Procedural irregularities in filing an affidavit under Section 156(3) of Cr.P.C do not invalidate the investigation if substantial material exists to support charges.

ORDER

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 , (` Cr.P.C ’ for short hereafter) with prayer to quash Annexure A3 final report and all further proceedings in C.C.No.989/2023 on the files of the Judicial First Class Magistrate Court, Wadakkanchery arising out of Crime No.351/2023 of Pazhayannur Police Station, Thrissur District. The petitioners are accused Nos.1 and 2 in the above case.

2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail.

3. I have perused Annexure-A3 final report and other relevant documents.

4. In this matter, the prosecution alleges commission of offences punishable under Sections 406 and 498 A of the Indian Penal Code by the accused.

5. The prosecution allegation herein is that the 1^st accused herein married the defacto complainant on 28.10.2014 as per Hindu religious customs and they lived together as husband and wife at the matrimonial home. While so, the husband/1^st accused and the mother of the 1^st accused/2^nd accused, subjected her to cruelty. The further allegation is that during this stage, accused 1 and 2 misappropriated her gold ornaments and thereby committed breach of trust as well as cheating without giving back the gold ornaments to the defacto complainant. This crime was registered when the defacto complainant lodged Annexure-A1complaint before the Judicial First Class Magistrate Court, Wadakkanchery, seeking investigation under Section 156 (3) of Cr.P.C . The learned Magistrate directed investigation by the police. On completion of investigation, the police filed Annexure-A3 final report alleging commission of offences punishable under Sections 498A and 406 of the Indian Penal Code.

6. The learned counsel for the petitioner submitted that, in this case along with the complaint filed by the complainant, which led to cognizance of this case, an affidavit mandated as per the decision "Babu Venkatesh and Others v. State of Karnataka and Another 2022(5) SCC 639 " not produced. Therefore, the proceedings are vitiated and for the said reason alone, the quashment sought for is liable to be allowed. It is also submitted that, though this Court in (1) "Don Paul v. State of Kerala 2024 (3) KHC 617 " referring (2) " Midhun v. State of Kerala and Others 2022 KHC 2" held that violation of preconditions to be satisfied before seeking investigation under Section 156 (3) Cr.P.C would not make the investigation and final report thereof non-est, this Court did not specifically consider the impact of non filing of affidavit in the said case.

7. In paragraph No:10 of Don Paul v. State of Kerala (supra) this Court set out the preconditions to be satisfied before seeking investigation under Section 156 (3) of Cr.P.C as under:

“10. Retorting to the first question, it is answered that the following preconditions to be satisfied before seeking investigation under Section 156 (3) of Cr.P.C before a Magistrate:

1) Where applications under Section 156 (3) of Code of Criminal Procedure are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

2) In an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations.

3) Prior to the filing of a petition under Section 156 (3) of the Code of Criminal Procedure, there have to be applications under Section 154(1) and 154(3) of the Code of Criminal Procedure.”

8. Again in paragraph 13 this Court held as under:

“On reading the facts of the present case wh