Ashish Sharma vs State Of H.P. And Ors

Rakesh Kainthla, J

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 punishable under Sections 192, 197, 199, 200, 205, 406, 420, 120B, 468 to 471 etc. of Indian Penal Code (IPC) was dismissed

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.

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.

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 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 a idavit submitted by the respondent no. 4 was not false but c ntained 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 revisi n was dismissed.

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 the order. Therefore, it was prayed that the orders passed by learned Courts below be set aside.

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 o Section 195 of Cr.P.C.), he submitted that the said provision does not apply to the present case.

Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State, supported the orders passed by t e learned Courts below.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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 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 C de, a person — accused/complainant — cann t be allowed to take recourse to the revision o the High Court under Section 397(1) or inhe ent 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 m tu power under Section 401 and continuous supervis ry 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 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.

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 igh 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 disp sal f the cases, but in Section 482, it is provided hat nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inhe ent powers of the High Court. On a harmonio s const uction of the said two provisions on this behalf, it was held that though the High Court has no p wer f revision in an interlocutory order, still the inherent p wer 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 under Section 397 or inherent power under Section 482 of the Code.

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 f a truck from attachment, obviously on the filing of an interlocutory application. It was contended hat here was a prohibition on the revision by ope ation 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 operati n f 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, 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 igh 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 allegati ns 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 J dge operated as a bar to entertain the application nder Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage f justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate.

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.

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 or 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 ju isdiction 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.”

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 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.”

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 Sec ion 482 of the Criminal Procedure Code has to be exe cised sparingly and such power shall not be tilised as a substitute for second revision. Ordinarily, when a revision has been barred under Secti n 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 riminal 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.”

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: -

“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 C urt from entertaining an application under Sec ion 482 thereof does not, therefore, commend i self to us.

On the fact al 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 declarati n under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same.

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.

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 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 ma er 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 f justice or the mandatory provisions of law were n t 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.”

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).

It was specifically asserted by the petitioner/complainant that a false affidavit was filed before the Human Rights Commission. Section 13 (5) of the rotection 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 pr ceeding within the meaning of sections 193 and 228, and f r 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.”

Chapter XXVI of the Code of Criminal Procedure deals with the ffences 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 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 complaint made in writing of that Court.

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.

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 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. pr hibits taking cognisance of any offence in the foll wing words:

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 Co rt 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 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 subordina e 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 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.

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 C urt may authorise, was necessary. A complaint c uld 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 espect of the offence committed during pendency of the Court proceedings, it is necessary that either the C rt 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, 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)

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 jurisdicti n under Section 175 (3) of BNSS.

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 ingredients to constitute the alleged offence are borne out on plain reading of the complaint.

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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 ab ut the necessity of police investigation for digging ut evidence, neither in possession of the complainant nor can be procured without the assis ance of the police. It is, thus, not necessary that in eve y 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 Secti n 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.

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 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.”

The offences punishable under Sections 199, 200, and 205 of the IPC are described as n n-cognisable in the First Schedule of the CrPC, and he Magistrate could not have ordered the registration of the FIR when the application disclosed non-c gnisable 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 punis able under Section 500 of IPC (which is a non-co nisable 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.”

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 IPC. It was held that the offences were non-cognisable and no FIR could have been registered. It was observed:

Undisputedly, all the offences alleged against the petitioner are non-cognizable offences.

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 discl ses a c gnizable offence. When the allegation made in he complaint does not disclose a cognizable offence, he Magistrate/court has no jurisdiction to o der a police investigation under sub-section (3) of Section 156CrPC.

In the present case, the learned Special Judge, with ut 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.

Therefore, no direction could have been issued to register the FIR in the present case.

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 (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 resp ndent was sent up for trial for the offences under Sec ions 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:

No Co rt 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 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.”

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 n t accepted, and it was held that it is not permissible for he 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 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 f r which such a complaint to the Court is necessary, are c mmitted, it is not possible to split up and hold he prosecution of the accused for the offences not men ioned in Section 195 of the Code of Criminal Procedu e should be upheld.

[13] In the present case as well the offences under Secti ns 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.”

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.

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:

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:-

"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 o ficers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification f r impleading them as parties in the special leave petition and describing them as contesting espondents. We do not approve of the course adopted by the petitioner, which would ca se nnecessary disturbance to the functions of the j dicial officers concerned. They cannot be in any way equated to the officials of the G vernment. 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."

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 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 ught to be devoted, which sadly was not done."

Same view was aken 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.

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.

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.