Application Under Section 482 Of ... vs Advocate(S) Appeared In This Case
2023 Latest Caselaw 3874 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK
                        CRLMC No.3005 of 2022

        Application under Section 482 of Criminal Procedure Code,
        1973.
                            ---------------
        Pradeep Kumar Nath and another .....               Petitioners

                                  -Versus-

        State of Odisha and another      .......           Opp.Parties

        Advocate(s) appeared in this case:-
        _________________________________________________________
              For Petitioners     : Mr. S.S. Satapathy,
                                    S. Mohanty &
                                    S.P. Panda,
                                          Advocates.
               For Opp. Parties   : Mr. N. Pratap,
                                    [Additional Standing Counsel]
        _________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                JUDGMENT

20th April, 2023

SASHIKANTA MISHRA, J. The petitioners are accused in G.R.

Case No. 470 of 2022 pending in the Court of learned

S.D.J.M, Hindol registered under Sections

498(A)/323/506/34 of IPC read with Section 4 of the D.P.

Act.

2. In the present application filed under Section 482 of

Cr.P.C, they pray for quashing the aforementioned criminal

proceeding.

The petitioners' case is that the petitioner No.1 was

married to opposite party no.2 on 13.12.2021 as per Hindu

rights and customs. They lived together at village

Kankadasoda for four days. At the time of marriage, the

parents of the complainant had given some household

articles along with Rs. 1,30,000/-as cash as per their

demand. It is alleged that the marriage was finalized in a

hasty manner during the COVID-19 Pandemic and taking

advantage of the situation the family members of the bride

provided false and incorrect particulars regarding her age,

education, character etc. The opposite party No.2 intimated

that she was not interested in the marriage and

complained of discomfort in the house of the petitioners.

She also threatened to lodge various cases against the

petitioner No.1. On 19.04.2022, while the petitioner No.1

had gone to another place to attend the marriage of one of

his relations, the opposite party No.2 called her mother

who took her away with her on 23.04.2022. The petitioners

obtained information on the RTI Act from the Headmaster

of Baunshapokhari G.P. High School, Sundarpal and found

that the date of birth of the opposite party No.2 being

02.01.2004, she had not attained the age of majority at the

time of marriage. In such view of the matter, the petitioners

were constrained to file an application under Section 12 of

the Hindu Marriage Act, 1955 vide MAT Case No. 22 of

2022 for a decree declaring his marriage with the opposite

Party No.2 as null and void. In the said case, the opposite

party No.2 and her parents having appeared, the same is

pending for adjudication. Subsequently, the opposite party

No.2 filed a complaint case alleging that she was subjected

to physical and mental torture by her husband and

mother-in-law in connection with demand for dowry of

Rs.1,00,000/- in cash and gold chain. She further alleged

that she was assaulted by the accused persons who tried to

kill her as a result of which, she sent word to her mother

who came and rescued her. On such basis, the 1.C.C. case

was filed purporting to be a petition under Section 156(3) of

Cr.P.C. with prayer to direct the IIC of Hindol P.S. for

registration and investigation. Learned S.D.J.M., Hindol

forwarded the petition to the IIC of Hindol P.S. with

direction to register the same and to conduct investigation.

Pursuant to such direction, Hindol P.S. Case No.141 of

2022 was registered for the offences as aforesaid.

3. Heard Mr. S.S. Satpathy, learned counsel for the

petitioner and Mr. Nikhil Pratap, learned Additional

Standing Counsel for the State. Be it noted that despite

service of notice, there was no appearance from the side of

the opposite party No.2.

4. Mr. Satpathy would argue that the entire proceeding

initiated on the basis of the petition under Section 156(3) of

Cr.P.C. is a nullity inasmuch as the complainant-opposite

party No.2 has not taken recourse to the provision under

Sections 154(1) and 154(3) of Cr.P.C. before filing the same.

Mr. Satpathy submits that as per the settled position of law

unless the mandatory provisions under Sections 154(1)

and 154 (3) of Cr.P.C. are complied with no direction can

be issued by the Magistrate under Section 156(3) of Cr.P.C.

to the police to register the FIR and to investigate upon the

same. Mr. Satpathy has cited several decisions in support

of his contentions which would be referred to at the

appropriate place.

5. Mr. Nikhil Pratap, on the other hand, argues that law

requires that before invoking the provision under Sections

156(3) of Cr.P.C., the complainant should first make an

attempt to lodge an FIR and if it does not yield any result

then he/she should approach the Superintendent of Police

in writing. It is only if the above efforts do not yield any

result that he/she can approach the Magistrate with prayer

to exercise power under Section 156(3) of Cr.P.C. In the

instant case, a bare perusal of the complaint/petition

under Section 156(3) of Cr.P.C. would reveal that under

column-6, the complainant has clearly stated that she had

given the information about the occurrence in the police

station but police advise her to take shelter before the

Court. This, according to Mr. Pratap, fulfills the

requirement as per the settled position of law and

therefore, no illegality can be said to have been committed

by the Magistrate by directing the police to register the FIR

and to investigate the same.

6. This Court finds at the outset that the application

under Section 482 of Cr.P.C. was filed on entirely different

grounds and the contentions referred to hereinbefore were

raised only at the time of hearing. Nevertheless, the issue

so raised being a question of law it would not be improper

for this Court to consider the same.

7. Learned counsel for the petitioners has essentially

contended that the complaint does not disclose whether

any FIR was attempted to be lodged at the police station

and if at all the same was not accepted then, whether such

information was submitted before the Superintendent of

Police in writing as required under Section 154(3) of Cr.P.C.

Mr. Satpathy has referred to the decisions of the Apex

Court in the case of Priyanka Srivastava and another vs.

State of Uttar Pradesh and others, reported in (2015) AIR

SCW 205, Babu Venkatesh and others vs. State of

Karnataka and another, reported in 2022 LiveLaw (SC)

181 and Sakiri Vasu vs. State of UP and others, reported

in 2008 (I) OLR (SC) 105. Mr. Satpathy has also relied

upon a decision of Patna High Court in the case of Supriya

Devi vs. The State of Bihar and others, reported in

(2020) 79 OCR (Patna) 259.

8. In Sakiri Vasu (supra), the Apex Court observed as

follows:

"25. We have elaborated on the above matter because we often find that when someone has a grievance that his FIR has not been registered at the police station and/or a proper investigation is not being done by the police, he rushes to the High Court to file a writ petition or a petition under Section 482 Cr.P.C. We are of the opinion that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternating remedy, firstly under Section 154(3) and Section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned Magistrate under Section 156(3)."

In Priyanka Srivastava (supra) the apex Court held

as follows:-

"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 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 to 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). 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 the application 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 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."

The aforequoted observations in Priyanka Srivastava

(supra) were referred to by the Apex Court recently in Babu

Venkatesh and others (supra) by observing as follows:-

"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."

Thus, what emerges from a conspectus of the above

cited decisions of the Apex court is, it is not permissible for

a person to straightway approached the Magistrate by filing

a petition under Section 156(3) of Cr.P.C. There has to be

prior application under Section 154(1) and 154(3) of

Cr.P.C. and such fact has to be stated clearly in the

petition along with necessary documents supported by an

affidavit. As held by the Apex Court, this safe guard is built

in to ensure that false or frivolous cases are not filed and

not taken cognizance of by the Magistrate. Relying upon

the judgment cited above a single judge of Patna High

Court in the case of Supriya Devi (supra) also took the

similar view.

9. A perusal of the petition under Section 156(3) of

Cr.P.C. filed by the opposite party No.2 reveals that the

complainant claimes to have submitted information to the

police but police advised her to take shelter before the

Court. Firstly, the police is not vested with power of

advising any person to approach the Court. Secondly, there

is nothing in the petition to show that any application was

made before the Superintendent of Police under Section

154(3) Cr.P.C. Though it is stated that information was

given at the Police Station yet, no document in such regard

is appended to the petition. The affidavit appended to the

petition is general in nature and is in the relation to the

averments made in the petition which, as already stated do

not reveal compliance of Sections 154(1) and 154(3) of

Cr.P.C. In view of the law laid down by the Apex Court, the

action of the learned S.D.J.M. in sending the petition to the

IIC for registration and investigation mechanically cannot

be sustained. Evidently, learned S.D.J.M. has not taken

pair to ascertain if the provision of Section 154(1) and

154(3) of Cr.P.C. had been complied with. Moreover,

learned S.D.J.M. appears to have been oblivious of the law

laid down by the Apex Court in the case of Priyanka

Srivastava (supra). To such extent therefore, the petition

under Section 156(3) Cr.P.C. could not have been

entertained by learned S.D.J.M. much less forwarded to the

police for registration and investigation. It must be kept in

mind that the petition filed in the form of a complaint is not

in the nature of a private complaint within the meaning of

Section 200 of Cr.P.C..

10. For the foregoing reasons therefore, this Court has no

hesitation in holding that the criminal proceeding initiated

on the basis of the petition under Section 156(3) of Cr.P.C,

if allowed to continue would amount to an abuse of the

process of the Court being contrary to the law laid down by

the Apex Court. Resultantly, the CRLMC is allowed. The

criminal proceeding in G.R. Case No. 470 of 2022 before

learned S.D.J.M, Hindol is hereby quashed. However, it

shall still be open to the complainant-Opposite Party No.2

to approach the appropriate forum, if so advised, to seek

redress in accordance with law.

..................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 20th April, 2023/ B.C. Tudu, Sr. Steno