 739:
of
“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
rt
offence was committed, it was during the proceedings of
the execution of the decree being carried out by an officialof the Court at the directions of the Court. Section 195 of Cr.
P.C. prohibits taking cognisance of any offence in the
following words:
195. Prosecution for contempt of the lawful authority of
public servants, for offences against public justice and
offences relating to documents given in evidence–
(1) No Court shall take cognisance–
(a) (i) If any offence punishable under Sections 172
to 188 (both inclusive) of the Penal Code, 1860, or
(ii) Of any abetment of, attempt to commit,
such offence, or
(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::: Downloaded on – 28/07/2026 20:34:53 :::CIS
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2026:HHC:30947such 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
of
offence specified in Sub-clause (i) or Sub-
clause (ii), except on the complaint in writing
rt 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:
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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 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.
of
5. It is apparent that in order to take cognisance 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
rt
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 offence, as alleged,
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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)
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
of
any cognizable offence is disclosed before ordering an
investigation. It was observed:
rt
“11. However, what is important to observe is thatwhenever 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 ofascertaining whether the allegations levelled in the
complaint constitute any cognizable offence or not. In other
words, the Magistrate may not undertake the exercise toascertain whether the complaint is false or otherwise;
however, the Magistrate is obliged before he proceeds to
pass an order for police investigation to closely consider
whether the necessary ingredients to constitute the alleged
offence are borne out on plain reading of the complaint.
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
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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.
of
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
rt
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 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. Therefore, no FIR could have been registered by taking
recourse to Section 175(3) of BNSS (corresponding to Section 156
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(3) of CrPC), and the learned Trial Court had rightly declined to
exercise the jurisdiction under Section 175 (3) of BNSS.
.
22. The offences punishable under Sections 176, 181, 193,
195, 197, 198, 199, 200, 205 and 209 of the IPC are shown to be
non-cognisable in the First Schedule of the CrPC, and the
of
Magistrate could not have ordered the registration of the FIR
when the application disclosed non-cognisable offences. It was
rt
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-cognizable
offence). It was observed:
“20. We fail to understand how the Magistrate could have
directed the police to investigate the offence of defamationpunishable 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.”
23. 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:
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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.
of
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.
rt
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.
24. Therefore, no direction could have been issued to
register the FIR in the present case.
25. The offences punishable under Sections 406, 408, 470,
420, 464, 468 and 471 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 (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
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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 cognisance (i) of any offence
of
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
rt
offence. Except on the complaint in writing of the
public servant concerned or of some other publicservant 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 cognisance
was 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.”
26. It was contended that the Court could have taken
cognisance of the commission of an offence punishable under
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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: –
of
“[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
rt
the specific bar under Section 195, Code of Criminal
Procedure, the learned Magistrate was fully competent andjustified 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 AssistantAdvocate 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 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
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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
of
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.
rt
[14] Consequently, the learned Magistrate erred in taking
cognisance 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.”
27. Therefore, in view of the binding precedent of this
Court, it is impermissible to leave the non-cognizable offences
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.
28. It was submitted that the learned Trial Court had erred
in dismissing the complaint on the ground that compliance of
Section 154(3) was not made out in the present case, which is
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incorrect because the copy of the e-mail (PE3) was filed to show
that a complaint was made to SHO Police Station Chhota Shimla
.
and SP, Shimla. The copy of the e-mail only mentions the e-mail
addresses, but there is nothing on record to show that these e-
mail addresses pertained to SP Shimla or Police Station, Chhota
Shimla; the burden of establishing that the complainant had made
of
a complaint to the SHO and SP Shimla was upon him. Therefore,
he was required to bring on record the material to show that the
rt
email addresses mentioned by him pertained to SHO, Police
Station East, Chotta Shimla and SP Shimla. In the absence of any
such evidence, the learned Trial Court cannot be faulted for
holding that there was non-compliance of the provision of Section
154 (3) of the CrPC.
29. It was submitted that the judgment of Priyanka
Srivastava versus State of U.P. (2015) 6 SCC 287 does not apply to the
present case because the complaint was filed under Bhartiya
Nagrik Suraksha Sanhita (BNSS), 2023. This submission is only
stated to be rejected. It was laid down by the Hon’ble Supreme
Court in Om Prakash Ambadkar v. State of Maharashtra, (2026) 2
SCC 622: 2025 SCC OnLine SC 238 that the requirements of Priyanka
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Srivastava (supra) have been codified under BNSS. It was observed
at page 637:
.
34. A comparison of Section 175(3) BNSS with Section 156(3)
CrPC indicates three prominent changes that have been
introduced by the enactment of BNSS as follows:
(a) First, the requirement of making an application to the
Superintendent of Police upon refusal by the officer in
charge of a police station to lodge the FIR has been madeof
mandatory, and the applicant making an application
under Section 175(3) is required to furnish a copy of the
application made to the Superintendent of Police under
Section 173(4), supported by an affidavit, while making
rt
the application to the Magistrate under Section 175(3).
(b) Secondly, the Magistrate has been empowered to
conduct such an enquiry as he deems necessary before
making an order directing registration of FIR.
(c) Thirdly, the Magistrate is required to consider the
submissions of the officer in charge of the police station
as regards the refusal to register an FIR before issuing
any directions under Section 175(3).
35. The introduction of these changes by the legislature can
be attributed to the judicial evolution of Section 156CrPC
undertaken by a number of decisions of this Court. In
Priyanka Srivastava v. State of U.P. [Priyanka Srivastava v.
State of U.P., (2015) 6 SCC 287: (2015) 3 SCC (Civ) 294: (2015) 4
SCC (Cri) 153], this Court held that prior to making an
application to the Magistrate under Section 156(3) CrPC, the
applicant must necessarily make applications under
Sections 154(1) and 154(3). It was further observed by the
Court that applications made under Section 156(3) CrPC
must necessarily be supported by an affidavit sworn by the
applicant. The reason given by the Court for introducing
such a requirement was that applications under Section
156(3) CrPC were being made in a routine manner and in a
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number of cases only with a view to causing harassment to
the accused by registration of FIR.
36. It was further observed in Priyanka Srivastava [Priyanka
.
Srivastava v. State of U.P., (2015) 6 SCC 287: (2015) 3 SCC (Civ)
294: (2015) 4 SCC (Cri) 153] that the requirement of
supporting the complaint with an affidavit would ensure
that the person making the application is conscious and also
to see that no false affidavit is made. Once an affidavit is
found to be false, the applicant would be liable for
prosecution in accordance with the law. This would deter
of
him from casually invoking the authority of the Magistrate
under Section 156(3).
37. The relevant observations made by the Court are
rt
reproduced hereinbelow: (Priyanka Srivastava case [Priyanka
Srivastava v. State of U.P., (2015) 6 SCC 287: (2015) 3 SCC (Civ)
294: (2015) 4 SCC (Cri) 153], SCC pp. 305-306, paras 27-31)
“27. Regard being had to the aforesaid enunciation of
law, it needs to be reiterated that the learned Magistrate
has to remain vigilant with regard to the allegations made
and the nature of the allegations and not to issue directions
without proper application of mind. He has also to bear in
mind that sending the matter would be conducive to justice,
and then he may pass the requisite order. The present is a
case where the accused persons are serving in high
positions in the Bank. We are absolutely conscious that
the position does not matter, for nobody is above the
law. But the learned Magistrate should take note of the
allegations in entirety, the date of the incident and
whether any cognizable case is remotely made out. It is
also to be noted that when a borrower of the financial
institution covered under the SARFAESI Act invokes the
jurisdiction under Section 156(3) CrPC, and also there is a
separate procedure under the Recovery of Debts Due to
Banks and Financial Institutions Act, 1993, an attitude of
more care, caution, and circumspection has to be
adhered to.
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28. Issuing a direction stating “as per the application” to
lodge an FIR creates a very unhealthy situation in society
and also reflects the erroneous approach of the learned
.
Magistrate. It also encourages unscrupulous and
unprincipled litigants, like Respondent 3, namely, Prakash
Kumar Bajaj, to take adventurous steps with courts to bring
the financial institutions to their knees. As the factual
exposition would reveal, Respondent 3 had prosecuted
the earlier authorities, and after the matter was dealt
with by the High Court in a writ petition recording a
of
settlement, he did not withdraw the criminal case and
wait for some kind of situation where he could take
vengeance as if he were the emperor of all he surveys. It
is interesting to note that during the tenure of Appellant
rt
1, who is presently occupying the position of Vice-
President, neither was the loan taken nor was the default
made, nor was any action under the SARFAESI Act taken.
However, the action under the SARFAESI Act was taken for
the second time at the instance of the present Appellant
1. We are only stating about the devilish design of
Respondent 3 to harass the appellants with the sole
intent to avoid the payment of the loan. When a citizen
avails a loan from a financial institution, it is his
obligation to pay back and not play truant or, for that
matter, play possum. As we have noticed, he has been able
to do such adventurous acts as he has the embedded
conviction that he will not be taken to task because an
application under Section 156(3) CrPC is a simple application
to the court for the issue of a direction to the investigating
agency. We have been apprised that a carbon copy of a
document is filed to show compliance with Section 154(3),
indicating it has been sent to the Superintendent of Police
concerned.
29. At this stage, it is seemly to state that power under
Section 156(3) warrants application of the judicial mind. A
court of law is involved. It is not the police taking steps at the
stage of Section 154 of the Code. A litigant at his own whim
cannot invoke the authority of the Magistrate. A principled
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and really grieved citizen with clean hands must have free
access to invoke the said power. It protects the citizens, but
when pervert litigations takes this route to harass their
.
fellow citizens, efforts are to be made to scuttle and curb the
same.
30. In our considered opinion, a stage has come in this
country where Section 156(3)CrPC applications are to be
supported by an affidavit duly sworn by the applicant who
seeks the invocation of the jurisdiction of the Magistrate.
That apart, in an appropriate case, the learned Magistrate
of
would be well advised to verify the truth and also verify the
veracity of the allegations. This affidavit can make the
applicant more responsible. We are compelled to say so as
such kind of applications are being filed in a routine manner
rt
without taking any responsibility whatsoever, only to harass
certain persons. That apart, it becomes more disturbing and
alarming when one tries to pick up people who are passing
orders under a statutory provision which can be challenged
under the framework of the said Act or under Article 226 of
the Constitution of India. But it cannot be done to take undue
advantage in a criminal court as if somebody is determined
to settle the scores.
31. We have already indicated that there has to be prior
applications under Sections 154(1) and 154(3) while filing a
petition under Section 156(3). Both aspects should be clearly
spelt out in the application, and the necessary documents to
that effect shall be filed. The warrant for giving a direction
that an application under Section 156(3) be supported by an
affidavit is so that the person making the application should
be conscious and also endeavour to see that no false affidavit
is made. It is because once an affidavit is found to be false, he
will be liable for prosecution in accordance with the law.
This will deter him from casually invoking the authority of
the Magistrate under Section 156(3). That apart, we have
already stated that the veracity of the same can also be
verified by the learned Magistrate, regard being had to the
nature of the allegations of the case. We are compelled to say
so as a number of cases pertaining to fiscal sphere,
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matrimonial dispute/family disputes, commercial offences,
medical negligence cases, corruption cases and the cases
where there is abnormal delay/laches in initiating criminal
.
prosecution, as are illustrated in Lalita Kumari [Lalita
Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] are being filed. That apart, the learned Magistrate
would also be aware of the delay in lodging of the FIR.”
(emphasis supplied)
38. In a recent pronouncement of this Court in Babu
Venkatesh v. State of Karnataka [Babu Venkatesh v. State of
of
Karnataka, (2022) 5 SCC 639 : (2022) 2 SCC (Cri) 455], the
observations made in Priyanka Srivastava [Priyanka
Srivastava v. State of U.P., (2015) 6 SCC 287 : (2015) 3 SCC (Civ)
294 : (2015) 4 SCC (Cri) 153] were referred to and it was held
rt
as follows: (Babu Venkatesh case [Babu Venkatesh v. State of
Karnataka, (2022) 5 SCC 639 : (2022) 2 SCC (Cri) 455], SCC p.
646, paras 24-26)
“24. This Court has clearly held that a stage has come where
applications under Section 156(3) CrPC are to be supported
by an affidavit duly sworn by the complainant who seeks the
invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an appropriate case, the
learned Magistrate would be well advised to verify the truth
and also verify the veracity of the allegations. The Court has
noted that applications under Section 156(3) CrPC are filed
in a routine manner without taking any responsibility, only
to harass certain persons.
26. This Court has further held that, prior to the filing of a
petition under Section 156(3) CrPC, there have to be
applications under Sections 154(1) and 154(3) CrPC. This
Court emphasises the necessity to file an affidavit so that the
persons making the application should be conscious and not
make a false affidavit. With such a requirement, the persons
would be deterred from causally invoking the authority of
the Magistrate, under Section 156(3) CrPC. Inasmuch as if
the affidavit is found to be false, the person would be liable
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for prosecution in accordance with the law.” (emphasis
supplied)
39. In light of the judicial interpretation and evolution of
.
Section 156(3)CrPC by various decisions of this Court as
discussed above, it becomes clear that the changes
introduced by Section 175(3) BNSS to the existing scheme of
Section 156(3) merely codify the procedural practices and
safeguards which have been introduced by judicial decisions
aimed at curbing the misuse of invocation of powers of a
Magistrate by unscrupulous litigants for achieving ulterior
of
motives.
40. Further, by requiring the Magistrate to consider the
submissions made by the police officer concerned before
rt
proceeding to issue directions under Section 175(3), BNSS
has affixed greater accountability on the police officer
responsible for registering FIRs under Section 173.
Mandating the Magistrate to consider the submissions of
the police officer concerned also ensures that the
Magistrate applies his mind judicially while considering
both the complaint and the submissions of the police
officer, thereby ensuring that the requirement of passing
reasoned orders is complied with in a more effective and
comprehensive manner.
30. It was submitted that the judgment of Priyanka
Srivastava (supra) did not apply to the present case because the
complaint was not filed under Section 156 (3) of CrPC or 175 of
BNSS. This submission will not help the petitioner. The
complainant had made a specific prayer in the complaint, ‘take
cognisance of the offence to register an FIR against all defendants
and others involved in an illegal act of cognisable offence’, clearly
showing that the intent was to get the FIR registered.
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31. In view of the above, there is no infirmity in the
judgment and order passed by the Courts below. Hence, the
.
present petition cannot be allowed.
32. This is not the first instance when the petitioner has
approached the Courts by filing these kinds of petitions.
of
Therefore, it is necessary to take effective steps to prevent the
petitioner from wasting the precious time of the Courts; hence,
rt
the present petition is dismissed with the cost of ₹10,000/-, which
shall be deposited in the Chief Justice Disaster Relief Fund within a
period of four weeks, failing which steps will be taken to recover it
as per the law.
33. The present petition stands disposed of in the
aforesaid terms, so also the pending applications, if any.
(Rakesh Kainthla)
Judge
28th July, 2026
(Nikita)
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