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2020 DIGILAW 277 (UTT)

Sangeeta Chauhan v. State Of Uttarakhand

2020-07-09

RAVINDRA MAITHANI

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JUDGMENT Ravindra Maithani, J. - Common question of law and facts arise in both these petitions, therefore, they are being decided by this common judgment. 2. Challenge in these petitions under section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') is the order dated 16.04.2019 passed in Criminal Revision No.23 of 2018, Mahak Singh Vs. State of Uttarakhand and Another, by the Court of learned Additional Sessions Judge, Dehradun (the revision) as well as the order dated 18.07.2019 passed in Misc. Case No. 631 of 2018, Mahak Singh Vs Sangeeta and Others, by the Court of learned Judicial Magistrate, Doiwala, Dehradun (the case). 3. Heard learned counsel for the parties through video conferencing and perused the record. 4. It appears that an application under section 156 (3) of the Code was filed by the respondent no.2 against the petitioners which was registered as Misc. Case No. 631 of 2018, Mahak Singh Vs. Sangeeta and Others, in the Court of learned Judicial Magistrate First, Dehradun. This application was rejected on 07.08.2018 on the ground that respondent no.2 did not file an affidavit in support of the application under section 156(3) of the Code. This order dated 07.08.2018 was challenged by respondent no.2 in the revision. By the impugned judgment and order dated 16.04.2019, learned Revisional Court held that in the case of Priyanka Srivastava and Another Vs. State of U.P and Others, (2015) 6 SCC 287 , it is not directed that an application under Section 156(3) of the Code may be rejected if affidavit is not filed and compliance of Section 154 of the Code is not made. While holding it, the matter was remanded to the learned Court below. Thereafter, the learned Court below vide order dated 18.07.2019 passed in the case allowed the application under Section 156 of the Code and directed the Police to register and investigate the case. Both these orders are impugned herein. 5. Learned counsel for the petitioner Smt. Sangeeta Chauhan would argue that principles of law as laid down in the case of Priyanka Srivastava (supra) are mandatory and non compliance thereof would result in dismissal of the application under section 156(3) of the Code. Both these orders are impugned herein. 5. Learned counsel for the petitioner Smt. Sangeeta Chauhan would argue that principles of law as laid down in the case of Priyanka Srivastava (supra) are mandatory and non compliance thereof would result in dismissal of the application under section 156(3) of the Code. He also raised the following arguments; (1) The cognizance order has been mechanically passed and the Court did not apply its judicial mind to find out as to whether prima facie case is made out or not. (2) There has been no compliance of Section 154 (1) of the Code, which is mandatory in view of the judgment in the case of Priyanka Srivastava case (supra). 6. Learned counsel appearing for the petitioner Sameer Farasi and Vinod Singh Rawat would argue that the impugned order dated 16.04.2019 is without jurisdiction; the cognizance order has been mechanically passed. 7. On the other hand, learned Senior Counsel appearing for respondent no.2 would argue that the application under Section 156 (3) of the Code was not dismissed in the Priyanka Srivastava case (supra) on the ground that affidavit was not be filed alongwith it. It is argued that since now FIR has been lodged pursuant to the directions given by the impugned orders, its effect has to be examined. 8. It is argued that lodging of FIR is a statutory function. FIR is lodged under Section 154 of the Code. Since, FIR is lodged, now the proceedings cannot be quashed unless FIR is also questioned, which is not done; filing of affidavit is a procedural issue. It can be done away with; respondent no.2 filed an affidavit in the High Court and it should be taken as the defect cured; even otherwise, it is argued that an opportunity should be given to the respondent no.2 to file an affidavit in support of the application under Section 156 (3) of the Code. It is also argued that mere non filing of an affidavit in support of the application under Section 156 (3) of the Code does not vitiate the proceedings. Reference has been made to Section 461 of the Code; 9. A very short question requires answer. It is as to whether it is mandatory to file an affidavit in support of an application under section 156(3) of the Code. 10. Reference has been made to Section 461 of the Code; 9. A very short question requires answer. It is as to whether it is mandatory to file an affidavit in support of an application under section 156(3) of the Code. 10. In the case of Priyanka Srivastava (supra), Hon'ble Supreme Court observed that '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.' The Hon'ble Court, in paragraph 31, further observed as hereunder; "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 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)..............................................................." 11. In view of the explicit directions of the Hon'ble Supreme Court, there is no doubt that an affidavit is required to be filed in support of an application under Section 156 (3) of the Code. It is mandatory. The directions of Hon'ble Supreme Court, is the law of the land. Not only this, the applications under Section 154 (1) and 154 (3) are also required to be filed and it should be clearly spelt out in the application under Section 156 (3) of the Code. If it is not done, what would be its effect? 12. Learned Senior Counsel for respondent no.2 would refer to the judgment in the case of Tapan Sarkar Vs. State of West Bengal,2016 SCCOnlineCalcutta 238, wherein in para 36, the Court made observations with regard to Priyanka Srivastava (supra) case. In the case of Tapan Sarkar (supra), it was not held that even if the affidavit is not filed alongwith application under Section 156 (3) of the Code, it will not vitiate the proceedings. State of West Bengal,2016 SCCOnlineCalcutta 238, wherein in para 36, the Court made observations with regard to Priyanka Srivastava (supra) case. In the case of Tapan Sarkar (supra), it was not held that even if the affidavit is not filed alongwith application under Section 156 (3) of the Code, it will not vitiate the proceedings. Even otherwise, the law as laid down in the case of Tapan Sarkar (supra) is post conviction. 13. The argument with regard to Section 461 of the Code has no force because the question is not that any Magistrate not being empowered has done anything, instead it is related to non-compliance of the directions of the Hon'ble Supreme Court. 14. This Court would like to record herein, at this stage, that effects would be different at different stages, namely at the initial stage of the proceedings or post-conviction. At the initial stage if it is brought to notice that affidavit is not filed alongwith the application under Section 156(3) of the Code, the effect would be different than the effect which it might have, if this defect in the application under Section 156(3) of the Code is brought to notice at an appellate stage. This has been very categorically discussed by Hon'ble Supreme Court in the case of H.N. Rishbud and Inder Singh Vs. State of Delhi, (1955) 1 SCR 1150 . The Hon'ble Supreme Court in the case of H.N. Rishbud observed as hereunder; "If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice." (Para 9) But, in paragraph 10 of the judgment in the case of H.N. Rishbud (supra), the Hon'ble Supreme Court further observed that 'it does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for...................................." (emphasis supplied) 15. The argument that application under Section 156 (3) of the Code was not dismissed in Priyanka Srivastava's case (supra) for the want of affidavit in support of it is totally misconceived, because it is in Priyanka Srivastava's case (supra), that the requirement of an affidavit alongwith an application under Section 156 (3) of the Code was laid down. It also does not make any difference that FIR is recorded under Section 154 of the Code and unless it is challenged, it cannot be quashed. If the origin goes, the entire structure will have to go. The question is what are the effects? 16. According to respondent no.2, he has filed affidavit before this Court. It makes no difference. Affidavit is required to be filed alongwith application under Section 156(3) of the Code. 17. During the course of arguments, learned counsel for the petitioner Smt. Sangeeta Chauhan would submit that in this case, respondent no.2 may not be given opportunity to rectify the defect because according to learned counsel, the compliance of Section 154 (1) and 154(3) of the Code has also not been made. This argument has no legs to stand upon, because, in paragraph 18 and 19 of the petition itself, petitioner Smt. Sangeeta Chauhan has stated about the complaint made by respondent no.2 to the Police with regard to murder of the Tek Chand by the petitioners. Police had inquired the matter but did not proceed further. In fact, in his application under section 156(3) of the Code, in paragraph 13, respondent no.2 had stated that Police did not properly inquire the matter. Report of the Police is also filed by the petitioner Smt. Sangeeta Chauhan alongwith the petition, which is annexure 8, which shows that, in fact, the matter was reported by respondent no.2 to the Police and the Police also inquired the matter, but, did not lodge the FIR. 18. Report of the Police is also filed by the petitioner Smt. Sangeeta Chauhan alongwith the petition, which is annexure 8, which shows that, in fact, the matter was reported by respondent no.2 to the Police and the Police also inquired the matter, but, did not lodge the FIR. 18. In view of the law laid down in the case of Priyanka Srivastava (supra), filing of affidavit alongwith application under Section 156 (3) of the Code is mandatory. The learned Revisional Court in its order dated 16.04.2019 erred in law while holding that the direction in the case of Priyanka Srivastava (supra) is merely "rule of prudence". In the instant case, respondent No. 2 did not file affidavit alongwith application under Section 156(3) of the Code. Therefore, the impugned order dated 16.04.2019 passed in the revision as well the order dated 18.07.2019 passed in the case deserve to be set aside. Since the illegality (non-filing of affidavit alongwith the application under Section 156(3) of the Code) has been brought to notice at a very early stage, the respondent no. 2 will have to be given an opportunity to rectify the defects and file an affidavit in support of application under Section 156(3) of the Code. 19. Both the impugned orders dated 16.04.2019 and 18.07.2019 are set aside. Consequently, all the proceedings done pursuant to these orders are also quashed. 20. The case is remanded to the Court of learned Judicial Magistrate, Doiwala, District Dehradun. Respondent no.2 will have liberty to file an affidavit in support of application under Section 156(3) of the Code in the Court of learned Judicial Magistrate, Doiwala, District Dehradun, within the time as may be prescribed by the Court. Once affidavit is filed the Court shall proceed from the stage of Section 200 of the Code. 21. This Court would like to make it clear that the questions relating to prima facie case or related factual aspects have not been touched by this Court. As and when occasion arises, petitioners shall have liberty to raise those points, if cognizance is taken against them. 22. Both the petitions, filed under Section 482 of the Code, are allowed accordingly. 23. A copy of this judgement be immediately forwarded to the learned court below.