IMPORTANT POINT
Applications under Section 156(3) of Cr.P.C. must be supported by a sworn affidavit to ensure accountability and prevent misuse of judicial authority.

ORDER :

(Mohammad Nawaz, J.)

The order passed by the learned Magistrate referring the private complaint filed by respondent No.2 to the police for investigation under Section 156 (3) of Cr.P.C. and subsequent registration of FIR is questioned in this petition, on the ground that the dictum of the Hon’ble Apex Court, in the case of Priyanka Srivastava and another vs. State of Uttar Pradesh and others, reported in (2015) 6 SCC 287, has not been followed.

2. In the complaint it is alleged that two cheques which were issued by the complainant towards security, were misused by the petitioners by filing a false case against them alleging offence punishable under Section 138 of N.I. Act etc., The complaint alleging offences punishable under Sections 420, 504 and 506 read with Section 34 of IPC, was referred to police for investigation under Section 156 (3) of Cr.P.C. by the learned Magistrate vide order dated 09.03.2023, consequent to which FIR in Crime No.268/2023 was registered at Shahapur Police Station.

3. The Hon’ble Apex Court in the above referred decision at Paras No.29 to 31 has held as under:

“29. At this stage it is seemly to state that power under Section 156 (3) warrants application of judicial mind. A Court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.

30. 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 the 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.

31. We have already indicated that there has to be prior applications under Sections 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 application under Section 156 (3) be supported by an affidavit is 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.”

4. In the case on hand, the impugned order passed by the learned Magis