Karnataka High Court
Sri Raveendrappa vs State Of Karnataka on 12 April, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF APRIL, 2022 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.1627 OF 2022
C/W
CRIMINAL PETITION No.1145 OF 2022
CRIMINAL PETITION No.1462 OF 2022
IN CRIMINAL PETITION No.1627 OF 2022
BETWEEN:
1. SRI SHESHANNA B.,
S/O BOMMA NAIK
AGED ABOUT 55 YEARS,
PRESENTLY WORKING AS
AUDIT OFFICER PRE DIVISION
R/AT NO.51, A BLOCK
SWAMI VIVEKANANDA LAYOUT,
GADIKOPPA, SHIVAMOGGA - 577 204.
2. SRI UMESH H.,
S/O LATE KENCHAPPA
AGED ABOUT 53 YEARS,
PRESENTLY WORKING AS
FIRST DIVISION ACCOUNT ASSISTANT
M I DIVISION, SHIVAMOGGA
R/AT KENCHARAYA KRUPA
HUDCO COLONY LIOG-53
VINOBA NAGAR
SHIVAMOGGA - 577 204.
... PETITIONERS
(BY SRI GOVINDARAJU K., ADVOCATE (VIDEO CONFERENCING))
2
AND:
1. STATE OF KARNATAKA
SHIVAMOGGA RURAL POLICE STATION,
SHIVAMOGGA RURAL CIRCLE
SHIVAMOGGA
REPRESENTED BY SPP
HIGH COURT OF KARNATKA
BENGALURU - 560 001.
2. SRI S.R.KANTHARAJ
S/O LATE S.REVANAPPA GOWDA
AGED ABOUT 52 YEARS,
CIVIL / ELECTRICAL CONTRACTOR
R/AT 1ST CROSS, 5TH MAIN,
VEERANNA LAYOUT,
VINOBA NAGARA, SHIVAMOGGA - 577 204.
... RESPONDENTS
(BY SMT.YASHODHA K.P., HCGP FOR R1 (PHYSICAL HEARING)
SRI HARISH KUMAR M.S., ADVOCATE FOR R2 (VIDEO
CONFERENCING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.21/2019 DATED
16.01.2019 REGISTERED BY THE 1ST RESPONDENT -
SHIVAMOGGA RURAL POLICE STATION, FOR THE OFFENCE P/U/S
405, 406, 408, 420, 463, 464, 471, 120(B) R/W 34 OF IPC ON THE
BASIS OF PRIVATE COMPLAINT IN PCR.NO.2/2019 FILED BY THE
RESPONDENT NO.2, ON THE FILE OF J.M.F.C.-III, SHIVAMOGGA,
VIDE ANNEXURE-A.
IN CRIMINAL PETITION No.1145 OF 2022
BETWEEN:
1. SRI C.V.JAGADISH
S/O LATE VENKATARAMANASWAMY REDDY
3
AGED ABOUT 65 YEARS
EXECUTIVE ENGINEER (RTD)
R/AT NO.90, 41ST CROSS
1ST FLOOR, JAYANAGAR
8TH BLOCK
BENGALURU - 560 070.
2. SRI RAJASHEKARAPPA
S/O LATE HALAPPA
AGED ABOUT 63 YEARS
ASSISTANT EXECUTIVE ENGINEER (RTD)
R/AT NO.897, "SHIVA BASAVA"
J.H.PATEL BADAVANE
BEHIND SHAMANURU
SHAMANURU POST
DAVANAGERE - 577 004.
3. SRI T.PRASANNA KUMAR
S/O LATE G.THIMMAPPA
AGED ABOUT 52 YEARS
PRESENTLY WORKING AS ASSISTANT
EXECUTIVE ENGINEER
KARNATAKA SLUM DEVELOPMENT
BOARD (KSDB) SUB DIV.,
SHIVAMOGGA
R/AT NO.59, SRI TULASI NILAYA
2ND CROSS, KEERTHINAGAR
SHIVAMOGGA - 577 201.
... PETITIONERS
(BY SRI GOVINDARAJU K., ADVOCATE (VIDEO CONFERENCING))
AND:
1. STATE OF KARNATAKA
SHIVAMOGGA RURAL POLICE STATION
SHIVAMOGGA RURAL CIRCLE
SHIVAMOGGA
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
4
BENGALURU - 560 001.
2. SRI S.R.KANTHARAJ
S/O LATE S.REVANNA GOWDA
AGED ABOUT 52 YEARS
CIVIL/ELECTRICAL CONTRACTOR
R/AT 1ST CROSS, 5TH MAIN
VEERANNA LAYOUT
VINOBA NAGARA
SHIVAMOGGA - 577 204.
... RESPONDENTS
(BY SMT.YASHODHA K.P., HCGP FOR R1 (PHYSICAL HEARING);
SRI HARISH KUMAR M.S., ADVOCATE FOR R2 (VIDEO
CONFERENCING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.21/2019 DATED
16.01.2019 REGISTERED BY THE FIRST RESPONDENT POLICE FOR
THE OFFENCE P/U/S.405, 406, 408, 420, 463, 464, 471, 120-B, 34
OF IPC ON THE BASIS OF PRIVATE COMPLAINT IN PCR NO.2/2019
FILED BY THE RESPONDENT NO.2 ON THE FILE OF THE JMFC III
SHIVAMOGGA, VIDE ANNEXURE-A.
IN CRIMINAL PETITION No.1462 OF 2022
BETWEEN:
SRI RAVEENDRAPPA
S/O LATE MUDDANNA,
AGED ABOUT 61 YEARS,
CHIEF ENGINEER (RTD.)
PRESENTLY R/AT CENTRAL LIBRARY ROAD,
B/H CANARA BANK
SAHAKARANAGARA
BENGALURU - 560 092.
... PETITIONER
(BY SRI GOVINDARAJU K.,(VIDEO CONFERENCING))
5
AND:
1. STATE OF KARNATAKA
SHIVAMOGGA RURAL POLICE STATION
SHIVAMOGGA RURAL CIRCLE
SHIVAMOGGA
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. SRI S.R.KANTHARAJ
S/O LATE S.REVANNA GOWDA
AGED ABOUT 52 YEARS,
CIVIL /ELECTRICAL CONTRACTOR
R/AT 1ST CROSS, 5TH MAIN
VEERANNA LAYOUT, VINOBA NAGARA
SHIVAMOGGA - 577 204.
... RESPONDENTS
(BY SMT.YASHODHA K.P., HCGP FOR R1 (PHYSICAL HEARING);
SRI HARISH KUMAR M.S., ADVOCATE FOR R2 (VIDEO
CONFERENCING))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE FIR IN CR.NO.21/2019 DATED
16.01.2019 REGISTERED BY THE 1ST RESPONDENT POLICE FOR
THE OFFENCE P/U/S 405, 406, 408, 420, 463, 464, 471, 120(B)
R/W 34 OF IPC ON THE BASIS OF PRIVATE COMPLAINT IN
PCR.NO.2/2019 FILED BY THE RESPONDENT NO.2 ON THE FILE OF
J.M.F.C.-III, SHIVAMOGGA VIDE ANNEXURE-A.
THESE CRIMINAL PETITIONS COMING ON FOR FURTHER
SUBMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
6
ORDER
The petitioners in the batch of these petitions call in question the proceedings in Crime No.21/2019 registered for offences punishable under Sections 405, 406, 408, 420, 463, 464, 471, 120B and 34 of the IPC. The crime is registered pursuant to registration of a private complaint by the complainant against the petitioners. The complainant is common in these petitions. Therefore, they are taken up together and considered by this common order.
2. For the sake of convenience, the facts narrated in Crl.P.No.1627/2022 are considered.
The 2nd respondent a civil electrical contractor at Shivamogga is sanctioned and approved a contract on 24.08.2007 to lift water from Tungabhadra river under Lift Irrigation Scheme near Holaluru village, Shivamooga district to provide water to four lakes, Narayana lake, Singalli lake, Boodikere lake and Suttukere lake. After completion of the main work by RNR Engineers (P) Ltd., without following due process of 7 law, the tender is said to have been allotted to one K.B.Kumar to complete the remainder of the work under the same project. Without completing the balance work under the aforesaid tender, it is the allegation of the complainant that K.B.Kumar who was awarded work without calling for tender, raised bills for installation of new pump, motor rewinding, panel board capacitor, starter and transformer and created false documents contending that he had performed the work between 07.4.2017 to 16.5.2017. The total bill amount claimed was Rs.70 lakhs, which according to the complainant was a fabricated bill by taking support from false documents. The sum and substance of the complaint registered by the respondent No.2/complainant in all these cases is what is aforesaid.
3. On the aforesaid facts, the complainant registers a private complaint invoking Section 200 of the Cr.P.C. against all the petitioners/accused in these cases. The learned Magistrate on 04.1.2019 endorses that cognizance is taken, office is directed to register the present complaint as PCR and put up 8 later, after which, the Magistrate refers the matter for investigation under Section 156(3) of the Cr.P.C. to the jurisdictional police. The police register an FIR against these petitioners in Crime No.21/2019 pursuant to the reference made by the Magistrate as aforesaid. On registration of the said crime, the petitioners in these petitions have knocked the doors of this Court in these petitions.
4. Heard Sri.K.Govindaraju, learned counsel for petitioners, Smt.K.P.Yashoda, learned High Court Government Pleader for respondent No.1 and Sri.Harish Kumar.M.S., learned counsel for respondent No.2.
5. The learned counsel appearing for the petitioner Sri.K.Govindaraj would contend that the complainant has made vague assertions in the complaint and the complaint is not supported by an affidavit as is required in law. The complainant also does not narrate in the complaint as to the efforts made by him to register a complaint before the police prior to registration of the private complaint before the learned Magistrate. 9
6. On the other hand, the learned counsel representing the complainant would contend that it is not mandatory to file an affidavit, as the statement of verification, verifying the contents of the complaint is made in the complaint itself, though the complaint neither contains a verifying affidavit or an affidavit. He would submit that it is a matter of trial as the petitioners are all prima facie guilty of the afore-quoted offences, the matter is still in the stage of investigation, the police are yet to file their final report/charge sheet in the matter. He would seek dismissal of the petition.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance of the aforesaid submissions and perusal of the material on record, the only issue that falls for my consideration is, "Whether the complaint was maintainable without it being accompanied by an affidavit and a narration with regard to the efforts made by the complainant to register a 10 complaint prior to registration of a private complaint before the Magistrate?"
8. To consider the said solitary issue, it is germane to notice Section 154 of the Cr.P.C. Section 154 of the Cr.P.C. runs as follows:
"154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant;
and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that offence."
(Emphasis supplied) 11 Section 154 of the Cr.P.C. deals with information in cognizable offences. Certain duties are enjoined to the informants in terms of Section 154 of the Cr.P.C. Prior to registration of a complaint under Section 200 of the Cr.P.C. it is mandatory for the complainants who seek to register a private complaint to aver, in the least, that they have made efforts to register a complaint before the jurisdictional police and that having not borne any fruits, left with no choice, have knocked the doors of the learned Magistrate and while saying so, an affidavit accompanying the complaint must be necessarily made, more particularly, in a case where the complainant seeks investigation under Section 156(3) of the Cr.P.C. from the hands of the jurisdictional police. The purport of this is, the complainant who takes the route of filing a private complaint and seeks investigation under Sections 156(3) of the Cr.P.C., shall file an affidavit accompanying the said complaint and also submit about the failure of efforts taken to get a complaint registered before the police.
12
9. The Apex Court in the case of PRIYANKA SRIVASTAVA V. STATE OF U.P.1 has held as follows:
"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 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 Section 156(3) be supported by an affidavit is so that the person making the 1 (2015)6 SCC 287 13 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.
32. The present lis can be perceived from another angle. We are slightly surprised that the financial institution has been compelled to settle the dispute and we are also disposed to think that it has so happened because the complaint cases were filed.
Such a situation should not happen.
33. At this juncture, we may fruitfully refer to Section 32 of the SARFAESI Act, which reads as follows:
"32.Protection of action taken in good faith.--No suit, prosecution or other legal proceedings shall lie against any secured creditor or any of his officers or manager exercising any of the rights of the secured creditor or borrower for anything done or omitted to be done in good faith under this Act."
In the present case, we are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under Section 156(3) CrPC. It is because Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needless to emphasise, the legislative mandate has to be kept in mind."
(Emphasis supplied) 14 The Apex Court clearly delineates the reason for directing affidavit to be accompanying the complaint and the narration about the efforts made by the complainant to register a complaint, as frivolous cases are simply registered without becoming accountable for the same.
10. The Apex Court in a later judgment, in the case of BABU VENKATESH VS. STATE OF KARNATAKA2 has held as follows:
"22. We find that in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent No. 2 by filing written statement, he has chosen to file complaint under Section 156(3) of the Cr.P.C. after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing the appellants. We find that, the present case fits in the category of No. 7, as mentioned in the case of State of Haryana v. Bhajan Lal (supra).
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 Pradesh2 has observed thus:2
2022 SCC Online SC 200 15 "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."
16
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. 17
30. We are, therefore, of the considered view that, continuation of the present proceedings would amount to nothing but an abuse of process of law."
(Emphasis supplied) On the bedrock of the principles enunciated in the afore- quoted judgments of the Apex Court, if the complaint registered under Section 200 of the Cr.P.C. and the prayer is noticed, it becomes unmistakably clear that it would fall foul of the so enunciated principles in the aforesaid judgments of the Apex Court.
11. The complaint registered by the 2nd respondent seeks investigation from the hands of the jurisdictional police under Section 156(3) of the Cr.P.C. for the afore-quoted offences. The relevant narration in the complaint is extracted for the purpose of quick reference:
"F ªÉÄð£À J¯Áè PÁgÀtUÀ½AzÁV, F ªÉÄÃ¯É ºÉýzÀ 1 jAzÀ 7£Éà DgÉÆæUÀ¼É®ègÀÄ F ªÉÄÃ¯É ºÉýzÀAvÉ ¥ÀgÀ¸ÀàgÀ ¸ÀAZÀĪÀiÁr zÁR¯ÁwUÀ¼À ¸ÀļÀÄî ¸ÀàµÀÖ£É ªÀiÁrgÀĪÀÅzÀÄ, F ¸ÀļÀÄî ¸ÀÈ¶× ªÀiÁrzÀ zÁR¯ÁwUÀ¼À£ÀÄß ¸ÀļÉîAzÀÄ UÉÆwÛzÀÄÝ CzÀ£ÀÄß §¼À¹PÉÆAqÀÄ ¸ÀPÁðgÀPÉÌ ªÉÆøÀ ºÁUÀÆ ªÀAZÀ£ÉªÀiÁrgÀĪÀÅzÀÄ, C®èzÉ D zÁR¯ÁwUÀ¼À£ÀÄß ªÉÄïÁ¢üPÁjUÀ¼ÀªÀjUÉ ªÀUÁð¬Ä¹ CªÀgÀÄUÀ¼À£ÀÄß CzÀÄ ¤dªÁzÀzÉÝAzÀÄ £ÀA©¹gÀĪÀÅzÀÄ, D zÁR¯ÁwUÀ¼À£ÀÄß DzsÁgÀªÁVlÄÖPÉÆAqÀÄ ¸ÀPÁðgÀªÀ£ÀÄß, ¸ÁªÀðd¤PÀgÀ£ÀÄß £ÀA©¹gÀĪÀÅzÀÄ C¥ÀgÁ¢üPÀ £ÀA©PÉUÉ zÉÆæúÀ ªÀiÁrgÀĪÀÅzÀÄ, C¥ÀgÁ¢üPÀ £ÀA©PÉUÉ zÉÆæúÀ ªÀiÁr zÀĪÀåðªÀºÁgÀ ªÀiÁrgÀĪÀÅzÀÄ, PÀvÀðªÀå ¤®ðPÀëvÀ£À ªÀiÁrgÀĪÀÅzÀÄ, ¸ÀPÁðgÀzÀ ¸ÀéwÛUÉ GzÉÝñÀ¥ÀƪÀðPÀªÁV £ÀµÀתÀ£ÀÄßAlÄ ªÀiÁrgÀĪÀÅzÀÄ, CPÀæªÀÄ ¸ÀA¥ÁzÀ£É 18 ªÀiÁrPÉÆArgÀĪÀÅzÀÄ, C¢üPÁgÁwÃvÀ C¢üPÁgÀªÀ£ÀÄß ZÀ¯Á¬Ä¹gÀĪÀÅzÀÄ EvÁå¢.. PÀÄjvÁV ¨sÁgÀvÀ zÀAqÀ ¸ÀA»vÉAiÀÄ 405, 406, 408, 463, 464, 465, 468, 471, 420, 120 © ºÁUÀÆ 34 ªÀÄvÀÄÛ E¤ßvÀgÀ C£ÀéAiÀĪÁUÀĪÀ ¸ÉPÀë£ï CrAiÀÄ°è zÀAr¸À§ºÀÄzÁzÀ C¥ÀgÁzÀUÀ¼À£ÀÄß ªÀiÁrzÀÄÝ D PÁgÀt Qæ«Ä£À¯ï ¥ÉÆæ¹Ãdgï PÉÆÃqï£À ¸ÉPÀë£ï 156(3)gÀrAiÀÄ°è ¸ÀªÀÄUÀæ vÀ¤SÉAiÀÄ£ÀÄß vÀéjvÀªÁV ªÀiÁr ªÀgÀ¢AiÀÄ£ÀÄß ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ°è ºÉýzÀAvÉ vÀªÀÄUÉ ¸ÀÆPÀ۪ɤ¸À§ºÀÄzÁzÀ ¥ÉÆðøï oÁuÉAiÀÄ vÀ¤SÁ¢üPÁjUÀ½UÉ ¸ÀàµÀÖ ¤zÉÃð±À£À ¤ÃqÀ¨ÉÃPÉAzÀÆ, ºÁUÀÆ PÁWÀßd£ïë vÉUÉzÀÄPÉÆAqÀÄ DgÉÆæUÀ¼À£ÀÄß PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ ²PÉëUÉ M¼À¥Àr¸À¨ÉÃPÉAzÀÄ ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ°è ¦AiÀiÁðzÀÄzÁgÀgÀÄ PÀ¼ÀPÀ½¬ÄAzÀ ¥Áæyð¹PÉƼÀÄîvÁÛgÉ.
¸À»/- ¸À»/-
¦AiÀiÁðzÀÄzÁgÀgÀ ¥ÀgÀ £ÁåAiÀĪÁ¢ ¦AiÀiÁðzÀÄzÁgÀgÀÄ
¸ÀvÁå¥À£É
F ªÉÄÃ¯É ºÉýzÀ ¥ÁågÀ ¸ÀASÉå 1 jAzÀ 19gÀ°è£À J¯Áè CA±ÀUÀ¼ÀÄ £Á£ÀÄ £ÀA©gÀĪÀ ªÀÄnÖUÉ , £À£ÀUÉ w½¢gÀĪÀ ªÀÄmÉÖUÉ ¸ÀvÀåªÁVgÀĪÀÅzÁV ¥ÀæªÀiÁt ªÀiÁqÀÄvÉÛãÉ.
¸À»/-
¦AiÀiÁðzÀÄzÁgÀgÀÄ."
(Emphasis added) The afore-quoted complaint is clearly an application seeking investigation under Section 156(3) of the Cr.P.C. What is noticed from the complaint is that it is verified by a statement
- a verification and does not accompany with an affidavit. Non- filing of an affidavit along with the complaint is admitted by the learned counsel appearing for the respondent-complainant. Therefore, in the absence of an affidavit accompanying the afore- quoted complaint/application, seeking investigation under 19 Section 156(3) of the Cr.P.C. could not have been maintained as it ran counter to the judgments rendered by the Apex Court (supra).
12. There is a wide difference between a verification and an affidavit. Affidavit is a legally signed and notarized document, whereas, verification is only the statement of the complainant that whatever he has said is true. The accountability of the two are entirely different. Filing a false affidavit can make the complainant accountable and open to legal proceedings, the verification would not. Therefore, the learned Magistrates before whom a complaint is filed under Section 200 of the Cr.P.C. in which investigation under Section 156(3) of Cr.P.C. is sought shall not entertain such complaints, if they are not accompanied by an affidavit as mandated in terms of the judgments of the Apex Court afore-quoted in PRIYANKA SRIVASTAVA and BABU VENKATESH (supra).
13. Notwithstanding the directions by the Apex Court in the case of PRIYANKA SRIVASTAVA and its mandate, this 20 Court is flooded with cases of challenge to a direction under Section 156(3) of the Cr.P.C. by the learned magistrate on private complaints being filed without accompanying affidavits. It is such cases, inter alia, that have lead to docket explosion in the trial Court and this Court, as any complaint sans accountability can sometimes be frivolous, frivolous I say, for the reason that complaints are registered to wreck vengeance; giving a civil dispute a colour of crime; intentions which suffer from want of bonafides; to settle personal scores, inter alia. It is therefore, the complainants should become accountable for registration of every crime. Reference being made to the judgment of the Apex Court in the case of KRISHNA LAL CHAWLA V. STATE OF U.P.3, in the circumstances is apposite. The Apex Court observes as follows:
"22. Frivolous litigation should not become the order of the day in India. From misusing the public interest litigation jurisdiction of the Indian courts to abusing the criminal procedure for harassing their adversaries, the justice delivery system should not be used as a tool to fulfil personal vendetta. The Indian judiciary has taken cognizance of this issue. In 2014, this 3 (2021) 5 SCC 435 21 Court elucidated as follows, the plight of a litigant caught in the cobweb of frivolous proceedings in Subrata Roy Sahara v. Union of India [Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470 : (2014) 4 SCC (Civ) 424 : (2014) 3 SCC (Cri) 712] : (SCC p. 642, para 191) "191. ... One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his."
While the Court's ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself.
23. As aforesaid, the trial courts and the Magistrates have an important role in curbing this injustice. They are the first lines of defence for both the integrity of the criminal justice system, and the harassed and distraught litigant. We are of the considered opinion that the trial courts have the power to not merely decide on acquittal or conviction 22 of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of the Constitution. In this context, the trial Judges have as much, if not more, responsibility in safeguarding the fundamental rights of the citizens of India as the highest court of this land."
Paraphrasing the observations of the Apex Court, I deem it appropriate to direct the learned Magistrates to notice the following, prior to entertainment of complaints invoking Section 200 of the Cr.P.C.:
(a) The learned Magistrates shall look into the complaint and its narration with regard to compliance of Section 154(1) and (3) of the Cr.P.C.
(b) When complaints/applications are filed invoking Section 200 of the Cr.P.C. r/w Section 156(3) of the Cr.P.C. and a direction is sought at the hands of the learned Magistrates for investigation at the hands of the police, only such complaints shall accompany an affidavit and 23 not otherwise, as time has come to 'nip frivolous registration of crime, in its bud'.
14. For the aforesaid reasons, the following:
ORDER
(i) The Criminal Petitions are allowed.
(ii) The impugned proceedings in Crime No.21/2019 pending on the file of JMFC-III Court, Shivamogga stands quashed qua the petitioners.
(iii) The Registry is directed to circulate the copy of this order to all the concerned learned Magistrates in the State for compliance with the directions.
Sd/-
JUDGE bkp CT:MJ