Magistrate shall not entertain application u/s 156(3) CrPC if it is not supported by complainant's affidavit

Magistrate shall not entertain application u/s 156(3) CrPC if it is not supported by complainant's affidavit

Babu Venkatesh Vs State of Karnataka

Supreme Court

18/02/2022

CRIMINAL APPEAL NO. 252 OF 2022

About/from the judgment:

The Supreme Court observed that a Magistrate cannot entertain an application under Section 156 (3) of the Code of Criminal Procedure, when the complaint was not supported by an affidavit.

With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law, the bench comprising Justices BR Gavai and Krishna Murari noted.

In this case, the allegations in the complaints are that the accused had obtained blank stamp papers from the complainants and created Agreements for Sale by misusing the said blank stamp papers and thus committed forgery and cheated them, and as such they are liable for punishment for offences punishable under Sections 420, 464, 465, 468 and 120­B of the Indian Penal Code. The II Additional Chief Metropolitan Magistrate, at Bangalore, directed the police to register FIR. The accused thus approached the High Court contending that the order under Section 156 (3) of the Cr.P.C. was passed in a mechanical manner by the Magistrate. The High Court, however, dismissed their petitions.

Before the Apex Court, it was contended on behalf of the accused that the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C. It was further submitted that, unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the learned Magistrate could not have passed an order under the said provision. The accused also submitted that the dispute was purely civil in nature and the criminal complaint was filed by only to harass them.

The bench noted the following after referring to the judgment in Priyanka Srivastava and Another v. State of Uttar Pradesh (2015) 6 SCC 287.

"This court has clearly held that, a stage has come where applications under Section 156 (3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.. This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156 (3) of the Cr.P.C. are filed in a routine manner without taking any responsibility only to harass certain persons. This court has further held that, prior to the filing of a petition under Section 156 (3) of the Cr.P.C., there have to be applications under Section 154 (1) and 154 (3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156 (3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law"

The court thus observed that the Magistrate while passing the order under Section 156 (3) of the Cr.P.C., has totally failed to consider the law laid down by it.

"In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156 (3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has dismissed the petitions by merely observing that serious allegations are made in the complaint."

The court also noted that the accused had filed civil suits with regard to the same transactions. The complainants, who are defendants in that suit filed complaint under Section 156 (3) of the Cr.P.C. after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing them, the court noted.

The bench therefore quashed the criminal proceedings observing that the continuation thereof would amount to nothing but an abuse of process of law.

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