Magistrate ought not to entertain application u/s 156 (3) of CrPC, when complaint is not supported by affidavit duly sworn by complainant: Supreme Court


Read Judgment: Babu Venkatest & Others vs. State of Karnataka & Others 

Pankaj Bajpai

New Delhi, February 21, 2022: While considering the sufficiency of an order u/s 156(3) of CrPC passed by the Additional Chief Metropolitan Magistrate in a mechanical manner on an application which was not supported by an affidavit duly sworn by the complainant, the Supreme Court has reiterated the necessity to file an affidavit with such a requirement, so that the persons would be deterred from causally invoking authority of the Magistrate u/s 156(3) of CrPC, by referring to the decision in Priyanka Srivastava and Another v. State of Uttar Pradesh and Others , (2015) 6 SCC 287

A Division Bench of Justice B.R Gavai and Justice Krishna Murari observed that when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application u/s 156(3) of the CrPC. 

The background of the case was that, the second & third appellant (son of Babu Venkatesh – First appellant) along with second respondent entered into various Agreements for Sale with respect to properties situated at Bangalore. According to the appellants, the amounts were paid by them as consideration by three cheques, one of them drawn from the account of first appellant, another one from account of M/s. S.S.R.V Trans Solutions and other one from the account of M/s. Shobha Tours and Travels, which have been operated by the first appellant. However, after the cheques were encashed, the second respondent was avoiding the Sale deed from being registered. 

As such, the appellants filed four different suits before the Courts of Principal Senior Civil Judge and Principal City Civil Judge at Bangalore, for specific performance of contract. On the other hand, the second respondent filed a police complaint against the appellants, thereby making allegations of cheating, contending that the first appellant had created Agreements for Sale by misusing the said blank stamp papers. Thereafter, the ACMM passed an order, on the basis of which FIR came to be registered for the offences punishable u/s 120B, 420, 471, 468, 465, of the IPC

On writ filed by appellants u/s 482 CrPC urging that the Magistrate was required to apply his mind before passing an order u/s 156(3) of CrPC, the Single Judge of the High Court dismissed the petitions on the ground that, serious allegations of cheating and forgery were shown in the complaint and as such no case was made out for quashing the FIRs.

After considering the submissions, the Top Court found that the complaint was filed almost after a period of two years from the date of institution of suits by the appellants, and almost after a period of one and a half year from the date on which written statement was filed by the second respondent. 

Speaking for the Bench, Justice Gavai noted that this Court in the case of State of Haryana and Others v. Bhajan Lal and Others, 1992 Supp (1) SCC 335, has cautioned that, power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, it has specified certain category of cases wherein such power can be exercised for quashing proceedings.

In the present case, though civil suits had been filed with regard to the same transactions and though they were contested by the second respondent by filing written statement, he had chosen to file complaint u/s 156(3) CrPC after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing the appellants, added the Bench. 

Therefore, Justice Gavai highlighted that the present case fits under the category as mentioned in Bhajan Lal’s Case (Supra), which states of a situation where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 

Accordingly, the Apex Court set aside the judgment of the High Court and concluded that the continuation of the present proceedings would amount to nothing but an abuse of process of law. 

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