Madras High Court
Devi vs The State Rep. By on 17 October, 2022
Crl.O.P.No.12797 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2022
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
Crl.O.P.No.12797 of 2021
and
Crl.M.P.No.7077 of 2021
1.Devi
2.Santhosh ... Petitioners/Accused
Vs.
1.The State Rep. by
Inspector of Police,
Ice House Police Station,
Mylapore. … 1st Respondent/Prosecuting Complainant
2.M.Shanthi … 2nd Respondent/Defacto Complainant
PRAYER:
Criminal Original Petition has been filed under Section 482 of Cr.P.C.,
calling for records pertaining to the order dated 08.01.2021 passed in
Crl.M.P.No.13961 of 2019 by the learned II Metropolitan Magistrate Court,
Egmore, Chennai and to set aside the same.
For Petitioner : Mr.D.Dayalan
For Respondent 1 : A.Damodaran
Additional Public Prosecutor
For Respondent 2 : Mr.D.Jai Sankar
Page No.1 of 7
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Crl.O.P.No.12797 of 2021
ORDER
This Criminal Original Petition has been preferred challenging the order
of the learned II Metropolitan Magistrate (FAC), Egmore, Chennai dated
08.01.2021 made in Crl.M.P.No.13961 of 2019.
2. The petitioners are the accused in the complaint filed by the second
respondent in Crl.M.P.No.13961 of 2019 before the learned II Metropolitan
Magistrate (FAC), Egmore, Chennai. seeking for direction under Section
156 (3) of Cr.P.C. In the said complaint, the learned Magistrate has passed
the following order:
“It is a fit case for police investigation. Hence,
complaint is forwarded u/sec.156(3) Cr.P.C to the
Inspector of Police, (Crime), D3 Ice House Police Station,
to investigate the case is accordance with law and to
submit final report on or before 05.03.2021”.
Aggrieved over the said order, the petitioners/accused 1 & 2 have preferred
this Criminal Original Petition.
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Crl.O.P.No.12797 of 2021
3. Heard Mr.D.Dayalan, learned counsel for the petitioners and
Mr.A.Damodaran, learned Additional Public Prosecutor appearing for the 1st
respondent Police.
4. The learned counsel for the petitioners submitted that the learned
Magistrate has passed an order on the complaint filed by the second
respondent under Section 156 (3) of Cr.P.C without insisting upon any
supporting affidavit.
4.1. In support of his argument, he cited the decision of the Hon'ble
Supreme Court held in the case of Priyanka Srivastava and Another Vs.
State of Uttar Pradesh and others reported in 2015 (6) SCC 287. The
relevant portion of the said judgment is extracted hereunder:
“27. 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
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Crl.O.P.No.12797 of 2021
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 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 o settle the scores. We have already
indicated that there has to be prior applications under
Section 154(1) and 154(3) while filing a petition under
Section 156(3) be supported by an affidavit 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 causally 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,
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Crl.O.P.No.12797 of 2021
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.”
5. On a perusal of the above order of the learned Magistrate and the
records, it is seen that the learned Magistrate did not have any occasion to see
whether any duly sworn affidavit was filed by the second respondent seeking
orders under Section 156 (3) Cr.P.C. The order of the learned Magistrate
under Section 156 (3) Cr.P.C should be passed only after seeing an affidavit
and not in a routine fashion. But the order of the learned Magistrate has
already been complied and F.I.R. has been registered. Even if a wrong order
has been complied and FIR has been registered, the same has to be
challenged only in accordance with law. Hence, the petitioners are at liberty
to challenge the F.I.R and seek to quash the F.I.R, if they believe that the
F.I.R has been registered without any prima facie materials.
6. With the above observations, this Criminal Original Petition is
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Crl.O.P.No.12797 of 2021
disposed of. Consequently, connected Criminal Miscellaneous Petition is
closed.
17.10.2022
vm
Index : Yes/No
Speaking Order : Yes/No
R.N.MANJULA,J.
vm
To:
1.Inspector of Police,
Ice House Police Station,
Mylapore.
2.The Public Prosecutor,
Madras High Court,
Chennai.
Crl.O.P.No.12797 of 2021
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.12797 of 2021
17.10.2022
https://www.mhc.tn.gov.in/judis
