Non-Filing Of Affidavit In Support Of Application U/s 156(3) CrPC A Curable Defect, Holds Uttarakhand HC [Read Judgment]

In this case [Commercial Toyota vs. State of Uttarakhand], the Magistrate, relying on the Apex Court judgment in Priyanka Srivastava vs. State of UP., rejected an application under Section 156(3), on the ground that it was not accompanied with an affidavit. The Revisional Court remanded the matter to the Magistrate and directed him to consider the application de-novo.

Justice Sharad Kumar Sharma, referring to Priyanka Srivastava, observed that the said judgment castes a duty on the Magistrate himself to ensure that the application preferred under Section 156(3) is authentic and genuine and in order to attach that authenticity, it has been laid down that the application has to be supported with an affidavit.

The Court further observed that, if there is an inaction on part of the Magistrate in asking the applicant concerned to file an application under Section 156(3) along with an affidavit, in such an eventuality, the applicant cannot be made to suffer where the Magistrate has not instructed or observed that the applicant has to support his application with an affidavit as contemplated by the judgment of Priyanka Srivastava.

The court explained the Supreme Court judgment in Priyanka Srivastava, by making following observations:

If the direction as given by the Hon'ble Apex Court as mandated by paragraph 27 to 32, which has been quoted above, it rather also castes a responsibility on the Magistrate concerned also before whom the application is filed has to ensure that an application filed under Section 156(3) is supported by a duly sworn affidavit filed by the applicant, who is seeking invocation of the jurisdiction under Section 156(3). The motive behind the aforesaid direction was to harness upon the responsibilities on the applicant as well with Court where the proceedings are initiated and to restrict filing of frivolous applications. Once it is a responsibility, which has been laid to be discharged by the Magistrate concerned and it aims at to achieve a certain social reformative object, this Court is of the view that the test of entertainment of an application under Section 156(3) with regards to it being supported by an affidavit has to be judged at the stage when the proceedings itself is entertained by the Magistrate, i.e. at the stage of inception of the proceedings. The said responsibility as enunciated in the judgment of the Hon'ble Apex Court has shouldered the responsibilities on the Magistrate also, who is supposed to discharge a duty casted by law to ensure that every application filed under Section 156(3) is entertained only when it is supported by an affidavit.

The very observation made in paragraph 30 (as quoted above) of the judgment of the Priyanka Srivastava's case (supra) where a responsibility has been shouldered on the Magistrate with regards to the propriety of the application to be supported by an affidavit, i.e. the stage when the proceedings are initiated that in itself makes the defect of the application being supported by an affidavit as to be curable in nature because if an application is not supported by an affidavit and is rejected, it may in a particular circumstance result into depriving of a right of a citizen to invoke the proceedings of Section 156(3) and in these circumstances the Court or the Magistrate can always direct the applicant to file an affidavit in support of his application under Section 156(3) so as to make it maintainable before the Court. If that defect of application under Section 156(3) not being supported with affidavit, is made as an uncurable, it may at times in some cases be giving superior hand to the Magistrate to deprive the applicant of filing application under Section 156(3) by rejecting the same on this procedural ground itself.

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