S.156(3) CrPC: Affidavit & Prior Police Complaint Mandatory for Magistrate's Investigation Order; Court Quashes FIR Citing Priyanka Srivastava - 2024-11-08

Court Quashes FIR, Stresses Mandatory Affidavit for S.156(3) CrPC Complaint Referrals

Order by Mohammad Nawaz , J. reaffirms Supreme Court's guidelines in Priyanka Srivastava to prevent misuse of criminal proceedings.

In a significant order, a Court presided over by Justice Mohammad Nawaz set aside a Magistrate's decision to refer a private complaint for police investigation under Section 156 (3) of the Criminal Procedure Code (Cr.P.C.) and the subsequent registration of an FIR. The ruling emphasized the mandatory requirement of filing a sworn affidavit by the complainant and demonstrating prior recourse to police authorities under Sections 154 (1) and 154(3) Cr.P.C., as laid down by the Supreme Court in * Priyanka Srivastava and Another vs. State of Uttar Pradesh and Others *.

Case Background

The case originated from a private complaint filed by Respondent No.2, alleging that the petitioners had misused two security cheques issued by the complainant to file a false case against them under Section 138 of the Negotiable Instruments Act. The private complaint accused the petitioners of offences punishable under Sections 420 (cheating), 504 (intentional insult with intent to provoke breach of the peace), and 506 (criminal intimidation) read with Section 34 (common intention) of the Indian Penal Code ( IPC ).

The learned Magistrate, vide order dated March 9, 2023, referred this complaint to the police for investigation under Section 156 (3) Cr.P.C. Consequently, FIR No.268/2023 was registered at Shahapur Police Station. The petitioners challenged this order and the FIR, arguing that the Magistrate failed to follow the Supreme Court's dictum in the Priyanka Srivastava case.

Arguments Presented

The petitioners contended that the Magistrate's order was passed without ensuring compliance with the procedural safeguards mandated by the Apex Court.

Counsel for Respondent No.2 (the original complainant) argued that a submission was made before the Magistrate stating that the police had not registered their case despite a complaint being submitted to higher authorities, and a postal receipt to this effect was provided. However, counsel for Respondent No.2 conceded that a sworn affidavit, as required by the Priyanka Srivastava judgment, was not filed in support of the private complaint.

Court's Reliance on Supreme Court Precedents

Justice Mohammad Nawaz meticulously examined the Supreme Court's decision in Priyanka Srivastava . The Court highlighted paragraphs 29 to 31 of the said judgment, which underscore several key principles:

Application of Judicial Mind: The power under Section 156 (3) Cr.P.C. warrants the application of judicial mind by the Magistrate, as it is a court of law involved, not merely the police acting under Section 154 Cr.P.C.

Mandatory Affidavit: Applications under Section 156 (3) Cr.P.C. must be supported by a duly sworn affidavit from the applicant. This is to ensure the applicant's responsibility and to deter false or frivolous complaints, as a false affidavit can lead to prosecution.

Prior Police Complaint: There must be prior applications made under Sections 154 (1) (complaint to officer in charge of a police station) and 154(3) (complaint to Superintendent of Police) Cr.P.C. These steps must be clearly stated in the S.156(3) application, with supporting documents.

Verification by Magistrate: The Magistrate is advised to verify the truth and veracity of the allegations, especially in cases prone to misuse, such as commercial offences, family disputes, and corruption cases.

The Court also referred to a subsequent Supreme Court decision in * Babu Venkatesh and others vs. State of Karnataka and Another (2022) 5 SCC 639*, which reiterated the necessity of filing an affidavit with a Section 156 (3) Cr.P.C. application.

The judgment quoted the Supreme Court from Priyanka Srivastava : > "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... This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons." > > "31. We have already indicated that there has to be prior applications under Sections 154 (1) and 154 (3) while filing a petition under Section 156 (3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed."

Decision and Its Implications

Observing that the Magistrate in the present case had proceeded to refer the matter for investigation based on the counsel's submission about police inaction, without the mandatory supporting affidavit, the Court found a clear violation of the Priyanka Srivastava guidelines.

In light of these established legal principles and the admitted non-compliance, Justice Mohammad Nawaz set aside the impugned order of the Prl. Civil Judge and JMFC , Shahapur, dated March 9, 2023 (in PCR.No.52/2023), and the subsequent registration of FIR No.268/2023 at Shahapur Police Station.

The Court, however, granted liberty to the original complainant (Respondent No.2) to file a fresh complaint "in accordance with law," implying that a new complaint could be filed if it adheres to all procedural requirements, including the submission of a sworn affidavit and proof of prior applications under S.154 Cr.P.C.

This order serves as a crucial reminder to litigants and magistrates about the stringent procedural safeguards governing the invocation of Section 156 (3) Cr.P.C., aimed at preventing its misuse for harassing individuals through criminal proceedings.