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Tag: CrPC 156(3) – Application to be supported by an Affidavit

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Posted on April 9 by ShadesOfKnife

A Single judge bench at Uttarakhand High Court held that non-filing of supporting affidavit in a 156(3) CrPC application, seeking registration of a FIR, is a curable defect and Magistrate may ask the petitioner to file the affidavit before initiating proceedings in the said application.

From Para 10,

10. The main controversy, which is being raised by the learned counsel for the revisionist, was the necessity to file an application under Section 156(3), which has had to be supported by an affidavit as it has been provided by the judgment of the Hon’ble Apex Court in Priyanka Srivastava’s matter (supra). The said judgment had a very 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. The intention and purpose which the judgment wanted to postulate to be adhere to by the Magistrates before whom the applications are filed for taking cognizance of the offence complained of invoking Section 156(3) has had to have an assurance that the factual narration of fact given in the application attaches a sanctity to it and is not based on a frivolous set of allegations. That is why the Hon’ble Apex Court has held that when the application under Section 156(3) is considered by the Court that its the Magistrate concerned, it also castes a duty on the Magistrate himself to ensure that the application preferred under Section 156(3) is authentic and genuine and in order to attach that authenticity, it has been laid down that the application has to be supported with an affidavit.

From Para 12,

12. The very observation made in paragraph 30 (as quoted above) of the judgment of the Priyanka Srivastava’s case (supra) where a responsibility has been shouldered on the Magistrate with regards to the propriety of the application to be supported by an affidavit, i.e. the stage when the proceedings are initiated that in itself makes the defect of the application being supported by an affidavit as to be curable in nature because if an application is not supported by an affidavit and is rejected, it may in a particular circumstance result into depriving of a right of a citizen to invoke the proceedings of Section 156(3) and in these circumstances the Court or the Magistrate can always direct the applicant to file an affidavit in support of his application under Section 156(3) so as to make it maintainable before the Court. If that defect of application under Section 156(3) not being supported with affidavit, is made as an uncurable, it may at times in some cases be giving superior hard to the Magistrate to deprive the applicant of filing application under Section 156(3) by rejecting the same on this procedural ground itself.

From Para 13,

13. In the present case a very peculiar circumstance has emerged the peculiarity is that the revisional court has remitted the matter back to the Trial Court to decide the application afresh. Deciding afresh would mean its at an stage of inception and consideration of the proceedings right from its initial stage, as if it is being entertained for the first time. On revival of the proceedings the Court can always in the light and the spirit enunciated in paragraph 30 of the judgment can direct the applicant (revisionist herein) to support his application along with an affidavit to make it entertainable before the Magistrate concerned. Hence, this Court is of the view that filing of an affidavit in support of Section 156(3) application is curable, in the light and spirit of the observation made in paragraph 30 of the Judgment of Priyanka Srivastava’s case (supra).

Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019

Citations: [2019 SCC ONLINE UTT 749]

Other Sources :

https://www.casemine.com/judgement/in/5d919982714d587fe94d9e28

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

Posted in High Court of Uttarakhand Judgment or Order or Notification | Tagged 1-Judge Bench Decision Commercial Toyota Vs State of Uttarakhand and Anr CrPC 156 - Police Officer's Power to Investigate Cognizable Case CrPC 156(3) - Application to be supported by an Affidavit Legal Procedure Explained - Interpretation of Statutes | Leave a comment

CrPC 156(3) Judgments

Posted on April 7 by ShadesOfKnife

Here is a collection of judgments pertaining to utilization of CrPC 156(3).

  1. Suresh Chand Jain Vs State of Madhya Pradesh and Anr on 10 Jan 2001 [SC: The Complainant need not be examined on Oath by the Magistrate]
  2. Sakiri Vasu Vs State of U.P. and Ors on 7 Dec 2007 [SC: Magistrate has power to order registration of an F.I.R. and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police; Sequence is 154(1), then 154(3) and then 156(3)]
  3. Jagannath Verma and Ors Vs State of UP and Anr on 23 Sep 2014 [All HC: An order of the magistrate rejecting an application under Section 156 (3) of the Code for the registration of a case by the police and for investigation is not an interlocutory order. Such an order is amenable to the remedy of a criminal revision under Section 397]
  4. Priyanka Srivastava and Anr Vs State of UP and Ors on 19 March, 2015 [SC: 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; 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]
  5. Commercial Toyota Vs State of Uttarakhand and Anr on 31 Jul 2019 [Uttarakhand HC: Non-filing of affidavit along with the application under S. 156(3) of CrPC held to be a curable defect]
  6. MS Supreme Bhiwandi Wada Manor Infrastructure Pvt Ltd Vs State of Maharashtra on 26 Jul 2021 [SC: There is no scope for examining the complainant (or any witnesses) in a 156(3) CrPC proceeding, since that stage is pre-cognizance of any cognizable offence]

 


Go to All Protection from Police High-handedness

Posted in Assorted Court Judgments or Orders or Notifications | Tagged CrPC 156 - Police Officer's Power to Investigate Cognizable Case CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 156(3) - Application to be supported by an Affidavit CrPC 156(3) - Magistrate cannot examine the Complainant or Witness on Oath before taking Cognizance | Leave a comment

MS Sujan Multiports Ltd Vs State of Haryana and Ors on 12 March 2019

Posted on August 24, 2020 by ShadesOfKnife

This is the wonderful judgment from Punjab and Haryana High Court. Very good for lawyers and law students alike.

This is what is mentioned by Hon’ble Judge on first page itself. This is just beginning.

The language of Section 156(3) Cr.P.C., though is as simple as it could have been, yet seems to have fallen pray to the fear of ‘unknown’ in its applied interpretations. That ‘unknown’ is the fear arising out of a demon of the Indian system of administration of criminal justice, called the ‘FIR’. This fear is so pervasive that it starts showing its effect even before the ‘FIR’ comes into being, and continues to haunt a person even after he is acquitted of the charge leveled in ‘FIR’.

Entire Complaint filing and cognizance taking upon such complaint is detailed elaborately further.

 

MS Sujan Multiports Ltd Vs State of Haryana and Ors on 12 March 2019
Posted in High Court of Punjab & Haryana Judgment or Order or Notification | Tagged 1-Judge Bench Decision CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 156(3) - Application to be supported by an Affidavit Legal Procedure Explained - Interpretation of Statutes MS Sujan Multiports Ltd Vs State of Haryana and Ors | Leave a comment

Priyanka Srivastava and Anr Vs State of UP and Ors on 19 March, 2015

Posted on December 18, 2019 by ShadesOfKnife

Justice Dipak Misra states that Magistrate has to be alive about the allegation brought to him via Non-cognizable case by Police.

From Paras 26 and 27,

26. 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.

27. 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 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. 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 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.

From Para 30,

30. In the present case, we are obligated to say that learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind.

Priyanka Srivastava and Anr Vs State of UP and Ors on 19 March, 2015

Citations: [AIR 2015 SC 1758], [2015 (3) RLW 2404 (SC)], [2015(3) PLJR 78(SC)], [2015 SCL SC 130 472], [2015 AIOL 3152], [2015 CRIMES SC 2 179], [2015 CRIMES SC 2 209], [2015 CRLJ SC 2396], [2015 JCC SC 2 974], [2015 JT 5 203], [2015 SCALE 4 120], [2015 SCC 6 287], [2015 SLT 3 431], [2015 SUPREME 3 152], [2015 SCC ONLINE SC 272], [2015 CTC 3 103], [2015 KLJ 2 491], [2015 KERLT 2 451], [2015 SCC CRI 4 153], [2015 SCC CIV 3 294]

Indiankanoon.org link: https://indiankanoon.org/doc/163299097/

Casemine link: https://www.casemine.com/judgement/in/5790b242e561097e45a4e25a


The Index for Defamation Judgments is here.


 

Posted in Supreme Court of India Judgment or Order or Notification | Tagged 2-Judge (Division) Bench Decision CrPC 154 - Information in Cognizable Cases CrPC 156(3) - Any Magistrate Empowered u/s 190 May Order Such an Investigation as above-mentioned CrPC 156(3) - Application to be supported by an Affidavit CrPC 199 - Defamation IPC 499 - Defamation IPC 500 - Punishment For Defamation Lalita Kumari Vs Govt.Of U.P. and Ors Priyanka Srivastava and Anr Vs State of UP and Ors Reportable Judgement or Order

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