Affidavit Necessary With Application U/S 156(3) CrPC, Magistrate Should Be Vigilant In Accepting Applications In Matrimonial/Family Disputes: Kerala High Court

Justice A. Badharudeen observed that the Magistrate should be vigilant in accepting applications seeking investigation in cases relating to the fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches. The Court held thus:

“Where applications under Section 156(3) of Code of Criminal Procedure are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

2) In an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations.

3) Prior to the filing of a petition under Section 156(3) of the Code of Criminal Procedure, there have to be applications under Section 154(1) and 154(3) of the Code of Criminal Procedure.”

The petitioner who was arrayed as the first accused for the commission of Criminal Breach of Trust punishable under Section 406 of IPC has approached the Court for quashing the final report and proceedings.

The wife of the accused is the complainant. It is alleged that the accused demanded 75 sovereign of gold and 50 lakhs rupees at the time of their marriage. Out of this, the accused promised that he would put a fixed deposit of 25 lakh rupees in the joint names of the accused and the complainant. It was alleged that the accused without the knowledge and consent of the complainant enchased 25 lakhs rupees without the knowledge and consent of the complainant and thereby committed a breach of trust. It was also alleged that the gold ornaments were also misappropriated.

The petitioner/accused submitted before the Court that ingredients of Section 406 of IPC were not attracted and prayed for quashing the proceedings. It was alleged that the complainant ought to have invoked Section 154 CrPC to file an FIR rather than filing a private complaint to the Magistrate as per Section 190 CrPC.

The Court relied upon Apex Court decision in Priyanka Srivastava (supra) wherein it was stated 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 filing an affidavit would deter unprincipled and deviant litigants from filing applications for malevolent reasons. The Court stated that this would deter litigants from simply approaching criminal courts since filing a false affidavit would result in prosecution under the law.

The Court stated that the Magistrate should not issue directions without verifying the veracity of the allegations and without application of mind.

In the facts of the case, the Court stated that there is a prima facie case made under Section 406 of IPC for warranting the trial of the accused.

The Court then considered whether irregularity in following the preconditions would render the investigation and final report filed therein non est. In the facts of the case, the Court observed that the accused did not challenge the investigation at the earliest stage before filing the final report by the police. It stated that charge alleging commission of an offence punishable under Section 403 IPC was filed only after the police investigation.

Accordingly, the Court dismissed the petition.

Counsel for Petitioner: Advocate Don Paul

Counsel for Respondents: Advocates Abraham P.George, C.C.Anoop, M.Santhy, Senior Public Prosecutor Renjith George

Citation: 2024 LiveLaw Ker 300

Case Title: Don Paul V State of Kerala

Case Number: CRL.MC NO. 1854 OF 2020

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