High Court quashed criminal proceedings u/s 482 Cr.P.C. holding complaint under Cr.P.C. s.200 seeking investigation u/s 156(3) unmaintainable without a sworn affidavit as required by Sri Priyanka Srivastava and Babu Venkatesh judgments, noting dispute was civil.
Criminal Petition allowed; impugned proceedings in C.C.No.8048/2021 quashed qua the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRL.P No. 8374 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 8374 OF 2021
BETWEEN:
SRI R.VENKATESH
S/O LATE D.RAMAIAH AGED ABOUT 44 YEARS RESIDING AT LAKSHMISAGARA VILLAGE NERULURU POST, ATTIBELE HOBLI ANEKAL TALUK – 562 107.
…PETITIONER
(BY SRI VIKRAM HUILGOL, SR. ADVOCATE FOR SRI KARTHIK V., ADVOCATE)
AND:
Digitally signed by PADMAVATHI B K Location: High Court of Karnataka
SURYANAGARA POLICE BENGALURU DISTRICT REP. BY STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE HIGH COURT BUILDINGS BENGALURU – 560 001.
AGED ABOUT 52 YEARS
CRL.P No. 8374 of 2021
R/AT S.L.V NAGARA, HENNAGARA GATE ATTIBELE HOBLI, ANEKAL TALUK – 562 107.
…RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1;
SRI C.V.ANNAIAH, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET IN FIR NO.16/2019 DATED 14.01.2019, WHICH IS REGISTERED AS C.C.NO.8048/2021 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC AT ANEKAL, A COPY OF WHICH IS PRODUCED AT ANNEXURES E AS AGAINST THE PETITIONERS.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in C.C.No.8048/2021 arising out of crime No.16/2019, pending before the II Additional Civil Judge & JMFC, Anekal, for the offences punishable under Sections 120B, 406, 417, 420 r/w. 34 of the IPC.
CRL.P No. 8374 of 2021
3.Brief facts of the case leading to the filing of the petition as projected by the prosecution is as follows:
An agreement to sale is entered into by respondent No.2 and one Ratnamma with one C.M.Mazar - accused No.1 on 28.05.2018. Respondent No.2 is said to have paid Rs.32 lakhs to accused No.1 on 10.08.2018. It is alleged that accused No.1 approaches respondent No.2 and received Rs.5 more lakhs on the guise of urgent need of funds for obtaining survey sketch. It transpires that accused No.1 has sold the very property which was the subject matter of agreement of sale on 05.12.2018, to the petitioner who thus comes into picture as subsequent purchaser.
CRL.P No. 8374 of 2021
Magistrate seeking a direction for investigation under Section 156(3) of Cr.P.C. It is pursuant to the said direction, the police registers a crime against the petitioner and other accused in crime No.16/2019, after which, the police have filed a charge sheet against the petitioner and other accused. It is at that juncture, the petitioner has knocked the doors of this Court in the subject petition.
CRL.P No. 8374 of 2021
complainant has admittedly approached the civil Court in O.S.No.30/2019.
CRL.P No. 8374 of 2021
“Complainant under section 200 of code of criminal procedure R/w 156(3) of code of criminal procedure.”
The learned Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C. and later becomes crime No.16/2019. It is an admitted fact that the complaint is not accompanied by an affidavit of the complainant, as it was only verified by the complainant as could be seen from the records. Therefore, the complaint itself is not maintainable in the light of the fact that the complaint is not accompanied by an affidavit as is held by the Apex Court in the case of PRIYANKA SRIVASTAVA
(supra) , wherein the Apex Court has held as follows:
“ 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 fellow citizens, efforts are to be made to scuttle and curb the same.
CRL.P No. 8374 of 2021
30 . 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 the 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.
31. We have already indicated that there has to be prior applications under Sections 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 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
CRL.P No. 8374 of 2021
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 [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
(Emphasis supplied)
The aforesaid judgment is subsequently followed in the case of BABU VENKATESH (supra) reported in (2022) SCC
Online SC 200, wherein the Apex Court held as follows:
“12. It was submitted that, the Magistrate was required to apply his mind before passing an order under Section 156(3) of the Cr.P.C. It was further submitted that, unless an application under Section 156(3) of the Cr.P.C. was supported by an affidavit duly sworn by the complainant, the learned Magistrate could not have passed an order under the said provision.
... … … …
23. Further we find that, the present appeals deserve to be allowed on another ground.
24. After analyzing the law as to how the power under Section 156(3) of Cr.P.C. has to be exercised, this court in the case of Priyanka
CRL.P No. 8374 of 2021
Srivastava v. State of Uttar Pradesh has observed thus:
“30. 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 the 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.
31. We have already indicated that there has to be prior applications under Sections 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 application under Section 156(3) be supported by an affidavit is so that the person making the application
CRL.P No. 8374 of 2021
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 [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
25. This court has clearly held that, a stage has come where applications under Section 156(3) of Cr.P.C. are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.
26. This court further held that, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. The court has noted that, applications under Section 156(3) of the Cr.P.C. are
CRL.P No. 8374 of 2021
filed in a routine manner without taking any responsibility only to harass certain persons.
27. This court has further held that, prior to the filing of a petition under Section 156(3) of the Cr.P.C., there have to be applications under Section 154(1) and 154(3) of the Cr.P.C. This court emphasizes the necessity to file an affidavit so that the persons making the application should be conscious and not make false affidavit. With such a requirement, the persons would be deterred from causally invoking authority of the Magistrate, under Section 156(3) of the Cr.P.C. In as much as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.
28. In the present case, we find that the learned Magistrate while passing the order under Section 156(3) of the Cr.P.C., has totally failed to consider the law laid down by this court.
29. From the perusal of the complaint it can be seen that, the complainant/respondent No. 2 himself has made averments with regard to the filing of the Original Suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3) of the Cr.P.C. The High Court has also failed to take into consideration the legal position as has been enunciated by this court in the case of Priyanka Srivastava v. State of U.P. (supra), and has
CRL.P No. 8374 of 2021
dismissed the petitions by merely observing that serious allegations are made in the complaint.”
This Court following the aforesaid judgments of the Apex Court has held as follows:
“8. To consider the said solitary issue, it is germane to notice Section 154 of the Cr.P.C. Section 154 of the Cr.P.C. runs as follows:
“ 154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in
CRL.P No. 8374 of 2021
charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence.”
(Emphasis supplied)
Section 154 of the Cr.P.C. deals with information in cognizable offences. Certain duties are enjoined to the informants in terms of Section 154 of the Cr.P.C. Prior to registration of a complaint under Section 200 of the Cr.P.C. it is mandatory for the complainants who seek to register a private complaint to aver, in the least, that they have made efforts to register a complaint before the jurisdictional police and that having not borne any fruits, left with no choice, have knocked the doors of the learned Magistrate and while saying so, an affidavit accompanying the complaint must be necessarily made, more particularly, in a case where the complainant seeks investigation under Section 156(3) of the Cr.P.C. from the hands of the jurisdictional
CRL.P No. 8374 of 2021
police. The purport of this is, the complainant who takes the route of filing a private complaint and seeks investigation under Sections 156(3) of the Cr.P.C., shall file an affidavit accompanying the said complaint and also submit about the failure of efforts taken to get a complaint registered before the police.
Xxxxxxxxx
On the bedrock of the principles enunciated in the afore-quoted judgments of the Apex Court, if the complaint registered under Section 200 of the Cr.P.C. and the prayer is noticed, it becomes unmistakably clear that it would fall foul of the so enunciated principles in the aforesaid judgments of the Apex Court.
11. The complaint registered by the 2nd respondent seeks investigation from the hands of the jurisdictional police under Section 156(3) of the Cr.P.C. for the afore-quoted offences. The relevant narration in the complaint is extracted for the purpose of quick reference:
“ F ªÄð£É J¯Áè PÁgÀ tUÀ ½AzÁV,À F ªÉÄÃ¯É ºÉýzÀ 1 jAzÀ 7£Éà DgÉÆæUÀ¼É®ègÀÄ F ªÉÄÃ¯É ºÉýzÀAvÉ ¥ÀgÀ¸ÀàgÀ ¸ÀAZÀĪÀiÁr zÁR¯ÁwUÀ¼À ¸ÀļÀÄî ¸ÀàµÀÖ£É ªÀiÁrgÀĪÀÅzÀÄ, F ¸ÀļÀÄî ¸ÀÈ¶× ªÀiÁrzÀ zÁR¯ÁwUÀ¼À£ÀÄß ¸ÀļÉîAzÀÄ UÉÆwÛzÀÄÝ CzÀ£ÀÄß §¼À¹PÉÆAqÀÄ ¸ÀPÁðgÀPÉÌ ªÉÆøÀ ºÁUÀÆ ªÀAZÀ£ÉªÀiÁrgÀĪÀÅzÀÄ, C®èzÉ D zÁR¯ÁwUÀ¼À£ÀÄß ªÉÄïÁ¢üPÁjUÀ¼ÀªÀjUÉ ªÀUÁð¬Ä¹ CªÀgÀÄUÀ¼À£ÀÄß CzÀÄ ¤dªÁzÀzÉÝAzÀÄ £ÀA©¹gÀĪÀÅzÀÄ, D zÁR¯ÁwUÀ¼À£ÀÄß DzsÁgÀªÁVlÄÖPÉÆAqÀÄ ¸ÀPÁðgÀªÀ£ÀÄß, ¸ÁªÀðd¤PÀgÀ£ÀÄß £ÀA©¹gÀĪÀÅzÀÄ C¥ÀgÁ¢üPÀ £ÀA©PÉUÉ zÉÆæúÀ ªÀiÁrgÀĪÀÅzÀÄ, C¥ÀgÁ¢üPÀ £ÀA©PÉUÉ zÉÆæúÀ ªÀiÁr
CRL.P No. 8374 of 2021
zÀĪÀåðªÀºÁgÀ ªÀiÁrgÀĪÀÅzÀÄ, PÀvÀðªÀå ¤®ðPÀëvÀ£À ªÀiÁrgÀĪÀÅzÀÄ, ¸ÀPÁðgÀzÀ ¸ÀéwÛUÉ GzÉÝñÀ¥ÀƪÀðPÀªÁV £ÀµÀתÀ£ÀÄßAlÄ ªÀiÁrgÀĪÀÅzÀÄ, CPÀæªÀÄ ¸ÀA¥ÁzÀ£É ªÀiÁrPÉÆArgÀĪÀÅzÀÄ, C¢üPÁgÁwÃvÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹gÀĪÀÅzÀÄ EvÁå¢.. PÀÄjvÁV ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉAiÀÄ 405, 406, 408, 463, 464, 465, 468, 471, 420, 120 © ºÁUÀÆ 34 ªÀÄvÀÄÛ E¤ßvÀgÀ C£ÀéAiÀĪÁUÀĪÀ ¸ÉPÀë£ï CrAiÀÄ°è zÀAr¸À§ºÀÄzÁzÀ C¥ÀgÁzÀUÀ¼À£ÀÄß ªÀiÁrzÀÄÝ D PÁgÀt Qæ«Ä£À¯ï ¥ÉÆæ¹Ãdgï PÉÆÃqï£À ¸ÉPÀë£ï 156(3)gÀrAiÀÄ°è ¸ÀªÀÄUÀæ vÀ¤SÉAiÀÄ£ÀÄß vÀéjvÀªÁV ªÀiÁr ªÀgÀ¢AiÀÄ£ÀÄß ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ°è ºÉýzÀAvÉ vÀªÀÄUÉ ¸ÀÆPÀ۪ɤ¸À§ºÀÄzÁzÀ ¥ÉÆðøï oÁuÉAiÀÄ vÀ¤SÁ¢üPÁjUÀ½UÉ ¸ÀàµÀÖ ¤zÉÃð±À£À ¤ÃqÀ¨ÉÃPÉAzÀÆ, ºÁUÀÆ PÁWÀßd£ïë vÉUÉzÀÄPÉÆAqÀÄ DgÉÆæUÀ¼À£ÀÄß PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ ²PÉëUÉ M¼À¥Àr¸À¨ÉÃPÉAzÀÄ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ°è ¦AiÀiÁðzÀÄzÁgÀgÀÄ PÀ¼ÀPÀ½¬ÄAzÀ ¥Áæyð¹PÉƼÀÄîvÁÛgÉ.
¸À»/- ¸À»/-
¦AiÀiÁðzÀÄzÁgÀgÀ ¥ÀgÀ £ÁåAiÀĪÁ¢ ¦AiÀiÁðzÀÄzÁgÀgÀÄ
¸ÀvÁå¥À£É
F ªÉÄÃ¯É ºÉýzÀ ¥ÁågÀ ¸ÀASÉå 1 jAzÀ 19gÀ°è£À J¯Áè CA±ÀUÀ¼ÀÄ £Á£ÀÄ £ÀA©gÀĪÀ ªÀÄnÖUÉ , £À£ÀUÉ w½¢gÀĪÀ ªÀÄmÉÖUÉ ¸ÀvÀåªÁVgÀĪÀÅzÁV ¥ÀæªÀiÁt ªÀiÁqÀÄvÉÛãÉ.
¸À»/-
¦AiÀiÁðzÀÄzÁgÀgÀÄ.”
(Emphasis added)
The afore-quoted complaint is clearly an application seeking investigation under Section 156(3) of the Cr.P.C. What is noticed from the complaint is that it is verified by a statement – a verification and does not accompany with an affidavit. Non-filing of an affidavit along with the complaint is admitted by the learned counsel appearing for the respondent-complainant.
CRL.P No. 8374 of 2021
Therefore, in the absence of an affidavit accompanying the afore-quoted complaint/application, seeking investigation under Section 156(3) of the Cr.P.C. could not have been maintained as it ran counter to the judgments rendered by the Apex Court (supra).
12. There is a wide difference between a verification and an affidavit. Affidavit is a legally signed and notarized document, whereas, verification is only the statement of the complainant that whatever he has said is true. The accountability of the two are entirely different. Filing a false affidavit can make the complainant accountable and open to legal proceedings, the verification would not. Therefore, the learned Magistrates before whom a complaint is filed under Section 200 of the Cr.P.C. in which investigation under Section 156(3) of Cr.P.C. is sought shall not entertain such complaints, if they are not accompanied by an affidavit as mandated in terms of the judgments of the Apex Court aforequoted in PRIYANKA SRIVASTAVA and BABU VENKATESH (supra).”
In the light of the judgments rendered by the Apex Court as followed by this Court as afore-extracted, the complaint which at the outset is not accompanied by an
CRL.P No. 8374 of 2021
affidavit and further proceedings taken thereto, would become nullity in law.
ORDER
(i) The Criminal Petition is allowed.
(ii) The impugned proceedings in C.C.No.8048/2021 arising out of crime No.16/2019, pending before
CRL.P No. 8374 of 2021
the II Additional Civil Judge & JMFC, Anekal, stands quashed qua the petitioner.
(iii) It is made clear that observations made in the course of this order are only for the purpose of considering the case of the petitioner under Section 482 of the Cr.P.C. This would not bind or influence further proceedings in any other case in the matter or any civil proceedings pending thereto concerning the very transaction.
Sd/JUDGE
NVJ
2 issues framed by the court
Whether the complaint under Section 200 seeking investigation u/s 156(3) Cr.P.C. was maintainable in the absence of a sworn affidavit as mandated by Apex Court decisions.
Whether the matter was purely civil in nature and warranted quashing of criminal proceedings under Section 482 Cr.P.C.
Colour shows how this judgement treated each authority
PRIYANKA SRIVASTAVA VS. STATE OF UTTAR PRADESH AND OTHERSFollowed¶38
(2015) 6 SCC 287 · Who else cites this
BABU VENKATESH AND OTHERS Vs. STATE OF KARNATAKA AND ANOTHERFollowed¶38
(2022) SCC Online SC 200 · Who else cites this
3 provisions across 1 enactments
SRI R.VENKATESH
STATE BY SURYANAGARA POLICE
SRI B.K.SURESH
M.NAGAPRASANNA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
