S. 379 BNSS | Court Not Bound To Hold Preliminary Inquiry Before Making Or Refusing To Make Complaint: Orissa High Court

The Orissa High Court has held that it is not mandatory on the part of Court to hold a preliminary inquiry as provided under Section 379 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) into commission of offences referred to in Section 215, BNSS in order to make or reject to make complaint.

While clarifying the procedural provision, the Single Bench of Justice Gourishankar Satapathy observed –

“…it appears that Sec. 379 of BNSS does not mandate a preliminary enquiry, so also such a course may not be required to be adopted in every cases. However, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offence referred to in Sec. 215(1)(b) of the BNSS.”

Case Background

The appellant-wife alleged that the respondent-husband deliberately and maliciously made false statement and suppressed facts in his disclosure affidavit filed before the Family Court in a proceeding under Section 125, CrPC. Pertinently, filing of affidavit disclosing assets is mandatory as per the judgment of the Supreme Court in Rajnesh v. Neha (2020), reiterated by the top Court in Aditi v. Jitesh Sharma (2023) and by the Orissa High Court recently in Nabaghana Sahoo v. Smruti Prava Sahoo & Anr. (2025)

She alleged that the respondent filed affidavit stating himself to be the only son of his father, while it is a fact that he has a brother. She further averred that the statement of the respondent as to dependence of his father on him for maintenance is also false since his father is a reputed practising lawyer having stable income and landed properties.

Therefore, she claimed that the respondent intentionally withheld such facts in the disclosure affidavits as well as in evidence and thereby, he is liable to be prosecuted for perjury as per Section 340 of the CrPC. But the trial Court dismissed her application for which she came before the High Court in this criminal appeal.

Court's Observations

At the outset, the Court underlined that the appellant has filed this criminal appeal by resorting to Section 341 of the CrPC. However, since the CrPC is replaced by the BNSS w.e.f. 01.07.2024, the Court decided to treat the petition to have been filed under Section 379, BNSS instead of Section 341, CrPC.

In order to decide maintainability of the petition, the Court referred to Section 379 of BNSS which deals with “procedure in cases mentioned in Section 215, BNSS”. Section 215, BNSS says about prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

Section 379(1) says that when an application is made under this provision, if 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 of Section 215(1)(b), such Court may, after such preliminary inquiry take certain steps prescribed under Section 379, inter alia, making a complaint thereof in writing.

Basing upon the aforesaid provision, the counsel for the appellant argued that if there is an application for initiation of a criminal proceeding in the nature of Section 379 of BNSS, the Court has to hold a preliminary enquiry. To substantiate his stand, he relied upon the judgment of the Supreme Court in State of Punjab v. Jasbir Singh, 2022 LiveLaw (SC) 776.

However, Justice Satapathy highlighted the question framed in the aforesaid case, i.e. whether Section 340 of the CrPC mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court.

While answering the above question, the Apex Court had referred to the decision of a Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah (2005), which held as follows –

“In view of the language used in make Section 340 Cr.P.C. the Court is not bound to a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words “Court is of opinion that it is expedient in the interest of justice.” This shows that such a course will 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.”

Having regard to the principles laid down in Jasbir Singh (supra) and Iqbal Marwah (supra), the Court held that it is not mandatory under Section 379, BNSS to hold a preliminary inquiry in every case.

“However, it is not in all and every case, the Court has to exercise the jurisdiction of Sec.379 of BNSS, unless there is an expediency in the interest of justice in the opinion of the Court,” it said.

Against the backdrop of the said legal position, the Court held that in the instant case, the appellant has raised certain disputed questions of fact which can only be ascertained during the trial and therefore, the trial Court has rightly held that the petition for initiation of criminal proceedings being without authentic particular deserves no positive consideration.

“In this case, this Court does not feel such expediency in the matter because the dispute between the parties is relating to a matrimonial discord in which there is allegation and counter allegation, but the petition stated to be filed U/S.340 of CrPC by the appellant-petitioner does not persuade this Court to direct to conduct an preliminary enquiry or to direct for institution of complaint against the respondent in this case,” it added.

Accordingly, the prayer made by the appellant-wife to initiate criminal proceeding against her respondent-husband was rejected and resultantly, the criminal appeal was dismissed.

Case Title: Priyadarshini Amrita Panda v. Biswajit Pati

Case No: CRLA No. 1257 of 2024

Date of Judgment: February 25, 2025

Counsel for the Appellant: Mr. Basudev Pujari

Counsel for the Respondent: None

Citation: 2025 LiveLaw (Ori) 35

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