Chh HC | Power under S. 156(3) of the CrPC warrants application of judicial mind and it has to be supported by an affidavit

Chhattisgarh High Court: Sanjay K Agrawal J., quashed the impugned order and allowed the petition.

The present petition was directed against the impugned order passed by the learned Magistrate in an application filed under Section 156(3) of the CrPC and consequent registration of FIR for offences punishable under Sections 420, 465, 468, 471 and 177 of the IPC.

Counsel for the petitioners submitted that in a complaint under Section 156(3) of CrPC filed by respondent 3 against the officer of BALCO with regard to certain recruitment conducted by BALCO alleging commission of offence under Sections 420, 465, 468, 471 and 177 of IPC, the learned Magistrate directed the Station House Officer, Police Station Balco Nagar to investigate the matter consequent to which the final report was submitted stating that no cognizable offence was found to have been committed by the petitioner, yet the learned Magistrate on the request of the complainant, sought information from the Station House Officer, whether he has lodged written FIR in accordance with Section 156(3) of the CrPC and consequently, FIR was registered on 8- 5-2014 by Police Station Balco Nagar for the aforesaid offences which is ex facie illegal and bad in law.

Counsel for the respondents opposed the petition and supported the impugned order.

The Court relied on judgment Priyanka Srivastava v. State of Uttar Pradesh, (2015) 6 SCC 287 wherein it was observed

“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.

  1. In our considered opinion, a stage has come in this country where Section 156(3) CrPC 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 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. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
  2. We have already indicated that there has to be prior applications under Section 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. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”

The Court thus observed that it is quite vivid that in the instant case, there is only compliance of Section 154(1) of the CrPC and there is complete non-compliance of Section 156(3) of the CrPC and on the direction of the learned Magistrate, Police Station Balco Nagar submitted report that no cognizable offence has been made out upon investigation, yet the Magistrate again directed to lodge FIR and accordingly, FIR has been lodged. Since in the investigation report submitted, no offences were said to have been committed by the petitioner, it was open to the learned Magistrate to proceed under Section 190 or 200 of the CrPC, but instead of that, the Magistrate directed for registration of FIR. Once the ingredients of Section 156(3) of the CrPC are found missing as held by the Supreme Court, the learned Magistrate could not have directed for registration of FIR under Section 156(3) of the CrPC particularly when a categorical report was submitted by Police Station Balco Nagar that no offence has been committed by the petitioner.

The Court thus held that order of the learned Magistrate is in teeth of Section 156(3) of the CrPC as well as in teeth of the judgment rendered by the Supreme Court in Priyanka Srivastava (supra).

In view of the above, impugned order was quashed and petition was allowed.[Amit Joshi v. State of Chhattisgarh, 2021 SCC OnLine Chh 235, decided on 05-02-2021]


Arunima Bose, Editorial Assistant has put this story together

3 comments

  • […] Chh HC | Power under S. 156(3) of the CrPC warrants application of judicial mind and it has to be su… […]

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    What is judicial mind? It also needs some clarity

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    The CrPC clearly says that the Magistrate, after taking cognisance of a Complaint, while issuing summons, must enclose a copy of the Complaint alongwith the summons.
    But we find that, in all cheque bounce cases, the copy of complaint, is not enclosed. And if the Accused approaches the High Court for relief, the Accused is told to first obey the summons, by appearing before the Magistrate.
    Is the High Court justified in taking such a view when the summons is not accompanied by the copy of the complaint?

    This question is not merely academic. In a lot of cheque bounce cases, the accused happen to reside in far off places and when there are multiple accused, it really becomes hectic for the Accused to secure the Complaint Copy, as it is given by the Magistrate only after all the accused are present for questioning.
    Is the Magistrate right in adopting this procedure when CrPC mandates copy to be given when summons is issued?

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