Orissa High Court
J. Srinivas Kumar & Others vs State Of Odisha & Another .... Opposite ... on 9 January, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 4314 of 2023
(An application U/s. 482 of the Code of Criminal Procedure)
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J. Srinivas Kumar & Others .... Petitioners
Mr. M.K. Mohanty, Advocate
-versus-
State of Odisha & another .... Opposite Parties
Mr. B.K. Ragada, AGA
Ms. P. Naidu, Advocate (for O.P No.2)
P R E S E N T:
HONOURALE SHRI JUSTICE CHITTARANJAN DASH
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Date of Judgment: 09.01.2024
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1. Heard learned counsel for the Petitioners and the State.
2. By means of the present application, the Petitioner seeks the
indulgence of this Court to quash the proceeding in G.R. Case No.
697 of 2011 on the files of learned S.D.J.M., Berhampur along with
the order dated 10.07.2014 passed by the learned S.D.J.M.,
Berhampur in G.R. Case No. 697 of 2011.
3. The background facts of the case are that the Opp. Party No. 2
filed complaint case bearing ICC No. 83 of 2011 against present
petitioners in the Court of SDJM, Berhampur in which it has been
alleged that she married to the Petitioner No.1 herein who is the son
of one J. Sareswar Rao and J. Krishna Beni of Visakhapatnam on
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30.09.2009 at Visakhapatnam as per Hindu Vedic Rights and
customs in presence of family members. At the time of marriage the
Opp. Party No.2's father had given an amount of Rs. 5,00,000/-
towards dowry and besides that 15 Tola gold and more than one
Kg. Silver Ornaments and other household articles. After one
month of marriage the mother-in-law and sister-in-law inflicted
torture on the Opp. Party No.2 demanding more dowries. After the
marriage, for first time the Opp. Party No.1 came to the house of
her parents at Berhampur on 01.12.2009 and the in-laws asked Opp.
Party No.2 to bring additional amount of Rs.15,00,000/- towards
dowry. The mother-in law, two Sister-in-laws and Husband of 2nd
Sister-in-law persuaded the father of Opp. Party No.2 for giving an
amount of Rs.15,00,000/- towards additional dowry for purchasing
a house adjoining to the house of the present petitioner in the name
of Opp. Party No.2. However, the demand for the sum of
Rs.15,00,000/-, could not be fulfilled by the father of Opp. Party
No.2. The Opp. Party No.2 went to Visakhapatnam on 23.01.2010
and thereafter they once again started inflicting torture both
physically and mentally. During her stay in Visakhapatnam on
09.03.2010 it was found that the Opp. Party No.2 became pregnant.
As her husband compelled for abortion and the Opp. Party No.2 did
not agree for the same, her husband physically assaulted her and
attempted to kill her by strangulation. The said fact was intimated
by Opp. Party No.2 to her father. In any case for the ill treatment of
the in-laws, the Opp.Party wife lodged a complaint before the
Mahila P.S. Berhampur on 12.04.2011 but the said case was not
registered for which she filed the complaint petition in the court of
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learned SDJM, Berhampur which was registered as ICC No. 83 of
2011.
4. It is submitted by learned counsel for the Petitioner that the
complaint Petition is only appended with a verification and is not
supported by any affidavit, whereas the learned S.D.J.M.,
Berhampur directed the OIC of Gosaninuagaon P.S. to investigate
the matter U/s. 156(3) Cr.P.C and on the basis of the said direction
the concerned P.S registered the FIR vide Gosaninuagaon P.S Case
No. 59(13) of 2011 which corresponds to the G.R. Case No. 697 of
2011 on the files of the S.D.J.M., Berhampur. It is further submitted
by learned counsel for the Petitioner that in the meanwhile the
charge sheet was submitted and cognizance has been taken. It is
also submitted by learned counsel for the Petitioner that the
Criminal Proceeding in G.R. Case No.697 of 2011 as well as the
order of cognizance under Annexure-3 is not in conformity with
law and as such is liable to be quashed.
5. The Apex Court in the matter of Priyanka Srivastava & another
Vrs. State of Uttar Pradesh & others reported in (2015) 6 Supreme
Court cases 287 held as follows:-
XXX XXX XXX
A stage has come in this country where 156(3) CrPC
applications must be supported by an affidavit duly
sworn by the applicant who seeks invocation of the
jurisdiction of the Magistrate under the said provision.
This affidavit can make the applicant more responsible.
There is compulsion to say so as such kind of
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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. The warrant
for giving a direction that an application under Section
156(3) CrPC 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) Cr.P.C
6. The learned counsel relied on the decisions in the matter of Anil
Kumar Agarwal @ Mandothia Vrs. State of Odisha and another
reported in 2023 (1) OLR-389, wherein this Court has held as
follows-
3. Mr. Mohit Agarwal, learned counsel appearing for the
Petitioner places reliance on the decision in Priyanka
Srivastava v. State of Uttar Pradesh (2015) 6 SCC 287
to urge that the complaint, even if it were to be treated
as an application under Section 156(3) Cr.P.C, had to be
supported by an affidavit. As explained by the Supreme
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Court, this was a safeguard against abuse of the power
thereunder.
4. Despite notice having been served, none appears on
behalf of Opposite Party No.2.
5. Indeed, it is seen that there was no denial of the
averments in the petition that the complaint filed by
Opposite Party No.2 was not supported by an affidavit.
In fact, there was no prayer for treating it as an
application under Section 156(3) Cr.P.C. Therefore, the
order dated 31st October, 2016 of the S.D.J.M., Angul
referring the complaint under Section 156(3) Cr.P.C. Jo
the PS Angul for registration of the FIR was itself
beyond jurisdiction.
6. Assuming that such a complaint could be treated as an
application Section 156(3) Cr.P.C. then as explained by
the Supreme Court in Priyanka Srivastava (supra), it had
to be supported by an affidavit which obviously was not.
The legal positions as explained by the Supreme Court
in the aforementioned case are as under:
"29. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A
Court of law is involved. It is not the police taking steps
at the stage of Section 154 of the Code. A litigant at his
own whim cannot invoke the authority of the
Magistrate. A principled and really grieved citizen with
clean hands must have free access to invoke the said
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power. It protects the citizens but when pervert
litigations takes this route to harass their fellow citizens,
efforts are to be made to scuttle and curb the same. 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
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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 v. State of U.P. (2014) 2
SCC 1 are being filed. That apart, the learned Magistrate
would also be aware of the delay in lodging of the FIR."
7. Indeed, in the present case, in absence of an affidavit
in support of a complaint, the learned S.D.J.M., Angul
ought not to have entertained it at all much less passed
an order under Section 156(3) Cr.P.C. requiring the P.S.
Angul to register it as an FIR. Consequently, the
aforementioned order dated 31st October, 2016 of the
learned S.D.J.M., Angul in 1CC No. 187 of 2016 and
the consequential Angul P.S. Case No.625 of 2016 dated
3rd December, 2016 are hereby quashed.
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7. Having regard to the aforesaid discussion by the Apex Court as well
as the coordinate Bench of this Court, it is no more res integra that the
complaint filed by the Complainant ought to have appended with an
affidavit so as to ensure that the averments made therein are genuine.
Further, the truthfulness and genunity of the allegations as well as the
veracity of the allegations made in the complaint can be assured and
would no way prove abortive not only in the context of the case but
would not be prejudicial to the interest of the accused. In the instant
case, the complaint is simply appended with a verification and is not
supported by affidavit and whereas the cognizance has been taken by
the learned court below without being alive of the same that has
already been set at rest as of now and as such cannot be sustained in
the eye of law. The further proceeding in G.R. Case No. 697 of 2011
corresponding to Gosaninuagaon P.S Case No. 59(13) of 2011 on the
files of the S.D.J.M., Berhampur stands quashed.
8. The CRLMC is accordingly disposed of.
(Chittaranjan Dash)
Judge
Bijay
Location: HIGH COURT OF ORISSA
