The Orissa High Court dismissed an appeal filed by a woman seeking initiation of criminal proceedings against her husband in a case of a matrimonial dispute and held that Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) does not mandate a preliminary enquiry. However, the Court may hold such 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).

The Criminal Appeal before the High court was filed under section 341 of the Code of Criminal Procedure which has been repealed w.e.f. July 1, 2024. The High Court considered the same to be a petition U/S. 379 of the BNSS. The appellant, however, in essence, challenged the impugned order of the Family Court refusing to entertain the petition of the appellant essentially U/S. 379 of the BNSS.

The Single Bench of Justice G. Satapathy said, “…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. 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.”

Advocate B. Pujari represented the Appellant.

Arguments

It was the case of the Appellant that the respondent-husband deliberately and maliciously made false statements and suppressed facts in his disclosure affidavits filed before the trial Court and in such disclosure affidavit, the respondent made a claim as if he is the only son of his father but he has a brother who is working in a reputed company and earning Rs.3 lakhs per month.

It was the wife’s case that the respondent-husband also lied by stating that his father has left practice and depends on him for his maintenance. It was also submitted that the father of the respondent has landed properties and the trial Court ignoring aforesaid facts erroneously dismissed the application of the appellant to proceed against the respondent in terms of Sec. 340 of the CrPC.

Reasoning

On a perusal of the provisions of law and the averments taken by the appellant in her petition for initiation of a proceeding against the respondent U/S 379 of BNSS, the Bench did not find any cogent material to proceed against the opposite party in terms of Sec. 379 of BNSS.

Noting that in his petition for initiation of proceeding against the respondent U/S 379 of BNSS, the appellant raised some disputed questions which needed to be adjudicated in the trial, the Bench said, “…but the provision U/S. 379 of BNSS makes it abundantly clear that the Court in which such an application has been filed to take action against a person has been conferred with discretion to proceed against such person, but the Court is not bound to proceed in the matter on the complaint of a private person and the learned trial Court in the impugned order has rightly held that the petition for initiation of criminal proceedings being without authentic particular deserves no positive consideration.”

Referring to the judgments of the Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah (2005) and State of Punjab Vs. Jasbir Singh (2022), the Bench held that Section 379 of BNSS does not mandate a preliminary enquiry and such a course may not be required to be adopted in every cases.

The Bench did feel such expediency in the matter because the dispute between the parties related to a matrimonial discord in which there was allegation and counter allegation. The petition stated to be filed under section 340 of CrPC by the appellant-petitioner did not persuade the Court to pass a direction to conduct a preliminary enquiry or institute a complaint against the respondent.

In view of such factual and legal aspects, the Bench dismissed the Appeal.

Cause Title: A v. B (Neutral Citation: CRLA NO.1257 of 2024)

Appearance:

Appellant: Advocate B. Pujari

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Orissa High CourtJustice G. Satapathy

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.