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2024 Supreme(Online)(MAD) 11948
HIGH COURT OF MADRAS
Hon`ble Mr.Justice M.DHANDAPANI
Thamarai Selvi – Appellant
Versus
The Inspector of Police – Respondent
A complaint under Section 156(3) Cr.P.C. must be accompanied by a sworn affidavit, ensuring accountability and legal compliance.
Headnote:
Criminal - Private Complaint - Section 156(3) Cr.P.C. - The court held that a complaint under Section 156(3) must be supported by a sworn affidavit, and failure to do so renders the complaint invalid.
Fact of the Case:
The petitioner sought to set aside an order directing police action based on a complaint filed by his brother alleging forgery related to their grandfather's property. The trial court issued its direction without a sworn affidavit from the complainant.
Finding of the Court:
The court found that the trial court failed to ensure compliance with the requirement of filing a sworn affidavit to support the complaint, contradicting established legal principles.
Issues: Whether a court petition under Section 156(3) Cr.P.C. requires a sworn affidavit for validity.
Ratio Decidendi: The necessity of a sworn affidavit to accompany a complaint under Section 156(3) Cr.P.C. was underscored, emphasizing that failure to file such affidavit invalidates the complaint.
Final Decision: The petition is allowed, and the lower court's order is set aside.
O RDER
This Criminal Original Petition has been filed seeking to set aside the order dated 27.07.2022 made in Cr.M.P.No.24 of 2022 on the file of the Land Grabbing Special Court, Ramanathapuram.
2. The case of the prosecution is that the second respondent, who is an Advocate, has filed a private complaint under Section 156(3) of Cr.P.C. against the first respondent Police alleging that the petitioner has lodged a complaint on 22.07.2022 to the first respondent Police against the petitioner and others, but the first respondent Police did not take any action against the petitioner and others. It is alleged that the petitioner colluded with others had created forged life certificate in connection with power of attorney of his grandfather and thereby, trying to grab his ancestral property.
4. The trial Court, by its Order dated 27.07.2022 after satisfying all the prima facie materials, issued a direction to the respondent Police to file a report within a month. Challenging the same, the present petition has been filed.
5. The learned counsel appearing for the petitioner would submit that the petitioner and the second respondent are sister and brother respectively. The second respondent filed a private complaint under Section 156(3) Cr.P.C, before the trial Court. He would further submit that if at all any dispute arose with regard to the genuineness of the life certificate, it is a matter for adjudication before the trial Court and not before this Court. He would further submit that the learned Judicial Magistrate has mechanically passed the order without verifying as to whether the complaint is filed with a sworn affidavit by the complainant or not. He would further submit that in the present case, without filing a sworn affidavit, the mere petition filed seeking a direction is illegal and the same is contrary to the law laid down by the decision rendered by 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. Accordingly, he prays for allowing the petition.
6. Though the name of the second respondent has been printed in the cause list, today neither the second respondent nor his counsel is present before this court to prosecute the matter.
7. Considering the pendency of this petition, even though none appears on behalf of the second respondent, this petition is taken up for final disposal.
8. The learned Government Advocate (Criminal Side)
appearing for the respondent Police would submit that there is no sworn affidavit filed by the complainant before the trial Court. In the absence of sworn affidavit, the trial Court has issued a direction to register the case, pursuant to which, the first respondent Police has registered a case in Crime No.12 of 2022 for the offence under Sections 465, 468, 420, 471 r/w 120(b) IPC. Accordingly, he prayed for appropriate orders.
9. Considering the submissions made on either side, this Court is of the view that the application filed under Section 156(3) of Cr.P.C. has to be supported by an affidavit duly sworn by the applicant, who seeks invocation of the jurisdiction of the Magistrate. However, in the present case, without filing sworn affidavit, the complaint has been filed before the trial Court by the second respondent, which was taken cognizance by the trial Court. It is relevant to extract Paragraph Nos.30 and 31 of the decision rendered by 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 :
“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
