The absence of a mandatory affidavit when filing for a FIR under Section 156(3) of the Cr.P.C. invalidates cognizance of the case, showcasing the necessity for procedural compliance in criminal proceedings.

JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Petitioners herein have challenged the impugned proceeding being Sonamukhi PS case no. 102 of 2021 dated 12.07.2021 under section 498A/323/313/307 of INDIAN PENAL CODE (IPC) read with section 3 and 4 of the Dowry Prohibition Act (D.P Act). The aforesaid criminal proceeding started on the basis of a petition of complaint filed by opposite party no. 2 herein under section 156(3) of Cr.P.C. However, after completion of investigation prosecution agency has submitted charge sheet against the present petitioners under the aforesaid sections except section 307 IPC and the court below has taken cognizance upon the said offences.

2. De facto complainant/opposite party no. 2 is the wife and the petitioner no. 1 is the husband and petitioner no. 2 is the Mother-in-law and the petitioner no. 3 is elder-brother-in-law of the opposite party no. 2 by virtue of the matrimonial relationship between the parties which was sermonized on 09.07.2012. After marriage opposite party no. 2 and petitioner no. 1 started residing at matrimonial house of complainant at Purulia. They are also blessed with a male child but thereafter trouble started and the de facto complaint/opposite party had lodged the instant complaint.

3. Being aggrieved by the impugned proceeding Mr. Sourav Chatterjee learned counsel appearing on behalf of the petitioners submits that petitioner no. 2 is a senior citizen and she is suffering from physical deformities. He further submits that on perusal of complaint and other material, it appears that not a single aspersion has been made against the petitioner no. 3 and nothing was seized or collected during investigation to justify the prosecution case as well as the charge levelled against the petitioners. He further submits that the allegations levelled in the complaint do not make out any case against the petitioners under section498A/313/323 of the IPC.

4. Mr. Chatterjee further submits that the present case has been filed in suppression of material fact and has been accentuated with manifest mala fides and same was instituted in order to spite the petitioners for sinister purpose. There is nothing in the record to show that the complainant was ever subjected to any kind of torture for dowry demand or any alleged torture were ever made to such an extent to attract the essential ingredients of section 498A of the IPC.

5. The allegations of miscarriage under section 313 of the IPC is not attributable to the petitioners and on the contrary the de facto complainant at her own terminated her pregnancy while she was at her paternal home and supressed the same to the petitioners for a long time. Infact de facto complainant in her application for custody of child at paragraph 7 clearly admitted that the abortion was done at her own instance. The prescription of doctor as seized by police totally belies the case of the prosecution. Infact learned Magistrate did not show any reason in support of taking cognizance of the offence though under the law the magistrate is legally bound to go through the contents of the allegation brought against the accused persons before taking cognizance. The impugned order taking cognizance does not suggest that he had at all applied his judicial mind.

6. The falsity and privity is apparent from the fact that the complainant/opposite party no. 2 got married on 09.07.2012 but the instant case has been registered on 12.07.2021 i.e. after 9 years of marriage. Mr. Chatterjee further contended that opposite party no. 2 did not comply with the mandatory provision of section 154(1) and 154(3) of the Cr.P.C. and straight way made an application under section 156(3) of the Cr.P.C. and the court below mechanically al