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Madhya Pradesh High Court · body

2019 DIGILAW 82 (MP)

Akhilesh Sharma v. State of M. P.

2019-01-24

SHEEL NAGU

body2019
ORDER 1. Both the aforesaid petitions filed separately by two accused in Crime No. 58/2016 registered at Police Station Maharajpura alleging offence punishable under sections 408, 409, 419, 420, 467, 468, 471 and 120B of IPC involve the same factual and legal matrix and therefore, have been heard together and are being decided by this common order. 2. The short question which begs for an answer is that whether non-filing of an affidavit by the complainant disclosing as to whether any attempts were made for lodging the FIR under section 154(1) and 154(3) CrPC before filing an application under section 156(3) of CrPC before the Magistrate, would render the subsequent order passed by the Magistrate directing the police to register an offence, null and void on the anvil of the law laid down by the apex Court in Priyanka Shrivastava and another v. State of U.P. and ors. (2015) 6 SCC 287 . 3. Before adverting to the legal discussion, it would be apt to mention the factual matrix briefly. 3.1 A written complaint vide Annexure P-3 in MCrC No. 3369/17 dated 13.7.2015 was preferred by Smt. Narayani Devi against the petitioners in MCrC No. 3369/2017 and MCrC No. 14819/2018, alleging offences primarily of breach of trust, cheating and forgery coupled with criminal conspiracy with foundational allegation that certain piece of agricultural land which infact belonged to the deceased husband of complainant and thereafter, having devolved upon the complainant, was alienated by accused Jaswant Singh and Sultan Singh (not before this Court) with exercise of cheating and forgery and in conspiracy with the Patwari Jaynarayan Shrivastava (petitioner in MCrC No. 3369/17), in favour of Shyam Royal Vila Private Ltd. through its Director Akhilesh Kumar (petitioner in MCrC No. 14819/18). Along with the said written complaint, the complainant also filed an application under section 156(3) of CrPC for directing the Police to register the offences as alleged by complainant. 4. Admittedly, the application under section 156(3) of CrPC dated 13.7.2015 was not supported by an affidavit of complainant. 4.1 The object behind the law laid down by the apex Court of providing in mandatory terms filing of affidavit along with application under section 156(3) of CrPC has been succinctly elaborated in the decision of Priyanka Shrivastava (supra). Relevant extracts of which are reproduced below for ready reference and convenience : "30. 4.1 The object behind the law laid down by the apex Court of providing in mandatory terms filing of affidavit along with application under section 156(3) of CrPC has been succinctly elaborated in the decision of Priyanka Shrivastava (supra). Relevant extracts of which are reproduced below for ready reference and convenience : "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 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 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 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. 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. 35. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under section 156(3) CrPC" 5. From the above, it is evident that to ensure misuse of provision under section 156 (3) of CrPC by unscrupulous litigants and to allow only genuine aggrieved persons to approach the Magistrate whose bonafide plea for registration of offence has fell on deaf ears, was being raison d'etre which impelled the apex Court to lay down in mandatory terms, the requirement of filing an affidavit along with an application under section 156(3) of CrPC. 6. An important aspect noticeable from the decision in Priyanka Shrivastava (supra), is that though the apex Court has made it mandatory to file an affidavit disclosing the efforts taken by the complainant to approach the police alongwith application under section 156(3) of CrPC, but has not provided any consequences which would ensue for failure to file an affidavit. 6.1 Ordinarily, a judgment of the apex Court is the law of the land under Article 141 of Constitution of India and the necessary consequence of its breach should normally render the consequential action taken pursuant to the breach to be vitiated in law. 6.2. 6.1 Ordinarily, a judgment of the apex Court is the law of the land under Article 141 of Constitution of India and the necessary consequence of its breach should normally render the consequential action taken pursuant to the breach to be vitiated in law. 6.2. However, in the instant case, it is evident from the reading of contents of para-10 and 11 of the written complaint dated 13.7.2015 that the complainant on coming to know of commission of alleged cognizable offences had approached the police by submitting a written complaint to the Police Station Maharajpur, but it is further alleged by her in the said two paragraphs that the same was declined to be accepted. The complainant further states in her complaint in para-10 that a written complaint was also submitted on 23.06.2015 to the S.P. during Jan Sunwayi but to no avail. For ready reference and convenience, paras 9, 10 and 11 of the written complaint are reproduced below:- ^^9- ;g fd] vfHk;qDr Ø-1 o 2 ¼,d o nks½ ds firk Lo- Jh jkepjuflag iq= nsohflag Fks mDr fookfnr Hkwfe dHkh Hkh jkepjuflag iq= nsohflag dh ugh jgh gSA mDr fookfnr Hkwfe ds Lokeh jkedjuflag iq= Jh daqojikyflag Fks ,oa vfHk;ksxh Lo- Jh jkedjuflag iq= dqaojikyflag dh ifRu gSA 10- ;g fd] vfHk;ksxh }kjk vfHk;qDrx.k ds fo#) vkijkf/kd izdj.k iathc) djkus gsrq ,d vkosnui= iqfyl Fkkuk egkjktiqjk esa fn;k ftls fd mUgksaus izkIr ugha fd;k fQj vfHk;ksxh }kjk iqfyl v/kh{kd Xokfy;j dks tulquokbZ esa vkosnu fnukad 23-6-2015 fn;k x;k ftls fd iqfyl Fkkuk egkjktiqjk dks Hkstk x;k ijUrq muds }kjk vkt fnukad rd dksbZ dk;Zokgh ugha dh xbZ 11- ;g fd] vfHk;ksxh }kjk iqfyl Fkkuk egkjktiqjk ds dbZ pDdj yxk, x, ijUrq vfHk;ksxh dh dksbZ lquokbZ iqfyl Fkkuk egkjktiqjk }kjk ugha dh xbZ cfYd dgk x;k fd U;k;ky; dk esVj gS ogh tkvksA^^ 6.3. In view of the aforesaid, it seems that the complainant has mentioned in her written complaint about the exhaustion of the remedy under section 154(1) and 154 (3) of CrPC though the said statement is not supported by an affidavit as held to be mandatory by the apex Court in Priyanka Shrivastava's case. 9. In view of the aforesaid, it seems that the complainant has mentioned in her written complaint about the exhaustion of the remedy under section 154(1) and 154 (3) of CrPC though the said statement is not supported by an affidavit as held to be mandatory by the apex Court in Priyanka Shrivastava's case. 9. In the aforesaid attending facts and circumstances, would the non-swearing of an affidavit vitiate the complaint and all the consequential proceedings that have taken place or the contents of paras-9, 10 and 11 of the complaint substantially comply with the requirement of law laid down by the apex Court in Priyanka Shrivastava (supra), is the short question which falls for consideration. 10. After having pursued the relevant extract reproduced above in the decision of apex Court in case of Priyanka Shrivastava (supra), it is vivid that filing of an affidavit in support of an application under section 156 (3) of CrPC has been made mandatory, which is reflected from the anxiety of the apex Court expressed in para-35 of its judgment whereby copy of its judgment is directed to be circulated to all the High Courts, who in turn have been requested to circulate the same to all the learned Magistrates functioning under their jurisdiction, so that the law laid down by the apex Court is followed to the hilt. The judgment in Priyanka Shrivastava's case was delivered on 19th March, 2015 which was much before the impugned order was passed directing the police to register offences inter alia against the petitioner on the basis of application under section 156(3) of CrPC unsupported by an affidavit. The judgment in Priyanka Shrivastava's case was delivered on 19th March, 2015 which was much before the impugned order was passed directing the police to register offences inter alia against the petitioner on the basis of application under section 156(3) of CrPC unsupported by an affidavit. 10.1 If any contrary view is taken than the one taken in this order, it would amount to ignoring the law laid down by the apex Court and therefore, this Court is compelled to take the view that non-filing of an affidavit alongwith an application under section 156(3) of CrPC renders the application not maintainable, despite the complainant having disclosed to some extent the details about exhausting remedy under section 154 of CrPC prior to filing application under section 156(3) of CrPC 10.2 In view of the above discussion, there is no iota of doubt that the direction of the apex Court in Priyanka Shrivastava (supra), of filing an affidavit alongwith an application under section 156(3) of CrPC is mandatory, noncompliance of which renders order passed under section 156(3) of CrPC to be null and void. 11. Consequently, this Court deems it appropriate to allow both the petitions with the following directions : 1. Impugned order dated 8.2.2016 in Criminal Case No. 0/2015 passed by JMFC Gwalior (Smt. Narayani Devi v. Jaswant Singh and ors.) is set aside as far as relates to the petitioner in MCRC 3369/2017 and MCRC 14819/2018. 2. As a necessary compliance of the above, the FIR bearing Crime No. 58/2016 dated 12.2.2016 registered at Police Station Maharajpur district Gwalior so far as relates to both the petitioners herein is quashed. 3. All the further proceedings emanating from the aforesaid FIR stand quashed. 4. That the complainant is at liberty to file a fresh application under section 156(3) of CrPC duly supported by an affidavit disclosing all the relevant antecedents regarding exhaustion of alternative remedies under the CrPC as per the law laid down by the apex Court in Priyanka Shrivastava (supra), which if done, it is needless to emphasize, would be dealt with by the learned Magistrate in accordance with law as expeditiously as possible without being influenced by this order. No cost.