Affidavit Necessary With Application Under S.156(3) CrPC; Directions In 'Priyanka Srivastava v. State of UP' Mandatory: Supreme Court


Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Supreme Court, in its recent order, has stated that the directions passed by it in the decision of Mrs. Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors. (2015) 6 SCC 287, are mandatory.

The Division bench of Justices Sanjiv Khanna and Dipankar Datta was hearing a criminal appeal arising from the Telangana High Court's order. The High Court had refused to quash the FIR registered against the accused. Several provisions of the Indian Penal Code of 1860, including cheating, were invoked against the accused. While doing so, the High Court also noted that non-filing the affidavit does not vitiate the proceedings to quash the entire complaint.

When the matter came before the Apex Court, it was observed that the informant had furnished the affidavit 'belatedly.' In the light of that, the Court recorded in its order:

“We are of the opinion that the directions given by this Court in Mrs. Priyanka Srivastava & Anr. v. State of Uttar Pradesh & Ors. are mandatory. However, in the facts of the present case, we find that the informant had furnished the affidavit, though belatedly.”

As the matter was pending investigation, the Court disposed of the petition without commenting on the merits of the case.

What was held in Priyanka Srivastava?

In this judgment (Priyanka Srivastava) authored by Justice Deepak Mishra, it was held that applications under Section 156(3) of CrPC are to be supported by an affidavit of the applicant who seeks the invocation of the Magistrate's jurisdiction. It may be noted that any judicial magistrate may order an investigation under Section 156(3) of CrPC before taking notice of the offence.

The Court observed that such applications are being filed routinely without taking any responsibility and only to harass certain persons. Therefore, in the judgment, Magistrates were advised to verify the truth and veracity of the allegations. This affidavit can make the applicant more responsible, the Court added.

Highlighting the gravity of the situation, the Court recorded:

“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.”

Notably, in its decisions, the Court also referred to the case of CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd. In that case, the Court, while dealing with the power of the Magistrate to take cognizance of the offences, opined that the latter might consider sending the complaint for police investigation.

“When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself.”

Case Title: RAMESH KUMAR BUNG & ORS., STATE OF TELANGANA & ANR., Diary No.- 42984 – 2023

 Citation: 2024 SC