Petitioner accused of offences u/s 354 IPC challenged investigation initiation. Court held that while affidavit is preferred, mere non-filing does not warrant quash if magistrate exercised application of mind given incident within court premises.
Criminal Miscellaneous Case dismissed; investigation allowed to proceed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940
Crl.MC.No. 5292 of 2018
CRIME NO.747/2018 OF Alathur Police Station , Palakkad
PETITIONER/ACCUSED:
MOHANAN,
AGED 51 YEARS, S/O.KUNJU, NOCHIPARAMBU HOUSE, ANAMARI, ERATTAKKULAM, P.O., ALATHUR, PALAKKAD.
BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/DEFACTO COMPLAINANT & STATE:
AGED 30 YEARS, W/O.PARAMESWARAN, PROCESS SERVOR, MUNSIFF COURT, ALATHUR, PALAKKAD-678541
2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.
OTHER PRESENT:
SREEJA V PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON 26/10/2018 PASSED THE FOLLOWING:
O R D E R
The petitioner herein is the sole accused in Crime No.747/2012
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of Alathur Police station for offences punishable under sections 448 and 354 IPC.
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further proceedings.
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contended that, the Supreme Court had observed that applications under section 156(3) Cr.P.C. shall be supported by an affidavit duly sworn by applicant who seeks invocation of the jurisdiction. It was held that, affidavit makes application more responsible. This was intended to ensure that, complaints are not made in a routine manner only to harass certain persons. Learned counsel further relied on the decision in Chandra Kishor Narad Kumar and Others v. State of Bihar and Another(2018 KHC 3445), wherein the Patna High Court had observed that, learned Magistrate had mechanically referred the complaint to the police for investigation under section 156(3) of Cr.P.C.and consequently the FIR was liable to be quashed.
8.In Devi Dut v. State of Rajasthan and Another (2017 KHC 5633), Rajasthan High Court had held that no magistrate should sent the complaint to the police for lodging FIR without ensuring the existence of prima facie case.
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mechanical forwarding of the complaint is liable to be interfered with. The Apex Court in its decision has made filing of the affidavit along with the complaint essential to make the complainant more responsible. However, if the circumstances and facts of the case eminently indicates that, the Magistrate was justified in the facts and circumstances and that records indicate that there is proper application of mind, there is no requirement to interfere.
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Accordingly, Crl.M.C.is dismissed reserving the right of the
petitioner herein to raise his defence at the appropriate stage.
Sd/-
SUNIL THOMAS
JUDGE
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APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A- COPY OF THE FIR NO.747/2018 OF ALATHUR POLICE STATION, PALAKKAD ALONG WITH COPY OF THE COMPLAINT DATED 1/8/2018 ISSUED UNDER RTI ACT.
ANNEXURE B- TRUE COPY OF THE COMPLAINT DATED 29/7/2018 PREFERRED BY THE 1ST RESPONDENT BEFORE THE ALATHUR POLICE STATION.
2 issues framed by the court
Whether criminal proceedings should be quashed due to lack of affidavit supporting the Section 156(3) Cr.P.C. complaint.
Whether the Magistrate mechanically forwarded the complaint without application of mind warranting quash relief.
Colour shows how this judgement treated each authority
Priyanka Srivastava and Another v. State of U.P. and OthersReferred¶31
Priyanka Srivastava and Another v. State of U.P. and Others (2015 KHC 4242)
Chandra Kishor Narad Kumar and Others v. State of Bihar and AnotherDistinguished¶34
Chandra Kishor Narad Kumar and Others v. State of Bihar and Another (2018 KHC 3445)
Devi Dut v. State of Rajasthan and AnotherDistinguished¶35
Devi Dut v. State of Rajasthan and Another (2017 KHC 5633)
Mahendra Kumar Jalan and Others v. State of West Bengal and AnotherDistinguished¶36
Mahendra Kumar Jalan and Others v. State of West Bengal and Another (2017 KHC 5469)
2 provisions across 2 enactments
MOHANAN
SUDHALATHA
STATE OF KERALA
SUNIL THOMAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
SUNIL THOMAS
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