[Cites 12, Cited by 0]
Madhya Pradesh High Court
Shailendra Sharma vs M/S Indus Residency Pvt. Ltd on 7 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:1337
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 7 th OF JANUARY, 2026
MISC. PETITION No. 7257 of 2025
SHAILENDRA SHARMA AND OTHERS
Versus
M/S INDUS RESIDENCY PVT. LTD AND OTHERS
Appearance:
Shri Devashish Sakalkar - Advocate with Shri Saket Agrawal -
Advocate for the petitioners.
Shri Sanjay Agrawal - Senior Advocate with Shri Siddharth Kumar
Sharma,- Advocate for the respondents.
ORDER
The present petition has been filed challenging the order dated
18.11.2025 passed by the Executing Court, the instance of the decree
holders. By the aforesaid order, the Executing Court has directed the matter
of impersonation of surety to be enquired into police authorities and if the
police authorities find the surety bond to have been fraudulently furnished
before the Court, then to register an office and proceed further in the matter.
2. The undisputed facts of the case are that there is a decree of
recovery of money against the respondents-judgement debtors in an suit filed
by the petitioner. Against the judgement and decree passed by the trial Court,
FA No.442/2022 is pending before this Court and in terms of the interim
order passed in the said first appeal, part of decretal amount was deposited
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by the respondents/judgement debtors before the Executing Court amounting
to Rs.35.25 lakhs. The Executing Court ordered the amount to be disbursed
to the decree holders/petitioners upon furnishing of solvent surety by one
Jugal Kishore. Later on, it was revealed before the Executing Court that the
surety was of some agricultural land on which there were as many as 9
sureties given by the same person and later on, Jugal Kishore himself
appeared before the Executing Court and stated that he never furnished any
such surety before the Court and that he has been impersonated in furnishing
the surety for the amount of Rs.35.25 lakhs before it being disbursed to the
decree holders.
3. Thereafter, the judgment debtors filed an application under Section
379 BNSS (corresponding to Section 340 Cr.P.C.) seeking prosecution of
decree holders and the impersonating surety under various sections of I.P.C.
4. It is contended by counsel for the decree holders/petitioners that
without passing any order on the said application, the Executing Court has
directed that the police should investigate the matter and in case any criminal
offence is found to be established, then police should register FIR. It is
contended that the Executing Court should not have left it to be discretion of
the police authorities whether to register criminal case or not and the
procedure as per Sections 215 and 379 of B.N.S.S. was to be followed and
the Executing Court was required to apply its own mind that whether any
offence is made out, by following the procedure under Section 379 B.N.S.S.
Counsel for the petitioners has also relied on the judgments of the Hon'ble
Supreme Couse in the cases of Iqbal Singh Marwah and another vs.
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Meenakshi Marwah and another (2005) 4 SCC 370, Sachida Nand Singh and
another vs. State of Bihar and another (1998) 2 SCC 493 and in the case of
Saifdeen Y. and another vs. State of Kerala and another passed in CRL.MC
No.7011 of 2024 on 22.01.2025 by the High Court of Kerala at Ernakulam.
5 . Per contra, counsel for the judgement debtor/respondent has
vehemently supported the impugned order passed by the Executing Court.
6. After hearing the counsel for the rival parties and on perusal of the
record, the relevant provisions of B.N.S.S., i.e. Sections 215 and 379 are as
under:-
"215. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence.--(1) No Court shall take
cognizance--
(a) (i) of any offence punishable under sections 206 to 223
(both inclusive but excluding section 209) of the Bharatiya
Nyaya Sanhita, 2023; or
(ii) of any abetment of, or attempt to commit, such offence;
or
(iii) of any criminal conspiracy to commit such offence,
except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate or of some other public servant who is authorised by
the concerned public servant so to do;
(b) (i) of any offence punishable under any of the following
sections of the Bharatiya Nyaya Sanhita, 2023, namely,
sections 229 to 233 (both inclusive), 236, 237, 242 to 248
(both inclusive) and 267, 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 sub-section (1) of section
336, or punishable under sub-section (2) of section 340 or
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section 342 of the said Sanhita, 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.
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 interests 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 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 215.
(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 or
by such officer of the Court as the Court may authorise in
writing in this behalf.
(4) In this section, "Court" has the same meaning as in section
215."
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7. The offence is alleged to have been caused in producing an
impersonating surety before the Executing Court for getting disbursed the
part decretal amount of Rs.35.25 lakhs from the Executing Court. Later on,
the said surety appeared before the Executing Court and stated that some
impersonator appeared while furnishing surety and he has never furnished
any surety before the Executing Court.
8. A police officer cannot directly register a crime for offence under
Section 215 B.N.S.S. once the offence is committed in or in relation to a
proceeding in the Court. As per Section 379 B.N.S.S., the Court has to cause
preliminary enquiry and then can make a complaint in writing. However, in
the present case, the Court has not made any enquiry, nor recorded any
prima-facie satisfaction and has simply directed the police authorities to
carry out an investigation and submit a report before the Court. Though the
Court in its discretion could have directed the police authorities to
investigate the matter and to furnish report before the Court, but the
discretion to register FIR should not have been left at the discretion of the
police authorities. It was for the Court to have applied its mind after
receiving the preliminary enquiry report of the police authorities.
9. Therefore, the impugned order dated 18.11.2025 is modified to the
extent that the concerned police authority of Police Station, M.P. Nagar,
Bhopal may investigate the matter, but before registering any FIR, the
investigation report shall be furnished before the Executing Court and FIR
shall be registered only under orders of the Executing Court, and not suo-
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motu by the Police authorities.
10. With the aforesaid modification in the impugned order, the petition
is disposed of.
(VIVEK JAIN)
JUDGE
rj
