Can Magistrate refuse to entertain a Sec.156(3) CrPC Application if it is not supported with Complaints Affidavit? SC says YES,

 

The Supreme Court has held that authority of the Magistrate cannot be invoked casually under Section 156 (3) CrPC and the complaint must be supported by affidavit.

The Division Bench comprising of Justice BR Gavai and Justice Krishna Murari noted that if the affidavit is found to be false, the person has to deal with the consequence and would be liable for prosecution in accordance with law.

The Court's observation came in while dealing with petition filed in challege to Karnataka High Court judgments dismissing the criminal petitions filed by the present appellants under Section 482 CrPC.

It was alleged in the complaints that the accused had obtained blank stamp papers from the complainants and created Agreements for Sale by misusing the said blank stamp papers, thereby committing forgery and cheating.  The petitioner was thus charged for offences punishable under Sections 420, 464, 465, 468 and 120­B of the IPC on the direction of Magistrate who ordered registration of FIR under Section 156 (3) of the Cr.P.C..

Thereafter, the petitioner-accused 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 which was eventually dismissed.

The petitioner has contended that, the Magistrate was required to apply his mind before passing an order under Section 156 (3) of the Cr.P.C and unless an application under Section 156 (3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, he/ she could not have passed an order under the said provision.

The Court after examining the faults in the complaint, referred to State of Haryana & Ors Vs. Ch. Bhajan Lal & Ors, 1990 Latest Caselaw 365 SC to observe that power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, it has specified certain category of cases wherein such power can be exercised for quashing proceedings.

"in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent No. 2 by filing written statement, he has chosen to file 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 the appellants." 

Giving another reason to allow the present appeal, the Court Mrs. Priyanka Srivastava and another Vs. State of U.P. and Others, 2015 Latest Caselaw 223 SC wherein the the law as to how the power under Section 156 (3) of Cr.P.C. has to be exercised has been analysed and in regard to it, noted 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.

"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"

The Court thus 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. It emphasized on the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit.

 In view of the above, the impugned order by the Magistrate was quashed.

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(With input from news agency language)

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