The main legal point established in the judgment is the mandatory requirement of filing an affidavit in support of an application under section 156(3) of the Code, as emphasized by the court citing the case of Priyanka Srivastava and Another Vs. State of U.P and Others.

JUDGMENT

Ravindra Maithani, J. - Common question of law and facts arise in both these petitions, therefore, they are being decided by this common judgment.

2. Challenge in these petitions under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is the order dated 16.04.2019 passed in Criminal Revision No.23 of 2018, Mahak Singh Vs. State of Uttarakhand and Another, by the Court of learned Additional Sessions Judge, Dehradun (the revision) as well as the order dated 18.07.2019 passed in Misc. Case No. 631 of 2018, Mahak Singh Vs Sangeeta and Others, by the Court of learned Judicial Magistrate, Doiwala, Dehradun (the case).

3. Heard learned counsel for the parties through video conferencing and perused the record.

4. It appears that an application under section 156 (3) of the Code was filed by the respondent no.2 against the petitioners which was registered as Misc. Case No. 631 of 2018, Mahak Singh Vs. Sangeeta and Others, in the Court of learned Judicial Magistrate First, Dehradun. This application was rejected on 07.08.2018 on the ground that respondent no.2 did not file an affidavit in support of the application under section 156(3) of the Code. This order dated 07.08.2018 was challenged by respondent no.2 in the revision. By the impugned judgment and order dated 16.04.2019, learned Revisional Court held that in the case of Priyanka Srivastava and Another Vs. State of U.P and Others, (2015) 6 SCC 287 , it is not directed that an application under Section 156(3) of the Code may be rejected if affidavit is not filed and compliance of Section 154 of the Code is not made. While holding it, the matter was remanded to the learned Court below. Thereafter, the learned Court below vide order dated 18.07.2019 passed in the case allowed the application under Section 156 of the Code and directed the Police to register and investigate the case. Both these orders are impugned herein.

5. Learned counsel for the petitioner Smt. Sangeeta Chauhan would argue that principles of law as laid down in the case of Priyanka Srivastava (supra) are mandatory and non compliance thereof would result in dismissal of the application under section 156(3) of the Code. He also raised the following arguments;

(1) The cognizance order has been mechanically passed and the Court did not apply its judicial mind to find out as to whether prima facie case is made out or not.

(2) There has been no compliance of Section 154 (1) of the Code, which is mandatory in view of the judgment in the case of Priyanka Srivastava case (supra).

6. Learned counsel appearing for the petitioner Sameer Farasi and Vinod Singh Rawat would argue that the impugned order dated 16.04.2019 is without jurisdiction; the cognizance order has been mechanically passed.

7. On the other hand, learned Senior Counsel appearing for respondent no.2 would argue that the application under Section 156 (3) of the Code was not dismissed in the Priyanka Srivastava case (supra) on the ground that affidavit was not be filed alongwith it. It is argued that since now FIR has been lodged pursuant to the directions given by the impugned orders, its effect has to be examined.

8. It is argued that lodging of FIR is a statutory function. FIR is lodged under Section 154 of the Code. Since, FIR is lodged, now the proceedings cannot be quashed unless FIR is also questioned, which is not done; filing of affidavit is a procedural issue. It can be done away with; respondent no.2 filed an affidavit in the High Court and it should be taken as the defect cured; even otherwise, it is argued that an opportunity should be given to the respondent no.2 to file an affidavit in support of the application under Section 156 (3) of the Code. It is also argued that mere non filing of an affidavit in support of the application under Section 156 (3) of the Code does not vitiate the proceedings. Reference has been made to Section 461 of the Code;

9. A very short question requires answer. It is as to whether it is man