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Necessary averments to be made in an affidavit filed in support of complaint under Section 156 of CrPC


Crl. P. No. 8636/2017

Decided On: 05.03.2018

Ganesh Krishnan


Ramesh Nanjund Shastri and Ors.

Hon’ble Judges/Coram:K.N. Phaneendra, J.

1. The present petition is filed seeking quashing of the order passed by the 4th Addl. CMM, Bengaluru, dated 08.08.2017 in PCR No. 4020/2015 in referring the said private complaint for investigation to the Police, U/s. 156(3) of Cr.P.C. and consequential registration of a crime by Koramangala Police in Crime No. 347/2017.

2. The main contention raised by the learned counsel for the petitioner is that, the respondent has filed a private complaint in PCR No. 4020/2015 for the alleged offences punishable U/s. 406, 420 r/w Sec. 420 of IPC against the petitioners. Earlier the learned Magistrate has referred the said complaint to the Police for investigation and report. The said order dated 21.01.2016 in referring the complaint, was challenged before this Court in Crl.P. No. 7034/2016. Vide orders dated 02.06.2017 this Court quashed the said order dated 21.01.2016 and remitted the matter on to the file of the learned Magistrate to pass appropriate orders in the light of the decision rendered by the apex Court reported in MANU/SC/0344/2015 : 2015, AIR SCW, 2075 in the case of Priyanka Sreevatsa & another Vs. State of Uttar Pradesh and others. Even after remand, the learned Magistrate once again referred the complaint to the Police for investigation without looking into the said decision of the apex Court nor complied with the requirement as per the said decision. Therefore, the learned counsel for the petitioner submits that referring the said complaint once again to the Police and consequential registration of the FIR and as well as filing of any charge sheet, if any, are all bad in law and are liable to be quashed.

3. Per contra, learned counsel for the respondents strenuously contends before this Court that, after reference of the complaint, the Police have already investigated the case and filed charge sheet before the trial Court. Therefore, even though there is some irregularity in referring the complaint to the Police, but when once the charge sheet is filed, it may not be proper to quash the entire charge sheet papers and nullify the effect of the cognizance taken to the trial Court as the charge sheet itself. Therefore, the learned counsel contends that the petition may be dismissed.

4. I have carefully perused the orders of the trial Court passed after remanding of the case which is impugned.

5. The learned magistrate after remanding of the case has not properly considered the observations of this Court, however, he has called upon the complainant to file an affidavit in support of his complaint, a notification to refer the matter to the concerned jurisdictional Police for investigation and report U/s. 156(3) of Cr.P.C. But the learned magistrate has not even looked into what is the nature of the affidavit that has been filed by the complainant. Merely in one sentence the magistrate has stated that, the affidavit in support of his application for referring the matter to the Police has been filed. He has not even taken care as to whether such an affidavit complies the requirement as per the guidelines of the apex court and whether that affidavit is sufficient to refer the complaint to the Police once again U/s. 156(3) of Cr.P.C.

6. In the said decision noted supra, the apex Court has specifically considered about the nature of affidavit that should be filed by the party and what should be the contents of the said affidavit. Even the magistrate has not even had patience to go through the said decision of the apex Court to find out whether such affidavit filed by the complainant is in compliance with the direction of the apex court. Therefore, it is worth to reiterate the said guidelines of the apex court which are at paragraph Nos. 30 and 31 of the decision, which read as under:

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In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

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7. Therefore, it is clear from the above said decision that, the complainant has to state that he has exhausted the remedy U/s. 154(1) and 154(3) of Cr.P.C. and he has to clearly spell out in the application and in the affidavit and necessary document to that effect shall be filed. Thereafter the Court has to take a decision as to whether the application U/s. 156(3) of Cr.P.C. to be referred to the Police or not a decision has to be taken by the Court after applying its judicious mind. But this exercise has not been done by the trial Court, but very casually and mechanically referred the complaint to Police for investigation.

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8. Even on perusal of the affidavit filed in support of the complaint after remand (a copy is produced), nowhere it is stated that, the complainants have made any efforts go to the Police, whether the Police have not taken any action, whether for the inaction of the Police the complainant has approached the Superintendent of Police as per Sec. 154(3) of Cr.P.C. The affidavit is nothing but the reiteration of the entire complaint averments and nothing else. Therefore, the said affidavit is only in partial compliance of the decision of the apex Court.

9. The filing of the affidavit according to the above said decision of the apex Court serves two purposes. One is, the person has already exhausted the remedy of approaching the Police as per the normal course by filing the first information, making allegation against the persons who have committed any offences under any penal law for the time being in force and as the said system or Police machinery have not taken any action, therefore, he was forced to come to the Court. Secondly, the affidavit also serves another purpose that, if for any reason the Police found after reference of the case, that case is false and the Court finds that a false affidavit has been filed before the Court, then the Court can take action against the complainant for perjury or for any offences for the time being in force. These are the major aspects which are considered by the apex Court in the said decision. This has lost sight of the learned magistrate in again referring the complaint to the Police for investigation in a blind folded attitude.

10. Learned counsel for the respondent has strenuously contends before the Court that, when once the matter has already been referred by misconception by the learned magistrate particularly on facts and also when the Police have already investigated the matter and submitted the charge sheet, though it is a irregular proceedings, it cannot be quashed. He relies upon a decision reported in MANU/SC/1086/2017 : AIR 2017 SC 5141 (R.A.H. Siguran V. Shankare Gowda alias Shankara and Anr.) wherein the apex Court has observed that, “quashing of Criminal proceedings due to invalidity of investigation is not warranted”, the order of High Court quashing the proceedings merely on the ground that investigation was not valid, is unjustified.

10(a). In the said case, before the apex Court, the case was registered by the Police under the provisions of Immoral Traffic Prevention Act, 1956. According to Sec. 13 of the Act, the Police Officer who specially authorized or any Officer who is specially authorized to investigate the case is only empowered to investigate the matter. But, in the said case a Sub Inspector of Police who was not authorized, has actually investigated the matter and submitted the charge sheet before the High Court and the Court found, that there was no legally required empowerment for to taking of cognizance by the Court as the investigation has been done by the incompetent Police Officer. Therefore, having found that this High Court has quashed the said proceedings. The apex Court after relying upon various decisions has come to the conclusion that, such mere irregularity in investigation though conducted in violation of the provision of law, but unless it is shown to the Court that a prejudice has been occurred to the accused, such investigation cannot be quashed. Consequently, the Court has set aside the order of this Court and remitted the matter to the trial Court to proceed with the trial.

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11. In another ruling reported in 1994 SCC (Cri) 500 (State of Punjab V. Dharam Vir Singh Jethi), the apex Court has observed that, quashing of FIR after filing of charge sheet not permissible, High Court erred in quashing the FIR on the ground of delay in filing it, without applying its mind to the limitation provisions, etc.

12. After perusal of the above said two decisions, though this Court is of the opinion that the learned magistrate has committed an error in again referring the matter to the Police for investigation but once the object of referring the complaint U/s. 156(3) of Cr.P.C. is completely accomplished and nothing remains before the magistrate so for as the private complaint is concerned, though there is some lacuna in referring the matter to the Police and investigation by the Police but when the challenge is before this Court only with regard to the FIR registered by the Police, when the charge sheet has not been challenged before this Court. In my opinion, the charge sheet filed by the Police and consequential taking of cognizance of the magistrate after registering a criminal case, cannot be quashed.

13. Though the learned counsel for the petitioner has contended that, once the reference order itself is bad in law, the whole proceedings are vitiated by serious illegality but the same question is already answered by the apex Court in the case reported in MANU/SC/1086/2017 : AIR 2017 SC 5141 stated supra. Though there is irregularity in referring the complaint by the magistrate, but the subsequent proceedings, that is the investigation by the jurisdictional Police U/s. 154 of Cr.P.C. is not taken away and such investigation cannot be said to be invalid which ultimately culminating in taking of cognizance by a judicial order. However, if the cognizance taken by the magistrate on the basis of the report submitted by the Police is without any basis and taking of cognizance itself is bad in law for any other reasons, in such an eventuality the petitioners can challenge the said order of taking cognizance and in turn the charge sheet filed by the Police. Once the Police filed the final report and subsequently a judicial order is passed by taking cognizance, unless the said judicial order is challenged before the Court, the same cannot be quashed.

14. Though this Court is not happy with the attitude of the magistrate in not properly understanding the decision of the apex Court and acting in pursuance of the said direction of the apex Court, but the fact that remains that the charge sheet has already been filed and on the basis of the same cognizance has been taken, for that reason only Court is reluctant to quash the proceedings.

15. Under the above said facts and circumstances of the case, I do not find any strong reasons to quash the reference order once again made by the trial Court and the consequential registration of the FIR. However, liberty is given to the petitioner, if advised, to challenge the charge sheet and the cognizance by the magistrate, if cognizance is taken without any basis.

With the aforesaid observations, the petition stands dismissed.

The registry is hereby directed to send a copy of this order to the concerned Judge who has passed the order, wherever he is, for guidance.

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