MOHAMMAD RASHEEDversusSTATE OF U.P. AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL APPEAL No. - 2857 of 2026

Mohammad Rasheed
                                                               .....Appellant(s)
                                    Versus
State Of U.P. And 3 Others
                                                             .....Respondent(s)

Counsel for Appellant(s)         : Ravi Prakash Tripathi, Santosh Kumar
                                   Upadhyay
Counsel for Respondent(s)        : G.A.

Court No. - 90
                      HON'BLE RAJ BEER SINGH, J.

1. This criminal appeal has been preferred under Section - 380 Bharatiya
Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') against
judgment and order dated 28.01.2026, passed by learned Additional
Principal Judge, Family Court No.4, Prayagraj in Criminal Misc. Case No.
09 of 2025 (Mohammad Rasheed Vs. Smt. Rabiya Begam), whereby the
application filed by appellant under Section - 379 BNSS / 340 Cr.P.C., has
been rejected.

2. The appeal is being decided finally at the stage of admission itself.

3. Heard learned counsel for the appellant, learned A.G.A. for the State and
perused the record.

4. Learned counsel for the appellant submitted that the impugned order dated
28.01.2026 is against facts and law and thus, liable to be set aside. Appellant
is husband of respondent No.2, who has filed a case under Section - 125
Cr.P.C.. In proceedings of that case, the respondent No.2 has submitted an
affidavit, wherein she has alleged that appellant was working as Helper II in
Northern Central Railway, Electric T.R.D. Department, Kanpur Nagar and
he is getting salary of Rs. 40,000/- per month, whereas in his affidavit dated
03.01.2018 the appellant has clearly stated that he was expelled from the
Railway Department and thus, the respondent No.2 has made a false
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averment in the affidavit. It was submitted that a prima facie case for taking
an action under Section - 379 BNSS was made out but the application of
appellant has been rejected by the learned Family Court in an arbitrary
manner and maintenance was awarded to the respondent No.2 on the basis of
false evidence submitted by the respondent No.2. Referring to facts of the
matter, it was submitted that impugned order is liable to be set aside.

5. Learned A.G.A. has opposed the appeal and submitted that there is no
illegality or perversity in the impugned order.

6. I have considered rival submissions and perused the record.

7. Before proceeding further, it would be apt to refer the provisions of the
section - 340 Cr.P.C., which reads reads as under :-

     "340. (1) When, upon an application made to it in this behalf or otherwise any
     Court is of opinion that it is expedient in the interest of justice that an
     inquiry should be made into any offence referred to in clause (b) of sub-
     section (1) of section 195, which appears to have been committed in or in
     relation to a proceeding in that Court or, as the case may be, in respect of a
     document produced or given in evidence in a proceeding in that Court, such
     Court may, after such preliminary inquiry, if any, as it thinks necessary,-


     (a) record a finding to that effect;


     (b) make a complaint thereof in writing;


     (c) send it to a Magistrate of the first class having jurisdiction;


     (d) take sufficient security for the appearance of the accused before such
     Magistrate, or if the alleged offence is non- bailable and the Court thinks it
     necessary so to do, send the accused in custody to such Magistrate; and


     (e) bind over any person to appear and give evidence before such Magistrate.


     (2) The power conferred on a Court by sub-section (1) in respect of an offence
     may, in any case where that Court has neither made a complaint under sub-
     section (1) in respect of that offence nor rejected an application for the
     making of such complaint, be exercised by the Court to which such former Court
     is subordinate within the meaning of sub-section (4) of section 195.


     (3) A complaint made under this section shall be signed,-(a) where the Court
     making the complaint is a High Court, by such officer of the Court as the Court
     may appoint;(b) in any other case, by the presiding officer of the Court.


     (4) In this section," Court" has the same meaning as in section 195."



8. A perusal of section 340 Cr.P.C. shows that these provisions are
applicable in respect of such cases which are covered by section 195(1)(b)
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Cr.P.C.. Section 195(1)(b) reads as under :-

     "195(1) No Court shall take cognizance -


     (b)(i) of any offence punishable under any of the following sections of the
     Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive),
     199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to
     have been committed in, or in relation to, any proceeding in any Court, or


     (ii) of any offence described in Section 463, or punishable under Section 471,
     Section 475 or Section 476, of the said Code, when such offence is alleged to
     have been committed in respect of a document produced or given in evidence in a
     proceeding in any Court, or


     (iii) of any criminal conspiracy to commit, or attempt to commit, or the
     abetment of, any offence specified in sub- clause (i) or sub- clause (ii),
     except on the complaint in writing of that Court, or by such officer of the
     Court as that Court may authorise in writing in this behalf, or of some other
     Court to which that Court is subordinate."



9. The object of Section - 340 Cr.P.C. / 379 BNSS is to provide a safeguard
against frivolous and vexatious prosecution. For taking action under section
340 Cr.P.C. / 379 BNSS, the Court has to form an opinion that it is
expedient in the interest of justice that an inquiry should be made for an
offence referred to in section 195(1)(b) Cr.P.C., which appears to have been
committed or in relation to a proceeding in that Court. In case of Dr S. P.
Kohli V The High Court Punjab and Haryana, reported in AIR 1978 SC
1753, the Hon'ble Apex Court held that prosecution for perjury should be
sanctioned by Courts only in those cases where it appears to be deliberate
and conscious and the conviction is reasonably probable or likely. It is also
well recognized that there must be a prima facie of deliberate falsehood on a
matter of substance and the Court should be satisfied that there is reasonable
foundation for the charge.

10. In Chajoo Ram v. Radhey Shyam and another AIR 1971 SC 1367, the
court held:

     "7. The prosecution for perjury should be sanctioned by courts only in those
     cases    where   the   perjury   appears   to   be   deliberate   and   conscious   and   the
     conviction is reasonably probable or likely. No doubt giving of false evidence
     and filing false affidavits is an evil which must be effectively curbed with a
     strong hand but to start prosecution for perjury too readily and too frequently
     without due care and caution and on inconclusive and doubtful material defeats
     its very purpose. Prosecution should be ordered when it is considered expedient
     in the interests of justice to punish the delinquent and not merely because
     there is some inaccuracy in the statement which may be innocent or immaterial.
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     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."



11. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur],
the Court held:

     "4. As is plain from the aforesaid stances adopted by the parties, they are out
     for personal vendetta. It is a settled principle of law that courts never
     become tools at the hands of the parties to satisfy private vendetta or to take
     up cudgels on behalf of one party and punish the other. The primary object to
     take   proceedings   under   Section   340   of   the   Code   of   Criminal   Procedure,   in
     instituting a complaint for giving false evidence, is to curb the evil of
     perjury and to keep the flow of proceedings in courts unsullied and pure. It is
     only in a rare case, when the Court comes to the conclusion that if the
     complaint is filed conviction is more or less a certainty, that it chooses to
     become a complainant. In such like contentious issues, when the wife can again
     indulge in proving that the husband was wrong and she was right, it is not
     expedient for this Court to enter into the fact and become a complainant at the
     behest of the husband-petitioner. Thus, I am of the considered view that it is
     not expedient to pursue the matter any further at the instance of the parties."



12. It is thus clear that in every inquiry under Section - 340 Cr.P.C. / 379
BNSS the court is not bound to make a complaint regarding commission of
an offence referred to in Section 195(1)(b) Cr.P.C., as the section 340 CrPC
is conditioned by the words "court is of opinion that it is expedient in the
interests of justice". In fact such a course has to be adopted only if the
interest of justice requires and not in every case. This expediency will
normally be judged by the court by weighing not the magnitude of injury
suffered by the person affected by such forgery or forged document, but
having regard to the effect or impact, such commission of offence has upon
administration of justice. It would be pertinent to mention that the Courts
never become tools at the hands of the parties to satisfy private vendetta to
take up cudgels on behalf of one party and punish the other.

13. In the instant matter, perusal of record shows that appellant is husband of
the respondent No.2. The respondent No.2 has filed a case under Section -
125 Cr.P.C.. In proceedings of that case, the appellant has filed an
application under Section - 340 Cr.P.C. / 379 BNSS, alleging that the
respondent No.2 has submitted an affidavit, wherein she has alleged that
appellant was working as Helper II in Northern Central Railway, Electric
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                                    T.R.D. Department, Kanpur Nagar and getting salary of Rs. 40,000/- per
                                    month, whereas in his affidavit dated 03.01.2018 the appellant has clearly
                                    stated that he was expelled from the Railway Department and thus, the
                                    respondent No.2 has made a false averment in the affidavit. It appears that
                                    the Family Court has considered entire facts and the application of appellant
                                    under Section - 340 Cr.P.C. was rejected by the Family Court by a reasoned
                                    order. The contention that the Family Court has awarded the maintenance by
                                    relying upon false evidence, can not be examined in this appeal. No case as
                                    mentioned in Section - 195(1)(b) Cr.P.C. is made out. As stated above, for
                                    action under Section - 340 Cr.P.C. / 379 BNSS, there must be some
                                    expediency in the interest of justice. In the instant matter, this Court does not
                                    find any such expediency in the interest of justice so as to take action under
                                    Section - 340 Cr.P.C. / 379 BNSS. There is no material illegality or
                                    perversity in the impugned order. The appeal lacks merit and thus, liable to
                                    be dismissed.

                                    14. The appeal is hereby dismissed.

                                    April 1, 2026
                                    S Rawat

                                                                                               (Raj Beer Singh,J.)




Digitally signed by :-
SHOBHIT RAWAT
High Court of Judicature at Allahabad