Utt HC | Non-filing of affidavit along with the application under S. 156(3) of CrPC held to be a curable defect

Uttaranchal High Court: Sharad Kumar Sharma, J. contemplated a criminal revision petition, where the main question which had to be decided was related to the revisional power exercised by the Sessions Judge, where an order was rejected by him under Section 156(3) of CrPC and same was held by the Revisional Court, where it set aside the order of the Sessions Judge and remitted the matter back to the Trial Court to consider the application.

The applicant had challenged the order passed by the Revisional Court on the grounds that rejection was rightly made by the Trial Court as no affidavit was accompanied despite being a mandatory requirement. The applicant relied on the judgment in Priyanka Srivastava v. State of UP., (2015) 6 SCC 287, where the Supreme Court held that affidavit was mandatory in order to attach propriety and genuineness to the application preferred under Section 156 (3) of CrPC, it was ought to be supported with an affidavit so as to justify the set of allegations. Another ground for challenge was that when the Revision Court was dealing with the rejection order passed by the Trial Court, then at that point if the Revisional Court allowed the revision, it could have been  a simplicitor setting aside of an order, but once the Revisional Court ordered it contained a direction of remand for reconsideration of  application under Section 156(3), then the Revisional Court could not had issued any specific positive direction as to the manner in which it  was required to be complied with by  the Trial Court on revival of the  proceedings in pursuance to the order of remand by the Revisional Courts order. Hence, the main contention was that it was a futile exercise by the Court to order reconsideration of application, as it was like sitting with preconceived mind and the Trial Court will be more dominated and influenced by the directions.

The Court in the instant application found it necessary to address all the contentions submitted by the applicant, mainly with respect to the case adjudicated by the Supreme Court. The Court observed that in Priyanka Srivastava’s case it was discussed that it should create an impediment and check-in filing of frivolous application and the same being invariably entertained by the Magistrate without even testing the genuineness of the allegations. Hence the main purpose for making the affidavit mandatory along with the application under Section 156(3) was to maintain check and balances over frivolous and vexatious applications. It was further observed that the spirit and the purpose with which the said judgment was rendered it never intended or aimed at any point of time that it  should create an  impediment in entertainment of an application under Section 156(3),  which had been otherwise genuinely filed by the complainant by invoking the provisions contained under Section 156(3).

The Court further on perusal of the directions given by the Revisional Court in the operative portion of the order observed that it simply directed to consider it afresh and under such circumstances the effect of the Revisional Court’s order impugned in the present revision would be that the Trial Court will have to consider the application under Section 156(3) of CrPC, de novo as if it has been filed as afresh.

Court while addressing the main controversy raised that ‘whether it was mandatory to file an affidavit along the application’ as held in the abovementioned case, the Court observed that the Supreme Court’s judgment was for laudable purpose and object to be achieved that the invocation of Section 156(3), should not be made by the applicant to adopt it as a  matter of drawing a farce proceeding against the accused person or for vengeance of personal grievances. Hence, it was directed that the Magistrate when takes cognizance of the matter after the revival would ensure that the defect of not filing of the affidavit by the applicant was rectified and was permitted to file the same.[Commercial Toyota v. State of Uttarakhand, 2019 SCC OnLine Utt 749, decided on 31-07-2019]

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