IN THE HIGH COURT OF UTTARAKHAND

AT NAINITAL

HON’BLE SHRI JUSTICE ALOK MAHRA Criminal Misc. Application No.1656 of 2016

12th August, 2025

Nand Kishore Vyas and Another -- Applicants

Versus

State of Uttarakhand and Another --Respondents ----------------------------------------------------------------------

Presence:-

Mr. Lalit Miglani, learned counsel for the applicants.

Mr. Deepak Bisht, learned DAG along with Mr. Devendra Singh,

learned AGA for the State.

Mr. Pawan Mishra and Ms. Rajni, learned counsel for the private

respondent.

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JUDGMENT

This Criminal Misc. Application has been filed

by the applicants, challenging the order dated 17.11.2016 passed by learned District and Sessions Judge, Haridwar in Criminal Revision No.391 of 2016, Jitender Gaur vs. State and Others, whereby the Revision was allowed and the order dated 27.08.2016 was set aside and matter was remanded back directing the court below to reconsider the application under Section 156 (3)

of Cr.P.C.

2. From the perusal of the record, it reveals that a complaint was made by respondent no. 2 to the S.P. Haridwar, wherein he has alleged that the present

applicants, who are priest in Udeshwar Mahadev Temple, have fraudulently obtained an amount of Rs. 5,55,000/- from respondent no.2 in lieu of purchase of a shop, but despite that, the shop was not given to him by the applicants. On inquiry by the police, it was revealed that the mobile number and the address, which the complainant has given in his complaint, were not in use and the address after much search in the area was also not traceable; that, they also enquired about the matter from the persons nearby the temple, but everyone denied the same. Therefore, the complainant filed an application under Section 156(3) Cr.P.C. against the applicants. Learned Judicial Magistrate 2nd, Haridwar rejected the said application vide order dated 27.08.2016. Against the said order, complainant filed Criminal Revision. The said criminal revision has also been dismissed by learned Sessions Judge, Haridwar, District Haridwar vide order dated 17.11.2016. Hence, this criminal misc. application. 3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the applicants would submit that the application under Section 156(3) Cr.P.C. is not maintainable, as it is not supported by any affidavit; that, before filing the application, the complainant has filed a complaint before the police in which the address and the mobile number given by the complainant are not traceable. The police after investigating held that the allegations made in the complaint are not substantiated and no further police inquiry is required in the matter.

5. Per contra, learned counsel for the complainant would submit that the application under Section 156(3) Cr.P.C. does not mandate that complaint filed under Section 156(3) is to be accompanied by an affidavit.

6. Learned counsel for the applicants has relied upon the judgment passed by the Hon’ble Apex Court in the case of Priyanka Srivatava and Another vs. State of Uttar Pradesh and Others, reported in (2015) 6 SCC 287, wherein the Apex Court has held that the application under Section 156(3) Cr.P.C. seeking direction for registration of FIR must be supported by an affidavit. The relevant paragraphs of the judgment are extracted herein below:-

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 fellows citizens, efforts are to be made to scuttle and curb the same.

30. In our considered opinion, a stage has come in this