In a decisive ruling on procedural compliance under criminal law, the Orissa High Court has held that omission to file a sworn affidavit in support of a complaint under Section 156(3) of the Code of Criminal Procedure is a fatal defect that strikes at the very root of the proceedings, rendering them a nullity.
Justice Chittaranjan Dash, setting aside concurrent orders of the Sub-Divisional Judicial Magistrate and the Additional Sessions Judge at Sundargarh, quashed the criminal case against the petitioner and observed, “The affidavit acts as a self-certifying threshold, discouraging frivolous or mala fide applications and making the complainant personally answerable for the truth of the allegations made… Allowing such proceedings to continue despite this omission would render the mandatory safeguards illusory, and would result in prejudice to the accused.”
The case stemmed from a complaint filed in 2015 by the Branch Manager of Kotak Mahindra Bank before the SDJM, seeking directions under Section 156(3) CrPC for registration of an FIR and investigation. The Magistrate directed the police to register the FIR, leading to the petitioner being charge-sheeted for offences under Sections 406, 420, 201, and 34 IPC. At the stage of framing of charges, the petitioner sought discharge under Section 239 CrPC, arguing that the complaint was not accompanied by the mandatory affidavit prescribed in Priyanka Srivastava v. State of U.P., a safeguard to prevent abuse of process. Both the trial court and revisional court rejected the plea, terming the omission a mere technicality.
The Court relied on the recent Supreme Court decision in S.N. Vijayalakshmi v. State of Karnataka, which reaffirmed that the directions issued in Priyanka Srivastava v. State of U.P. are mandatory, operate prospectively, and that non-filing of the affidavit is a curable defect only if rectified before the Magistrate passes any substantive order.
Since no affidavit had been submitted at any stage before the Magistrate directed registration of the FIR, the Court concluded that the omission was incurable in the present matter, vitiating the very jurisdiction to issue such a direction.
Accordingly, the petition was allowed, the orders of the subordinate courts and all consequential proceedings were quashed, with liberty reserved to the complainant to pursue the matter afresh in strict compliance with the prescribed procedural safeguards.
Case Title: Hari Shankar Patnaik Vs. State of Orissa and others
Case No.: CRLMP No. 1448 of 2024
Coram: Justice Chittaranjan Dash
Advocate for Petitioner: Adv. D.K. Mohapatra
Advocate for Respondent: ASC A.K. Apat
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