After appreciating the facts, the Hon HC concludes that
“….On meaningful reading of the above said paragraphs, it is clear that when the court has to make certain observations, with all certainty that there has to be prior report by the complainant before police u/s.154(1) and if the police have not taken any action, he has approached the higher officers u/s.156(4) and (3) of Cr.PC., before filing the complaint and application u/s.156(3) of Cr.PC., Both the above said aspects should be clearly spelt out in the affidavit along with the necessary documents to that effect, shall be filed by the complainant.
….In this particular case, the said procedure appears to have not been followed by the complainant. Also, the learned Magistrate has not looked into this particular aspect. Therefore, in my opinion, the reference order passed by the learned Magistrate u/s.156(3) is bad in law and consequential registration of the FIR also deserves to be quashed….”
1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF JUNE, 2018 BEFORE THE HON'BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.2090/2018 BETWEEN 1. SRI SHAIK LAIQUE AHMED S/O S K NAZEER BASHA AGED ABOUT 34 YEARS REP. BY HIS G P A HOLDER SRI S K NAZEER BASHA 2. SRI S K NAZEER BASHA S/O SHAIK RAHMATHUMIA SAHEB AGED ABOUT 68 YEARS 3. SMT BEGUM JAN W/O S K NAZEER BASHA AGED ABOUT 61 YEARS NOS. 1 TO 3 ARE R/AT NO 8, AZIZ MULK, 8TH STREET THOUSAND LIGHTS CHENNAI - 600 006 4. SRI FEROZ NAWAZ KHAN S/O OF SRI YAKUB NAWAZ KHAN AGED ABOUT 65 YEARS 5. SMT KURSHEED BEGUM W/O SRI FEROZ NAWAZ KHAN AGED ABOUT 62 YEARS 6. SMT SHANAWAZ BEGUM DAUGHTER OF MR HUSSAIN KHAN AGED ABOUT 61 YEARS 2 7. SMT REHANA BEGUM DAUGHTER OF MR HUSSAIN KHAN AGED ABOUT 61 YEARS NOS. 4 TO 7 ARE R/AT NO 38/78, AZIZ MULK, 3RD STREET THOUSAND LIGHTS CHENNAI - 600 006 ... PETITIONERS (BY SRI. SHAMANTH NAIK, ADV. FOR SRI. SYED KHAMRUDDIN, ADV.) AND 1. STATE OF KARNATAKA REP. BY SHIVAJINAGAR WOMEN POLICE STATION EAST ZONE, BANGALORE CITY BANGALORE - 560037 REP. BY SPP HIGH COURT BUILDING 2. SMT SYEDA SALMA SADIYA D/O SYED PASHA AGED ABOUT 31 YEARS R/ AT NO 2629, 37TH CROSS 9TH BLOCK, JAYANAGAR BENGALURU - 560 069 ... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP FOR R1; SRI. J. D. KASHINATH, ADV. FOR SRI. MOHAMMED SULTAN BEARY, ADV. FOR R2.) THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ALL PROCEEDINGS AND COMPLAINT IN P.C.R.NO.12622/2017 PENDING BEFORE THE VI ADDL.C.M.M., BENGALURU. THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: 3 ORDER
Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the first respondent – State and the learned counsel for the second respondent. Perused the records. https://twitter.com/ATMwithDick/status/1022336818858127360
2. The records disclose that the second respondent has filed a private complaint u/s.200 of Cr.PC., registered in PCR No.12622/2017 for the offence punishable under Sections 498A, 377, 323, 354 and 506 of IPC and also u/ss.3 and 4 of the Dowry Prohibition Act. The learned Magistrate has referred the said complaint for investigation and report exercising power u/s.156(3) of Cr.PC., and the matter is still awaiting report from the police.
3. On the basis of the above said reference, the first respondent – police has registered a complaint u/s.156(3) of Cr.P.C., and referred for investigation and report, which proceedings are called in question.
4. The main contention of the learned counsel for the petitioners is that before referring the matter, the learned Magistrate has not looked into the complaint averments in order to examine as to whether any affidavit is filed by the complainant in consonance with the guidelines of the Hon’ble Apex Court in a case reported in 2015 (6) SCC 287 between Priyanka Srivatsava and another Vs. State of UP & Others. It is worth to extract paragraphs 26 and 27 of the said judgment of the Hon’ble Apex Court which reads thus:
“26. 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 fellows citizens, efforts are to be made to scuttle and curb the same.
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 164(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”
On meaningful reading of the above said paragraphs, it is clear that when the court has to make certain observations, with all certainty that there has to be prior report by the complainant before police u/s.154(1) and if the police have not taken any action, he has approached the higher officers u/s.156(4) and (3) of Cr.PC., before filing the complaint and application u/s.156(3) of Cr.PC., Both the above said aspects should be clearly spelt out in the affidavit along with the necessary documents to that effect, shall be filed by the complainant.
5. In this particular case, the said procedure appears to have not been followed by the complainant. Also, the learned Magistrate has not looked into this particular aspect. Therefore, in my opinion, the reference order passed by the learned Magistrate u/s.156(3) is bad in law and consequential registration of the FIR also deserves to be quashed. https://twitter.com/ATMwithDick/status/1022336818858127360
Hence, the following:
The Petition is allowed. Consequently, the order passed by the VI Addl. CMM, Bengaluru City in PCR No.12622/2017 dated 11.10.2017 referring the complaint for investigation and report u/s.156(3) of Cr.PC., is hereby set aside and the consequential registration of FIR by the first respondent police is hereby quashed. However, the complaint filed by the respondent No.2 is restored on to the file of the learned VI Addl. CMM Bengaluru with a direction that the Magistrate has to go through the observations made by the Hon’ble Apex Court in Priyanka Srivatsa’s Case as noted above and follow the procedure as contemplated therein and pass appropriate order in accordance with law.