Orissa High Court
Hari Shankar Patnaik vs State Of Orissa And Others .... Opp. ... on 6 August, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMP No. 1448 of 2024
Hari Shankar Patnaik .... Petitioner
Mr. D.K. Mohapatra, Advocate
-versus-
State of Orissa and others .... Opp. Parties
Mr. A.K. Apat, ASC
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 06.08.2025
Chittaranjan Dash, J.
1. By means of this application, the Petitioner seeks
indulgence of this Court praying to quash the judgment dated
27.07.2024 passed in Criminal Revision No.5/01 of 2024 by the
learned Additional Sessions Judge, Sundargarh wherein the learned
court confirmed the order dated 01.05.2024 passed by the learned
S.D.J.M., Sundargarh in G.R. Case No.696 of 2015.
2. The background facts of the case are that Opposite Party
No. 2, i.e., the Branch Manager of Kotak Mahindra Bank Ltd., filed
a complaint before the learned S.D.J.M., Sundargarh, registered as
1CC No. 126 of 2015, praying for cognizance to be taken under
Section 156(3) Cr.P.C., and for a direction to the police to register
an FIR and investigate the matter. The learned S.D.J.M.,
Sundargarh, pursuant to the said complaint, directed the Town P.S.,
Sundargarh, to register the FIR and conduct an investigation.
Accordingly, the IIC, Town P.S., registered the FIR, took up the
investigation, and upon its completion, submitted the charge sheet
against the Petitioner and another, implicating them in offences
under Sections 406/420/201/34 IPC.
3. The learned counsel for the Petitioner, while assailing the
impugned order, respectfully submitted that the very foundation of
the criminal proceeding initiated against the Petitioner is vitiated on
account of non-compliance with the mandatory procedural
requirement laid down by the Hon'ble Supreme Court in Priyanka
Srivastava vs. State of U.P. and Others, reported in (2015) 6 SCC
287. It was contended that the complaint filed by Opposite Party
No. 2 under Section 156(3) of the Cr.P.C. before the learned
S.D.J.M., Sundargarh, was not accompanied by an affidavit of the
complainant as mandated by the Apex Court. The said affidavit is
not a mere formality but a statutory safeguard to prevent abuse of
the criminal process and to ensure accountability of the
complainant. In the absence of such a supporting affidavit, the
complaint is not maintainable in the eyes of law and any direction
by the Magistrate to register an FIR based thereon is without
jurisdiction. The learned counsel therefore submitted that the
proceedings initiated on the basis of such a procedurally defective
complaint are liable to be quashed, and the impugned order
rejecting the Petitioner's prayer for discharge is unsustainable in
law.
4. Mr. Apat, learned Additional Standing Counsel for the
State, opposing the Petitioner's challenge, submitted that the
objections raised regarding the absence of an affidavit are more of a
technical nature and do not go to the root of the matter. It was
argued that even if there was any lapse in procedural compliance at
the initial stage, it does not automatically invalidate the entire
process, especially when the investigation has already been
completed and a charge sheet has been filed. Mr. Apat pointed out
that the Magistrate has taken cognizance after considering the
available materials, which disclose sufficient grounds to proceed
against the accused and the trial court's order rejecting the
discharge petition is reasoned and based on the merits of the case,
and the revisional court has rightly declined to interfere. He
contended that the focus at this stage, should not be on minor
technicalities but on whether there is enough material to justify a
trial.
5. The learned court, having taken cognizance of the offences,
posted the case for framing of charge. Instead of facing the charge,
the Petitioner moved the learned court by filing a petition under
Section 239 Cr.P.C., praying to be discharged from the offences.
The learned S.D.J.M., having heard the parties, was pleased to
reject the Petitioner's prayer. Being aggrieved thereby, the
Petitioner moved the learned Sessions Judge, Sundargarh, and the
matter, having been transferred to the file of the learned Addl.
Sessions Judge, Sundargarh, in Criminal Revision No. 5/01 of
2024, was heard by the learned Addl. Sessions Judge, who, after
hearing the parties, was pleased to confirm the order dated
01.05.2024 passed by the learned S.D.J.M., vide his judgment dated
27.07.2024. Being aggrieved by the said judgments passed by the
learned courts below, the Petitioner has moved this Court herein.
6. The learned court, while answering the questioning on
maintainability, held that although the accused persons challenged
the discharge order on the ground that the original complaint under
Section 156(3) Cr.P.C. was not supported by an affidavit as
mandated in Priyanka Srivastava (Supra), the existence of
procedural error alone was not sufficient to discharge the accused.
The court noted that cognizance of offences under Sections
406/420/201/34 IPC had already been taken and remained
unchallenged. Upon examining the police papers and materials on
record, it found prima facie evidence against the accused to proceed
with the trial. It further clarified that in a revision petition, the
merits of the case are not to be assessed, but only the correctness
and propriety of the impugned order is to be examined. Finding
sufficient material and no illegality in the order of the learned
S.D.J.M., the court dismissed the revision and upheld the rejection
of the discharge petition.
7. The Petitioner's challenge to the maintainability of the
complaint under Section 156(3) Cr.P.C. is rooted in the absence of a
supporting affidavit, as mandated by the Hon'ble Supreme Court in
Priyanka Srivastava (Supra). This requirement, though procedural
in form, has been categorically held to be mandatory in substance.
8. The legal position has been further clarified in the recent
decision of the Hon'ble Apex Court in S.N. Vijayalakshmi & Ors.
vs. State of Karnataka & Anr,, reported in 2025 INSC 917, where
the Court distilled and reaffirmed the binding nature of Priyanka
Srivastava (Supra). While holding that the affidavit requirement is
a mandatory precondition for invoking the jurisdiction of the
Magistrate under Section 156(3), the Court also clarified that the
defect is curable, provided it is rectified before the Magistrate
passes any substantive order on the complaint. It is held as follows:
"45. The High Court has taken a view that this is a
curable defect since before the referral order on the PCR
by the ACMM for registering an FIR under Section
156(3) of the CrPC, the required formalities were done.
In our considered opinion, this approach cannot be
labelled erroneous. The requirement under Priyanka
Srivastava (supra) is to safeguard the rights of the
citizenry and to put a stop to unjust criminal action and
filing of vexatious applications to settle personal scores.
Thus, such requirement could not be said to be a mere
formality. One of us (Sudhanshu Dhulia, J.) as a Single
Judge of the Uttarakhand High Court, in Sachin Chamoli
v State of Uttarakhand, 2016 (3) NCC 68, where no
affidavit had been filed, held that filing of affidavit was a
mandatory requirement as per Priyanka Srivastava
(supra). In Babu Venkatesh v State of Karnataka, (2022)
5 SCC 639, this Court held that the Magistrate concerned
should not have entertained the complaint/application
under Section 156(3) of the CrPC therein, as it was not
supported by an affidavit. In the case at hand, before the
ACMM passed the referral order, the complaint was
backed by an affidavit. In Ramesh Kumar Bung v State
of Telangana, 2024 SCC OnLine SC 264, the Court,
while stating that the directions in Priyanka Srivastava
(supra) are mandatory, declined to interfere with the
order(s) impugned therein, but noted that the informant
had filed the affidavit belatedly. To complete the
discussion on this aspect of the law, we may also refer to
our judgment in Kanishk Sinha v State of West Bengal,
2025 SCC OnLine SC 443 where, speaking through
Sudhanshu Dhulia, J., this Court upheld an order of the
Calcutta High Court, to the effect that the direction in
Priyanka Srivastava (supra) to file the affidavit, was
prospective in nature. Therefore, if after the filing of the
complaint/application but before any order thereon is
passed, such requirement is allowed to be
fulfilled/complied with by the complainant, it would not,
in our view, run counter to the law exposited in Priyanka
Srivastava (supra). We sum up our conclusions on this
score as follows: (i) Directions issued in Priyanka
Srivastava (supra) are mandatory; (ii) Guidelines laid
down in Priyanka Srivastava (supra) operate
prospectively; (iii) Non-filing of the supporting affidavit
is a curable defect, but must be cured before the
Magistrate passes any substantive order on the
complaint/application, and; (iv) If the Magistrate
proceeds without the requisite affidavit, such order/any
consequential orders/proceedings can be quashed on the
sole ground of non-compliance with Priyanka Srivastava
(supra)."
9. The object behind requiring an affidavit is not merely
formal or technical. As observed in Priyanka Srivastava (Supra)
and reaffirmed in S.N. Vijayalakshmi (Supra), this requirement
serves as a crucial procedural safeguard aimed at ensuring that the
criminal process is not lightly invoked without due responsibility or
accountability on the part of the complainant. The affidavit acts as a
self-certifying threshold, discouraging frivolous or mala fide
applications and making the complainant personally answerable for
the truth of the allegations made. This safeguard is not only in the
interest of judicial discipline, but equally if not more in the interest
of the accused, who otherwise could be dragged into the rigours of
a criminal trial on the basis of unverified, and potentially vexatious,
allegations. Criminal law entails not just reputational harm but also
serious personal and procedural consequences, including arrest,
custodial interrogation, and the burdens of a protracted trial.
Therefore, strict compliance with the affidavit requirement is
essential to ensure that an accused is not exposed to the criminal
justice system without minimal procedural due diligence by the
complainant.
10. Where, as in the present case, no affidavit was filed at all,
the safeguard has not merely been overlooked but has been
completely bypassed. This failure is not a trivial irregularity, it
strikes at the very legitimacy of the Magistrate's act of directing
registration of the FIR, which in turn triggered the cascade of
investigative and judicial proceedings that followed. Allowing such
proceedings to continue despite this omission would render the
mandatory safeguards illusory, and would result in prejudice to the
accused.
11. Upon consideration of the submissions advanced by learned
counsel for the parties, the materials on record, and the legal
position settled by the Hon'ble Supreme Court in Priyanka
Srivastava v. State of U.P. (Supra) and S.N. Vijayalakshmi & Ors.
v. State of Karnataka & Anr. (Supra), this Court is of the
considered view that the complaint filed under Section 156(3)
Cr.P.C., not being supported by a duly sworn affidavit of the
complainant, suffers from a fatal procedural defect. In the absence
of such an affidavit, the complaint could not have been acted upon,
and the order of the learned Magistrate directing registration of the
FIR suffers from a jurisdictional error. Consequently, the rejection
of the Petitioner's discharge application, which is rooted in such
procedurally defective initiation, cannot be sustained in law.
12. However, it is made clear that this order shall not preclude
Opposite Party No. 2 from approaching the appropriate court
afresh, in accordance with law, by duly complying with the
procedural requirements laid down by the Hon'ble Supreme Court.
13. Accordingly, the CRLMP is allowed. The impugned
judgment dated 27.07.2024 passed by the learned Addl. Sessions
Judge, Sundargarh in Criminal Revision No. 05/01 of 2024, as well
as the order dated 01.05.2024 passed by the learned S.D.J.M.,
Sundargarh in G.R. Case No. 696 of 2015, are hereby set aside.
14. As a result, the proceedings initiated pursuant to the
complaint in ICC No. 126 of 2015 and the consequential G.R. Case
No. 696 of 2015 shall stand quashed.
(Chittaranjan Dash)
Judge
K.C.Bisoi/A.R.-cum-Sr. Secretary
Signed by: KRUSHNA CHANDRA BISOI
