Karnataka High Court

Mr.Liyakatali Rafiyuddin Attar vs State Of Karnataka on 22 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

                              1




              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

         DATED THIS THE 22ND DAY OF FEBRUARY, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

             CRIMINAL PETITION NO.100495 OF 2021


BETWEEN:

MR.LIYAKATALI RAFIYUDDIN ATTAR
AGE 45 YEARS,
OCC.: ADVOCATE,
R/O BHAGWAN GALLI,
NIPANI,
DIST.: BELAGAVI.
                                               ... PETITIONER
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)


AND:

1.     STATE OF KARNATAKA
       BY BASAWESHWAR CHOWK POLICE-NIPANI,
       REPRESENTED BY
       STATE PUBLIC PROSECUTOR,
       HIGH COURT BUILDING,
       DHARWAD.

2.     RAVASO @ RAVASAHEB BHIMA JADHAV
       AGE 67 YEARS,
       OCC.: RETIRED MILITARYMAN,
       R/O LAXMI NAGAR,
       KOGANOLLI ROAD,
       SULAKAD,
       TQ KAGAL-416216,
                                 2




     DIST.: KOLHAPUR,
     MAHARASHTRA.
                                              ... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1;
    SRI S.B.DEYANNAVAR, ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 31/01/2020
PASSED PRL. CIVIL JUDGE AND JMFC, NIPANI IN P.C.NO.1/2020
THEREBY DIRECTING THE RESPONDENT NO.1 POLICE U/S 156(3)
OF CR.P.C. TO SUBMIT THE REPORT, REGISTERED FOR
OFFENCES U/S 109, 120B, 177, 193, 406, 417, 419, 468 R/W 34 OF
IPC, IN SO FAR AS PETITIONER IS CONCERNED.

     THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

The petitioner is before this Court calling in question an

order of reference dated 31-01-2020 made by the Principal Civil

Judge & JMFC, Nipani in P.C.No.1 of 2020 for investigation

under Section 156(3) of the Cr.P.C.

2. Heard Sri Neelendra D. Gunde, learned counsel for the

petitioner, Sri Ramesh Chigari, learned High Court Government

Pleader for respondent No.1 and Sri S.B. Deyannavar, learned

counsel for respondent No.2 and perused the material on record.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The 2nd respondent and accused Nos.1 and 2 are brothers

and are in joint possession and cultivation of land bearing

No.136/1 of Kognoli Village, Chikodi Taluk. Accused Nos.3 and

4 are farm labourers who are not before the Court. The 2nd

respondent has initiated certain proceedings in RCS No.85 of

2018 before the Principal Civil Judge at Kagal, on the ground

that he has been denied partition. Apart from this proceeding,

the complainant / respondent No.2 registers the subject

complaint before the learned Magistrate invoking Section 200 of

the Cr.P.C. for offences punishable under Sections 109, 120B,

177, 193, 406, 417, 419, 468 r/w. 34 of the IPC. What is called

in question in the case at hand is, the very reference of the

private complaint for its investigation under Section 156(3) of

the Cr.P.C. as could be found in the shara noted on the

complaint itself. Though such orders of directing investigation

under Section 156 (3) of the Cr.P.C. should bear application of

mind, the issue in the case at hand is with regard to the

complaint not accompanied with an affidavit, which is

mandatory in the light of the law laid down by the Apex Court in

the case of PRIYANKA SRIVASTAVA VS. STATE OF UTTAR

PRADESH AND OTHERS reported in (2015) 6 SCC 287, which

is followed subsequently in the case of BABU VENKATESH AND

OTHERS Vs. STATE OF KARNATAKA AND ANOTHER reported

in (2022) SCC Online SC 200. Therefore, consideration of facts

or merits of the matter would not arise as the threshold issue

goes to the root of the matter.

4. The Apex Court in the case of PRIYANKA SRIVASTAVA

(supra), has held as follows:

"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 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."

Following the said judgment of the Apex Court, a Co-ordinate

Bench of this Court in SRI KISOR PIRAJI KHARAT AND

OTHERS v. RAJESHWAR REDDY KARNATI VENKATA AND

ANOTHER in Criminal Petition No.5016 of 2017 decided on

9th January, 2018, has held as follows:

"2.Respondent No.1 has filed a private complaint in PCR No.1547/2016. The learned Magistrate has referred the complaint for investigation under Section 156(3) of Cr.P.C. to the jurisdictional police for investigation and report. The said order of referring the complaint to the police is called in question before the Court. Though the learned counsel has also challenged the reference order on various other grounds, in my opinion the order is not technically sound. In view of the decision rendered by the Apex Court reported in (2015)6 SCC 287 in the case of PRIYANKA SRIVASTAVA AND ANOTHER Vs. STATE OF UTTAR PRADESH AND OTHERS, the Apex Court has categorically observed at paragraphs 30 and 31 in the following manner:

"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 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 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 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

3. In view of the above said dictum of the Apex Court, it is clear that the complainant has to file an affidavit about the efforts made by him under Sections 154(1) and 154(3) of Cr.P.C. and also the affidavit should contain the truthfulness and the contents of the complaint. In the absence of such affidavit being filed, the Magistrate gets no jurisdiction to refer the private complaint for investigation under Section 156(3) of Cr.P.C.

4. The learned counsel has strongly contended before the Court that even considering the entire contents of the complaint there is no allegations which constitute any offence under the provisions of Sections 403, 406, 415 r/w 34 of IPC. I do not want to express anything so far as this aspect is concerned, because it is the jurisdictional Magistrate, who has to apply his judicious mind to find out whether there are any allegations in the complaint which constitute any offence against the petitioners and thereafter pass appropriate orders in accordance with law. The Magistrate has to go through the decision noted above and can take appropriate action in accordance with law. Therefore, the reference order is liable to be quashed and consequently registration of the First Information Report and all further proceedings therein are required to be quashed. Hence, the following

ORDER

The petition is allowed. The order passed by the learned Magistrate dated 23.2.2016 referring the complaint under Section 156(3) of Cr.P.C. and registration of First Information Report in Crime No.63/2017 and all further investigation therein are hereby quashed. The Magistrate can pass appropriate orders in accordance with law on the complaint lodged by respondent No.1 taking into consideration the observation of the Hon'ble Apex Court in the above said case."

It is germane to notice that the Apex Court in a recent judgment

in the case of BABU VENKATESH (supra) following the judgment

in the case of PRIYANKA SRIVASTAVA (supra), has 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 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 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 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 dismissed the petitions by merely

observing that serious allegations are made in the complaint."

Therefore, in the light of the judgments rendered by the Apex

Court (supra) and the admitted fact that the complaint did not

accompany with an affidavit, would become unentertainable by

the learned Magistrate. Directing an investigation under Section

156(3) of the Cr.P.C. would also be contrary to what the Apex

Court has held in the cases of PRIYANKA SRIVASTAVA and

BABU VENKATESH (supra).

6. For the aforesaid reason, I pass the following:

ORDER

(i) Criminal petition is allowed.

(ii) The order passed by the learned Magistrate dated