Karnataka High Court

Smt. Sarojini Ramachandra Kerur vs State Of Karnataka on 23 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

                             1




             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

           CRIMINAL PETITION NO.101577 OF 2021

BETWEEN:

1.   SMT. SAROJINI RAMACHANDRA KERUR
     AGE: 62 YEARS,
     OCCP: HOUSEWIFE
     R/O.: VIJAYAPUR ASHIRWAD
     NIVAS H.NO.-182
     VIVEK NAGAR (WEST) 586 101
     VIJAYAPUR.

2.   SHRI.VINOD RAMACHANDRA KERUR
     AGE: 40 YEARS
     OCCP: EMPLOYEE
     R/O.1, IDBI BANK
     OPP. B.M.HEBITATE MALI
     GROUND FLOOR-JAYALAKSHMIPURAM,
     MYSURU - 570 001.
     (NOW TRANSFERRED)

3.   SMT. ARCHANA MANJUNATH SHINDE
     AGE: 33 YEARS, OCCP: HOUSEWIFE
     R/O.: VIJAYAPUR ASHIRWAD NIVAS
     H.NO. -182, VIVEK NAGAR (WEST) 586 101
     VIJAYAPUR.
                                              ... PETITIONERS
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
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AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY ATHANI POLICE
       REPRESENTED BY
       SPECIAL PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       DHARWAD.

2.     SMT. VEENA SHANKAR SHINDE
       AGE: 53 YEARS, OCCP.: HOUSEHOLD
       R/O. ATHANI KHB COLONY H.NO.183
       IB ROAD, TQ.: ATHANI DIST.: BELAGAVI
                                              ... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1;
    SRI H.R.DESHPANDE, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C.PRAYING TO QUASH THE ORDER PASSED BY PRINCIPAL
CIVIL JUDGE AND JMFC COURT ATHANI DATED 21.09.2020
THEREBY TAKING COGNIZANCE FOR THE OFFENCES PUNISHABLE
UNDER SECTION 323, 354, 504, 506 R/W 34 OF IPC IN
C.C.NO.2548/2020 AS AGAINST THE PRESENT PETITIONERS
REGISTERED IN CRIME NO.258/2019 OF ATHANI POLICE WHO ARE
ARRAYED AS ACCUSED NO.2 TO 4.

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

                            ORDER

The petitioners call in question order dated 21-09-2020

passed by the Principal Civil Judge & JMFC, Athani in

C.C.No.2548 of 2020 registered for offences punishable under

Sections 323, 354, 504 and 506 r/w Section 34 of the Indian

Penal Code.

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

appearing for petitioners and Sri.Ramesh Chingari, learned High

Court Government Pleader appearing for respondent No.1 and

Sri.H.R.Deshande, learned counsel for respondent No.2.

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

borne out from the pleadings, are as follows:-

The 2nd respondent-complainant is the mother-in-law of

the 3rd petitioner/accused No.4. Accused No.1 who is not before

the Court is the husband of petitioner No.3/accused No.4.

Marriage between accused No.1 and accused No. 3 took place on

27-11-2017. On the allegation that accused No.4 was assaulted

and thrown out of the house, proceedings under Section 12 of

the Protection of Women from Domestic Violence Act, 2005 ('the

Act' for short) was initiated by accused No.4 in Criminal

Miscellaneous No.250 of 2018 in which the learned Magistrate

has directed payment of maintenance from the hands of the

husband to the wife. Things standing thus, the 2nd

respondent/mother-in-law of accused No.4 registers subject

complaint alleging assault and intimidation by the petitioners on

herself and other family members. The complaint that is

registered is a private complaint invoking Section 200 of the

Cr.P.C. Several instances are narrated in the said complaint.

On the said complaint the learned Magistrate directs

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

which, investigation is conducted and a charge sheet is also laid

against the petitioners. It is at that juncture the petitioners have

knocked the doors of this Court.

4. The learned counsel appearing for the petitioners would

contend that as required in terms of the law laid down by the

Apex Court in the case of PRIYANKA SRIVASTAVA, the

complaint ought to have been accompanied by an affidavit of the

complainant. Satisfying compliance with Section 156(1) and (2)

of the Cr.P.C. the learned Magistrate should have directed

investigation into the matter. He would submit that since the

issue goes to the root of the matter, all subsequent proceedings

are contrary to law. He would place reliance upon an order of

this Court in Criminal Petition No.5016 of 2017 decided on

9.01.2018.

5. The learned counsel appearing for 2nd respondent would

vehemently contend that it is because of the torture meted out

by the petitioners, the mother-in-law of accused No.4 had to

independent of the proceedings under the Act. With regard to

non-filing of the affidavit, the learned counsel would submit that

it is a fact that affidavit is not filed.

6. Learned High Court Government Pleader would also toe

the lines of the learned counsel appearing for the 2nd

respondent.

7. I have given my anxious consideration to the

submissions made by the respective learned counsel and

perused the material on record.

8. It is not in dispute that the 2nd respondent registers a

private complaint invoking Section 200 of the Cr.P.C. for

offences punishable under Section 323, 354, 504 and 506 of the

IPC. It is also a matter of fact that what is filed along with the

complaint is statement of verification and not affidavit on oath.

Whether such a complaint could have been entertained and

investigation could have been directed by the learned Magistrate

under Section 156(3) of the Cr.P.C. need not detain this Court

for long or delve deep in to the matter, as the Apex Court in the

case of PRIYANKA SRIVASTAVA AND ANOTHER v. STATE OF

UTTAR PRADESH AND OTHERS1 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

(2015) 6 SCC 287

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 KISHOR PIRAJI KHARAT AND

OTHERS v. RAJESHWAR REDDY KARNATI VENKATA AND

ANOTHER2 has held as follows:

Crl.P.No.5016 of 2017 decided on 9th January 2018

"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.

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

following the judgment in the case of PRIYANKA SRIVASTAVA

(supra) in the case of BABU VENKATESH v. STATE OF

KARNATAKA3 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 Pradesh2 has observed thus:

(2022) SCC Online SC 200

"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 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).

9. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal petition is allowed.

(ii) The order passed by the learned Magistrate dated

21-09-2020 referring the complaint under Section