‘Cognizance Taken Mechanically, Ignoring Jurisdiction’—Calcutta High Court Sets Aside Magistrate’s Order Under Section 340 CrPC
Safiya Malik
The Calcutta High Court has set aside an order by the Additional Chief Metropolitan Magistrate – II, Calcutta, which had taken cognizance of alleged false statements made in an affidavit of assets and liabilities in a domestic violence case. The matter was heard and decided by Justice Ajay Kumar Gupta, who observed that the Magistrate lacked jurisdiction to take cognizance of offences punishable under Sections 193, 199, and 209 of the Indian Penal Code without a complaint from the concerned court as required under Section 195(1)(b)(i) of the Code of Criminal Procedure. The High Court found that the Magistrate had mechanically taken cognizance in a matter where such action was barred by law.
The case stemmed from a domestic dispute between the petitioner and her husband. The petitioner had filed an application under Section 12 read with Section 23 of the Protection of Women from Domestic Violence Act, 2005, seeking reliefs including maintenance and residential rights. The Magistrate, by an order dated March 23, 2021, directed the husband to pay an interim maintenance of ₹39,000 per month. The husband challenged this order before the Chief Judge, City Sessions Court, Calcutta, which set aside the grant of interim maintenance on December 7, 2021. Aggrieved by this, the petitioner moved the High Court in revision, where the interim order was stayed.
During the pendency of the revision petition, the husband filed an application under Section 340 of the Code of Criminal Procedure, alleging that the petitioner had made false statements in her affidavit of assets and liabilities to obtain interim relief. This application was originally filed before the Metropolitan Magistrate, Calcutta, but was later treated as a complaint before the Additional Chief Metropolitan Magistrate – II, Calcutta, who took cognizance on November 3, 2021, and transferred the case back to the 6th Metropolitan Magistrate for disposal. The petitioner challenged this order in the High Court.
The petitioner’s counsel contended that under Section 195 of the Code of Criminal Procedure, no court could take cognizance of offences under Sections 193, 199, and 209 of the Indian Penal Code except on a complaint by the court where the alleged false statements were made. It was argued that the Additional Chief Metropolitan Magistrate – II, Calcutta, had no jurisdiction to take cognizance, as the complaint should have been filed before the court where the original case was pending. The petitioner submitted that the cognizance order was illegal and should be set aside.
The respondent’s counsel submitted that the application was originally filed before the 6th Metropolitan Magistrate, Calcutta, but was placed before the Additional Chief Metropolitan Magistrate – II, Calcutta, due to an administrative error. The counsel argued that the order of cognizance did not prejudice the petitioner, as the case had been transferred back to the correct court. The respondent relied on Supreme Court judgments, including Pritish vs. State of Maharashtra and Pradeep S. Wodeyar vs. State of Karnataka, to support the contention that a preliminary inquiry was not mandatory under Section 340 of the Code of Criminal Procedure.
The High Court examined the legal provisions governing false evidence and perjury. Section 195(1)(b)(i) of the Code of Criminal Procedure bars courts from taking cognizance of offences under Sections 193, 199, and 209 of the Indian Penal Code except on a complaint in writing from the court where the alleged false statement was made. The court observed: "The cognizance under Sections 193/199/209 of IPC is barred by Section 195(1)(b)(i) of Cr.P.C. as no written complaint was lodged by the Learned Magistrate against the Petitioner and until and unless the Court trying the proceeding filed under Section 12 read with Section 23 of PWDV Act gave a finding that the documents or affidavit of assets and liabilities submitted in that Court were false and fabricated and directed for lodging of complaint against the Petitioner/wife, the learned Court could not have taken cognizance against the Petitioner/wife, therefore, cognizance taken by the Learned Additional Chief Metropolitan Magistrate – II, Calcutta is not permissible as such, the same is bad in law."
The court examined precedents on the scope of Section 340 of the Code of Criminal Procedure. In Iqbal Singh Marwah vs. Meenakshi Marwah, the Supreme Court held that the power to initiate proceedings for perjury should be exercised only when it is expedient in the interests of justice. The High Court also referred to Chajoo Ram vs. Radhey Shyam, where the Supreme Court cautioned against initiating perjury proceedings without due consideration, stating: "There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge."
The High Court noted that the Additional Chief Metropolitan Magistrate – II, Calcutta, had taken cognizance without a complaint from the concerned court, in violation of Section 195(1)(b)(i) of the Code of Criminal Procedure. The court held: "Accordingly, CRR 664 of 2022 is allowed. Consequently, connected applications, if any, are also disposed of."
The court further ordered: "Impugned Order dated 03.11.2021 passed by the Learned Additional Chief Metropolitan Magistrate – II, Calcutta in the Complaint Case No. CNS No. 1058 of 2021 is hereby set aside."
The court directed that all parties act based on the server copy of the judgment and granted liberty to obtain a certified copy of the order.
Advocates Representing the Parties
For the Petitioner: Mr. Dinabandhu Chowdhury, Advocate; Mr. Iresh Paul, Advocate.
For the Opposite Party No. 1: Mr. Debajyoti Deb, Advocate; Mr. Shyamal Mondal, Advocate; Ms. Somdyuti Parekh, Advocate.
Case Title: Garima Shaw @ Guddi Shaw vs. Umesh Kumar Shaw & Another
Case Number: C.R.R. 664 of 2022
Bench: Justice Ajay Kumar Gupta
[Read/Download order]
