IMPORTANT POINT
Preliminary enquiry – Section 379 of BNSS does not mandate a preliminary enquiry, so also such a course may not be required to be adopted in every cases.

JUDGMENT (ORAL)

G. Satapathy, J.—This criminal appeal has been stated to be filed U/S. 341 of the Code of Criminal Procedure which has already been repealed w.e.f. 1st July, 2024, but this Court, however, considers it to be a petition U/S. 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, “BNSS”). The appellant, however, in essence challenges the impugned order dated 06.11.2024 passed by the learned Judge Family Court, Cuttack in Civil Proceeding No. 488 of 2018 refusing to entertain the petition of the appellant essentially U/S. 379 of the BNSS.

2. In the course of hearing, Mr.Basudev Pujari, learned counsel for the appellant by taking this Court through the impugned order submits that although the application of the appellant discloses some materials to take action against the respondent in terms of provision of Sec. 379 of BNSS, but fact remains that the learned trial Court by the impugned order has in fact not heard the appellant on the point and rather he has passed an order by observing inter alia that “the petition for initiation of criminal proceeding without authentic particular deserves no positive consideration, as such the same stands rejected”. It is further submitted that the respondent-husband has deliberately and maliciously made false statement and suppressed facts in his disclosure affidavits filed before the learned trial Court and in such disclosure affidavit, the respondent has made a claim as if he is the only son of his father Nrushinga Charan Pati, but he has got a brother namely, Biswanath Pati who is working in a reputed company and earning Rs.3 lakhs per month and respondent-husband has also lied by stating that his father has left practice and depends on him for his maintenance, but his father N.C.Pati being an reputed Advocate has never left practice. It is also submitted by Mr.B.Pujari that the father of the respondent has landed properties and a two storeyed building in his native place and another two storeyed building in CDA, Cuttack, besides some landed properties in his name, but the respondent has intentionally withheld such facts in the disclosure affidavits as well as in evidence and thereby liable to be prosecuted for perjury in an action U/S. 340 of the CrPC, but the learned trial Court ignoring aforesaid facts has erroneously dismissed the application of the appellant to proceed against the respondent in terms of Sec. 340 of the CrPC.

3. In view of the aforesaid challenge by the appellant, this Court right now embark upon the petition filed by the appellant to see as to whether any action is required U/S. 379 of BNSS, but before doing that this Court considers it proper to refer to the provisions of Sec. 379 of BNSS which reads as under:

“379. Procedure in cases mentioned in Section 215.—(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 215, 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