Impersonation of Surety in Court Proceedings

Source: Madhya Pradesh High Court 

Why in News? 

The bench of Justice Vivek Jain in the case of Shailendra Sharma and Others v. M/s Indus Residency Pvt. Ltd and Others (2026) modified the order of the Executing Court regarding the procedure to be followed when alleged impersonation of surety occurs in court proceedings, emphasizing the importance of judicial oversight in such matters. 

What was the Background of Shailendra Sharma and Others v. M/s Indus Residency Pvt. Ltd and Others (2026) Case? 

• The petitioners (decree holders) had obtained a decree of recovery of money against the respondents (judgment debtors) in a suit. 
• Against the judgment and decree passed by the trial Court, First Appeal No. 442/2022 was filed and was pending before the Madhya Pradesh High Court. 
• In terms of an interim order passed in the first appeal, the judgment debtors deposited part of the decretal amount of Rs. 35.25 lakhs before the Executing Court. 
• The Executing Court ordered that the amount be disbursed to the decree holders upon furnishing of solvent surety by one Jugal Kishore. 
• Later, it was revealed that the surety was of agricultural land on which there were as many as 9 sureties given by the same person. 
• Subsequently, Jugal Kishore himself appeared before the Executing Court and stated that he never furnished any such surety and that someone had impersonated him while furnishing the surety for Rs. 35.25 lakhs. 
• The judgment debtors then filed an application under Section 379 BNSS (corresponding to Section 340 CrPC) seeking prosecution of the decree holders and the impersonating surety under various sections of the Indian Penal Code. 
• On 18.11.2025, the Executing Court passed an order directing that the matter of impersonation be enquired into by police authorities, and if the police found the surety bond to have been fraudulently furnished, they should register an FIR and proceed further. 
• The decree holders challenged this order through the present petition, arguing that the Executing Court should not have left the discretion to register FIR to the police authorities. 

What were the Court's Observations? 

• The Court noted that the alleged offence was committed by producing an impersonating surety before the Executing Court for getting disbursed the part decretal amount of Rs. 35.25 lakhs. 
• The Court observed that a police officer cannot directly register a crime for offences under Section 215 BNSS once the offence is committed in or in relation to a proceeding in the Court. 
• As per Section 379 BNSS, the Court has to cause preliminary enquiry and then can make a complaint in writing. 
• The Court found that in the present case, the Executing Court had not made any enquiry, nor recorded any prima-facie satisfaction, and had simply directed the police authorities to carry out an investigation and submit a report. 
• While acknowledging that the Court in its discretion could direct police authorities to investigate the matter and furnish a report, the Court held that the discretion to register FIR should not have been left at the discretion of the police authorities. 
• The Court emphasized that it was for the Court to apply its mind after receiving the preliminary enquiry report from the police authorities. 
• The Court modified the impugned order dated 18.11.2025 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. 
• The Court directed that FIR shall be registered only under orders of the Executing Court, and not suo-motu by the police authorities. 

What are Sections 215 and 379 of BNSS? 

About Section 215 BNSS (Formerly Section 195 of CrPC): 

• Section 215 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with "Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence." 

Key provisions: 

No Court shall take cognizance without proper complaint for: 

• Offences punishable under BNS Sections 206 to 223 (excluding Section 209) - these relate to contempt of lawful authority of public servants. 
• Abetment, attempt, or criminal conspiracy to commit such offences. 
• Such cognizance requires complaint in writing from the concerned public servant or their administrative superior or authorized public servant. 

For offences committed in or relating to court proceedings: 

• Offences under BNS Sections 229 to 233, 236, 237, 242 to 248, and 267 when committed in or in relation to any court proceeding. 
• Offences under BNS Section 336(1), Section 340(2), or Section 342 when committed in respect of documents produced or given in evidence in court 
• Criminal conspiracy, attempt, or abetment of such offences. 
• Cognizance requires complaint in writing from that Court, or an officer authorized by that Court, or a superior Court. 

Withdrawal of complaint: 

• Where complaint is made by a public servant under clause (a), any superior authority may order withdrawal. 
• Copy of withdrawal order must be sent to the Court. 
• No further proceedings shall be taken after receipt of withdrawal order. 
• Withdrawal cannot be ordered if trial in first instance has concluded 

Definition of "Court": 

• Includes Civil, Revenue, or Criminal Courts 
• Includes tribunals constituted under Central or State Acts if declared to be a Court for this section's purposes 

Subordination of Courts: 

• A Court is deemed subordinate to the Court where appeals ordinarily lie from its decrees or sentences 
• For Civil Courts with no appeal, subordinate to Principal Court having original civil jurisdiction in that area 
• Where multiple appeal courts exist, the Appellate Court of inferior jurisdiction is the superior 
• Where appeals lie to both Civil and Revenue Courts, subordination depends on nature of case 

About Section 379 BNSS (formerly Section 340 of CrPC): 

• Section 379 of BNSS outlines the "Procedure in cases mentioned in section 215." 

Key provisions: 

When Court may initiate inquiry: 

• Court may act upon an application made to it or on its own motion (otherwise). 
• Court must form opinion that inquiry is expedient in the interests of justice. 
• Applies to offences under Section 215(1)(b) - offences committed in or relating to court proceedings. 
• Offence must appear to have been committed in or in relation to a proceeding in that Court, or in respect of a document produced or given in evidence in that Court. 

Procedure after preliminary inquiry: 

• After conducting such preliminary inquiry as the Court thinks necessary, the Court may: 
• Record a finding that an offence has been committed. 
• Make a complaint thereof in writing. 
• Send the complaint to a Magistrate of the first class having jurisdiction. 
• Take sufficient security for appearance of the accused before such Magistrate. 
• If the alleged offence is non-bailable and Court deems necessary, send the accused in custody to such Magistrate. 
• Bind over any person to appear and give evidence before such Magistrate. 

Power of superior Court: 

• If a Court has neither made a complaint nor rejected an application for making such complaint. 
• The superior Court (within meaning of Section 215(4)) may exercise the power conferred under sub-section (1). 
• This allows hierarchical oversight in the complaint process. 

Signing of complaint: 

• If the complaining Court is a High Court: complaint signed by an officer appointed by the Court. 
• In any other case: complaint signed by the presiding officer of the Court or by an officer authorized in writing by the Court. 

Definition: 

• "Court" has the same meaning as in Section 215 (includes Civil, Revenue, Criminal Courts and specified tribunals). 

Key distinction from normal criminal procedure: 

• Police cannot directly register FIR for these offences. 
• Court must conduct preliminary inquiry and apply its judicial mind. 
• Court must record prima facie satisfaction before making written complaint. 
• Ensures judicial oversight prevents frivolous or motivated prosecutions.