Allowed

Parwati Sahish and Anr. v. Bhuwan Bhaskar Yadav

Chhattisgarh HC26 Nov 2020CRMP/272/2014

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh set aside an order granting an investigation under Section 156(3) CrPC because the applicant failed to demonstrate compliance with prior Section 154(1) and 154(3) requirements, invoking the Supreme Court's decision in Priyanka Srivastava.

What did the court decide?

The impugned order dated 21/01/2014 passed by the Special Judge directing investigation under Section 156(3) CrPC was set aside.

Parwati Sahish and Anr. Vs Bhuwan… — Constitutional and Fundamental Rights | Chhattisgarh HC (2020)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRMP No. 272 of 2014

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1. Parwati Sahish W/o Shri Ramesh Sahish, Aged about 38 years, President, Nagar Panchayat Saragaon.

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2.G.D. Dhahariya S/o Shri Sadaram Dhahariya, Aged
52 years, Chief Municipal Officer, Nagar
Panchayat Saragaon.

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Both are R/o Village Saragaon, Police Station
Saragaon, Tahsil Champa, District Janjgir-Champa,
Civil and Revenue District Janjgir-Champa,
Chhattisgarh.

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 ---Petitioners

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Versus

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Bhuwan Bhaskar Yadav S/o Mohanlal Yadav, Aged 40
years, R/o Village Saragaon, Tahsil Champa,
District Janjgir-Champa, Chhattisgarh.

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 --- Respondent

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For Petitioner :- Mr. Sourabh Sahu, Advocate

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For Respondent :- Mr. Virendra Verma, Advocate

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Hon'ble Shri Justice Sanjay K. Agrawal

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Order on Board

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26/11/2020

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1. The petitioners herein take exception to the

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impugned order dated 21/01/2014 passed by the

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Special Judge under Prevention of Corruption Act,
1988 by which the application under Section 156(3)

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filed by the respondent/complainant has been
allowed and learned Special Judge has directed the
Anti Corruption Bureau to investigate and submit
that report in accordance with law.

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2. Mr. Sourabh Sahu, learned counsel appearing for the petitioner, would submit that before granting the application under Section 156(3) of the CrPC, learned Special Judge has not satisfied himself about the statutory compliance of Section 151(1) as well as Section 154(3) of CrPC, as such, the impugned order passed by learned Special Judge is in teeth of the decision rendered by the Supreme Court in the matter of Priyanka Srivastava v. State of Uttar Pradesh 1, therefore, the impugned order deserves to be set aside.

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3. Mr. Virendra Verma, learned counsel appearing for the respondent, would submit that in paragraph 8 of the application under Section 156(3) of CrPC necessary facts with regard to the statutory compliance of Section 154(1) and 154(3) of CrPC have already been mentioned, as such, it cannot be held that it has not been complied with, therefore, the instant petition deserves to be dismissed.

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1 (2015) 6 SCC 287

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4.The Supreme Court in the matter of Priyanka
Srivastava(supra) laid down the duty and
approach of the Magistrate while exercising the
power under Section 156(3) of the CrPC and
highlighted the preconditions to be satisfied
while entertaining the application under Section
156(3) of the CrPC. It has also been held that
power under Section 156(3) of the CrPC warrants
application of judicial mind and it has to be
supported by an affidavit. It was observed as

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under :-

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“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.

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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. 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

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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.

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31. 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,matrimonialdispute/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. ”

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5.The principle of law laid down in the matter of

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Priyanka Srivastava(supra) has been followed

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with approval by the Supreme Court in Vikram
Johar v. State of Uttar Pradesh2 in which Their
Lordships have noticed the potentiality of
misuse of Section 156(3) to harass those, who
are entrusted with various statutory functions
and emphasized the need that application under
Section 156(3) has to be supported by an
affidavit so that the person making allegation
should take responsibility of what they have
said in the complaint.

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6.Reverting to the facts of the present case in
light of the principle of law laid down by the
Supreme Court in the above-stated judgment
(supra), it is quite vivid that learned Special
Judge, while entertaining the application under
Section 156(3) of CrPC, has not satisfied with
the requirement contained under Sections 154(1)
and 154(3) of the CrPC except for the averment

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madeinparagraph8thatthe
complainant/respondent has sent the substance of
information to the S.H.O. on 27/05/2013 and
thereafter to the S.P., Janjgir-Champa on
31/05/2013. Nothing has been brought on record
to satisfy the Court that he has actually sent

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2 AIR 2019 SC 2109

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the substance of information to the S.H.O. or to
the Anti Corruption Bureau as the offences
levelled against the petitioners are under
Prevention of Corruption Act, 1988, and
thereafter to the Superintendent of Police under
Section 154(3) of CrPC, as such, there is no
compliance of Section 154(1) and 154(3) of CrPC
as no documents have been filed by the
complainant/respondent in support of the
averment made in paragraph 8 of the application
under Section 156(3) of CrPC.

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7.As a fallout and consequence of the aforesaid
legal analysis, the impugned order passed by
learned Special Judge, being in teeth of the
decision rendered by the Supreme Court in
Priyanka Srivastava(supra), is hereby set
aside.

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8. Accordingly, the instant petition is allowed to the extent indicated herein-above. No cost(s).

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Sd/-
(Sanjay K. Agrawal)
Judge

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Harneet

Parwati Sahish and Anr. v. Bhuwan Bhaskar Yadav

Case brief

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Parwati Sahish and Anr. v. Bhuwan Bhaskar Yadav

Case brief

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What did the court decide?

What the court decided

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