Shivannegowda vs State Of Karnataka
2022 Latest Caselaw 4698 Kant

                                1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 14TH DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         CRIMINAL PETITION No.9139 OF 2021

BETWEEN

1.    SHIVANNEGOWDA
      S/O MARIGOWDA
      AGED ABOUT 62 YEARS

2.    RAMYA A. S.
      W/O A. S. RAGHU
      AGED ABOUT 29 YEARS

BOTH ARE R/AT
ANANDOORU VILLAGE
RAMANATHAPURA HOBLI
ARKALGUD TALUK
HASSAN DISTRICT - 45
                                    ... PETITIONERS

[BY SRI. PRATHEEP K.C., ADV.]

AND

1.    STATE OF KARNATAKA
      BY KONANUR POLICE STATION
      HASSAN DISTRICT
      REP. BY SPP
      HIGH COURT BUILDING
      BANGALORE -01
                               2



2.   KANTHEGOWDA
     S/O LATE KARIGOWDA
     AGED ABOUT 62 YEARS
     R/AT SOMPURA VILLAGE
     RAMANATHAPURA HOBLI
     ARKALGUD TALUK
     HASSAN DISTRICT - 45
                                        ... RESPONDENTS

[BY SRI.VIJAY KUMAR T., ADV. FOR R2;
    SRI. SHANKAR H.S., HCGP FOR R1]

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE
CRIMINAL PROCEEDINGS IN PCR NO.8/2021 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC AT
ARKALGUD AND REGISTRATION OF FIR IN CR.NO.21/2021
U/S.191, 193, 197, 198, 420 OF IPC ON THE FILE OF
KONANUR POLICE STATION, HASSAN DISTRICT AND
PENDING ON THE FILE OF THE ADDITIONAL CIVIL JUDGE
(JR.DN.) AND J.M.F.C., AT ARKALGUD.

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

                        ORDER

The petitioners are before this Court calling in

question the proceedings in Crime No.21/2021, arising

out of P.C.R.No.8/2021 on the file of the Additional Civil

(Jr.Dn.) and J.M.F.C., Court, Arakalgud.

2. Heard Sri.Pratheep K.C., learned counsel

appearing for the petitioners, Sri.Vijay Kumar T.,

learned counsel for respondent No.2 and

Sri.Shankar H.S., learned HCGP for respondent No.1.

3. The second respondent is the complainant,

who registers a private complaint invoking Section 200

of Cr.P.C., on 11.01.2021 alleging offences under

Sections 191, 193, 197, 198 and 420 of IPC against the

petitioners.

4. The petitioners have knocked the doors of

this Court, the moment the FIR is registered against the

petitioners. Prior to registration of the complaint, the

mandatory obligation on the part of the complainant in

terms of Sections 154(1) and 154(3) of Cr.P.C. No overt

act to register a complaint against the petitioners before

the Police is even indicated in the complaint. The

complaint is also not supported by an affidavit. All these

factors would fall foul of the judgment rendered by the

Apex Court in the case of Priyanka Srivastava and

another vs. State of Uttar Pradesh and others reported

in (2015) 6 SCC 287 as followed in the case of Babu

Venkatesh and Others vs. State of Karnataka and

another reported in 2022 SCC Online SC 200, wherein it

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."

5. Therefore, the petition deserves to succeed

on this short ground of it being in violation of Priyanka

Srivastava and Babu Venkatesh (supra).

6. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. Proceedings in Crime No.21/2021 pending before the Additional Civil Judge and J.M.F.C. (Jr. Dn.) at Arkalgud, stands quashed.

iii. The matter is remitted back to the hands of the learned Magistrate to apply its mind and then pass an appropriate orders in accordance with law.

Sd/-

JUDGE

KG