Sajeeb S., Vs State of Kerala

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2025:KER:27489

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Crl.M.C.No.1237/2019 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE G.GIRISH

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WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947

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CRL.MC NO. 1237 OF 2019

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CC NO.21 OF 2016 BEFORE THE JUDICIAL MAGISTRATE OF FIRST
CLASS, KODUNGALLUR

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PETITIONER/ACCUSED NO.1:

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SAJEEB S., AGED 40 YEARS
S/O. SIRAJJUDDIN, VALAYIL HOUSE, KANNAMBALLY,
KAYAMKULAM, ALAPPUZHA DISTRICT-690502.

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BY ADV SATHEESHMOHANAN

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RESPONDENT/STATE/DEFACTO COMPLAINANT:

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1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, REPRESENTING S.I. OF POLICE,
KODUNGALLUR POLICE STATION, THRISSUR DISTRICT,
PIN-682031.

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2 MRS. AISHABI,
W/O.MOONNAKKA PARAMBIL ABDULLA, AGED 69 YEARS,
MOONNAKKA PARAMBIL HOUSE, CHENTRAPPINNI,
KODUNGALLUR TALUK, THRISSUR-680687.

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BY ADVS.BIJU C ABRAHAM FOR R2

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 THOMAS C.ABRAHAM(K/517/2022)
 BASIL MATHEW(K/000588/2020)
 SMT.SEETHA.S, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
27.03.2025, THE COURT ON 02.04.2025 PASSED THE FOLLOWING:

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O R D E R

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The first accused in C.C.No.21/2016 on the files of the Judicial First Class Magistrate Court, Kodungallur has filed this petition under Section 482 Cr.P.C to quash the proceedings against him in the said case. The prosecution case is that, the petitioner along with his father, criminally trespassed into the house of the second respondent on 25.05.2015 at about 10:30 a.m and inflicted voluntary hurt upon her by pushing her down. It is also alleged that the petitioner verbally abused the second respondent and criminally intimidated her causing death threat by placing a dagger upon her neck. Thus, the petitioner is alleged to have committed the offences punishable under Sections 452, 323,

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506(ii) and 294(b) I.P.C read with Section 34 I.P.C.

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The crime has been registered on the basis of the complaint preferred by the second respondent before the Judicial First Class Magistrate Court, Kodungallur on 21.10.2015, which was forwarded to the S.I of Police, Mathilakam Police Station under Section 156(3) Cr.P.C by the learned Magistrate. After the completion of the investigation, the S.I.of Police, Mathilakam, filed the final report alleging the commission of the aforesaid offences.

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In the present petition, the petitioner would contend that he

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is totally innocent, and that a false case has been foisted against him.

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It is further stated that the registration of the crime in this case is vitiated due to the failure on the part of the learned Magistrate towards ensuring the statutory prerequisites before forwarding the complaint to the police under Section 156(3) Cr.P.C. According to the petitioner, the second respondent who filed the complaint before the learned Magistrate, had not complied with the requirement of Section 154(3) Cr.P.C by sending the complaint in writing by post to the Superintendent of Police Concerned. It is also submitted that the second respondent had not filed the affidavit before the learned Magistrate in compliance with the directions of the Apex Court about the conditions to be fulfilled before invoking Section 156(3) Cr.P.C.

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Heard the learned counsel for the petitioner, the learned counsel for the second respondent and the learned Public Prosecutor representing the State of Kerala.

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The incident involved in this case is alleged to have taken place on 25.05.2015 at the residence of the second respondent. She filed Annexure-A1 complaint before the learned Magistrate in connection

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with the said incident on 21.10.2015. Apart from a vague statement in paragraph No.6 of Annexure-A1 complaint that the Mathilakam Police

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did not take any action so far notwithstanding a complaint preferred on the date of incident, there is absolutely nothing stated by the second respondent in her complaint as to the reason for the delay of about five months in preferring the above complaint before the learned Magistrate. Obviously, the second respondent did not send the complaint in writing to the Superintendent of Police concerned in compliance with the requirements of Section 154(3) Cr.P.C. Nor had the second respondent filed any affidavit before the learned Magistrate stating that she did not get any reliefs though she approached the local police as well as the Superintendent of Police against the crime committed by the petitioner and his father. Thus, it is apparent that the directions of the Hon’ble Supreme Court in Priyanka Srivastava v. State of U.P [(2015) 6 SCC 287] have been flouted in the case on hand. It has been held by the Apex Court in paragraph Nos.30 and 31 of the aforesaid decision as follows:

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“ 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

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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.

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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 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

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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.”

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In a similar case where there was unexplained delay in lodging the complaint before the Magistrate, the Hon’ble Apex Court found that the non-compliance of the guidelines laid down in Priyanka Srivastava (supra) was fatal, and quashed the proceedings holding that it was nothing but an abuse of process of law. The relevant paragraphs in the aforesaid judgment of the Apex Court in Babu Venkatesh v. State of Karnataka [(2022) 5 SCC 639] are extracted hereunder:

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26. This Court has further held that, prior to the filing of a petition under Section 156(3)CrPC, there have to be applications under Sections 154(1) and 154(3)CrPC. This Court emphasises 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)CrPC. Inasmuch as if the affidavit is found to be false, the person would be liable for prosecution in accordance with law.

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27. In the present case, we find that the learned Magistrate while passing the order under Section 156(3)CrPC, has totally failed to consider the law laid down by this Court.

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28. From the perusal of the complaint it can be seen that, the complainant Respondent 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)CrPC. The High Court has also failed to take into consideration the legal position as has been enunciated by this Court in Priyanka Srivastava v. State of U.P. [Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : (2015) 3 SCC (Civ) 294 : (2015) 4 SCC (Cri) 153] , and has dismissed the petitions by merely observing that serious allegations are made in the complaint.

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29. We are, therefore, of the considered view that, continuation of the present proceedings would amount to nothing but an abuse of process of law.”

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In the light of the law laid down by the Hon’ble Supreme Court in Priyanka Srivastava and Babu Venkatesh (supra) on the mandatory requirement of the compliance of Section 154(3) Cr.P.C, and the filing of affidavit before the Magistrate, with the requisite particulars, before resorting to Section 156(3) Cr.P.C, it has to be held that the proceedings in the present case, initiated in violation of the aforesaid directions, is an abuse of process of law. Therefore, the prayer in this petition to quash the proceedings, is fully justified.

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In the result, the petition stands allowed. The proceedings pending before the Judicial First Class Magistrate Court, Kodungallur in

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C.C.No.21/2016, are hereby quashed.

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(Sd/-) G. GIRISH, JUDGE

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jsr

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Crl.M.C.No.1237/2019 9

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APPENDIX OF CRL.MC 1237/2019

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PETITIONER ANNEXURES

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`ANNEXURE A1`	`A CERTIFIED COPY OF COMPLAINT NUMBERED AS` `C.M.P.NO.11571 OF 2015 DATED 21.10.2015.`
`ANNEXURE A2`	`A CERTIFIED COPY OF FIR NO.2517 OF 2015 DATED` `6-11-2015 OF KODUNGALLUR POLICE STATION.`
`ANNEXURE A3`	`A TRUE COPY OF THE STATEMENT DATED 7-11-2015` `OF THE 2ND RESPONDENT.`
`ANNEXURE A4`	`A TRUE COPY OF THE STATEMENT DATED 7-11-2015` `OF ONE MRS.SALMA.`
`ANNEXURE A5`	`A CERTIFIED COPY OF THE FINAL REPORT DATED` `30-11-2015 MADE IN CRIME NO.2517 OF 2015.`
`ANNEXURE A6`	`A TRUE COPY OF PETITION O.P.NO.34 OF 2015` `PENDING BEFORE THE FAMILY COURT, MAVELIKKARA` `DATED 9-1-2015.`
`ANNEXURE A7`	`A TRUE COPY OF THE RECEIPT OF MONEY FOR` `RS.1000/- ISSUED FROM THE FAMILY COURT,` `MAVELIKKARA DATED 23-5-2015.`
`ANNEXURE A8`	`A TRUE COPY OF THE ORDER DATED 4-7-2015,` `PASSED IN C.M.P. NO.2898 OF 2015 IN M.C.NO.58`
	`OF` `2015` `BY` `THE` `JUDICIAL` `FIRST` `CLASS` `MAGISTRATE COURT, KAYAMKULAM.`

Sajeeb S., v. State of Kerala

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Sajeeb S., v. State of Kerala

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