Mahendra Prasad Yadav, aged about 52 years, son of Balkishun Mahto, resident of Village v. 1. The State of Jharkhand 2. Jeera Devi, wife of Satish Mushar, resident of
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.3591 of 2023 ------ Mahendra Prasad Yadav, aged about 52 years, son of Balkishun Mahto, resident of Village- Tehro, P.O.- Basodih, P.S.- Satganwa, District- Koderma … Petitioner Versus 1. The State of Jharkhand 2. Jeera Devi, wife of Satish Mushar, resident of village- Rajghati, P.O.- Nandudih, P.S.- Satgawan, District- Koderma Opposite Parties … ------ For the Petitioner For the State For the O.P. No.2
Legal Reasoning
: Mr. Ashim Kr. Sahani, Advocate Mr. Vikesh Kumar, Advocate : Ms. Ruby Pandey, Addl.P.P. : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. Though notice was issued to the opposite party No.2 yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls. 3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 04.11.2022 passed by the learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No.1467 of 2022 by which the learned Magistrate has referred the complaint under Section 156 (3) of the Code of Criminal Procedure to police under oral prayer of the learned counsel for the complainant even though the complaint was not supported by the affidavit. 4. Learned counsel for the petitioner relies upon the judgment of Hon’ble Supreme Court of India in the case of Priyanka Srivastava & Another vs. State 1 Cr. M.P. No.3591 of 2023 of Uttar Pradesh & Others reported in (2015) 6 SCC 287 paragraph-30 of which read as under:- “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 the 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. (Emphasis supplied) and also relies upon the judgment of Hon’ble Supreme Court of India in the case of Babu Venkatesh & Others vs. State of Karnataka & Another reported in (2022) 5 SCC 639 paragraph-28 of which reads as under:- “28. From the perusal of the complaint it can be seen that, the complainant Respondent 2 himself has made averments with regard to the filing of the original suit. In any case, when the complaint was not supported by an affidavit, the Magistrate ought not to have entertained the application under Section 156(3)CrPC. The High Court has also failed to take into consideration the legal position as has been enunciated by this Court in Priyanka Srivastava v. State of U.P. [Priyanka Srivastava v. State of U.P., (2015) 6 SCC 287 : (2015) 3 SCC (Civ) 294 : (2015) 4 SCC (Cri) 153] , and has dismissed the petitions by merely observing that serious allegations are made in the complaint.” (Emphasis supplied) and submits that it is a settled principle of law that unless a petition under Section 156 (3) of the Cr.P.C. is supported by an affidavit, the Judicial Magistrate, 1st Class, Koderma ought not refer the same to police for registration of the case to prevent the frivolous cases being instituted and in this case as the order dated 04.11.2022 has been passed on the oral prayer by 2 Cr. M.P. No.3591 of 2023 the learned counsel for the complainant, hence, the same is not sustainable in law. Hence, the prayer made in this Cr.M.P. be allowed. 5. Learned Addl.P.P. appearing on behalf of the State on the other hand vehemently opposes the prayer of the petitioner for quashing the order dated 04.11.2022 passed by the learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No.1467 of 2022. 6. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that in view of settled principle of law that unless a petition filed under Section 156 (3) of the Code of Criminal Procedure is supported by an affidavit, the Judicial Magistrate, 1st Class, Koderma ought not entertain the prayer under Section 156 (3) of the Cr.P.C.; the learned Judicial Magistrate, 1st Class, Koderma has committed a grave illegality by passing the order dated 04.11.2022 on the oral prayer of the learned counsel for the complainant; even though the complaint is not supported by any affidavit nor any application under Section 156 (3) of the Code of Criminal Procedure was filed supported by affidavit for referring the complaint with the police for registration of the case. 7. Under such circumstances, this Court is of the considered view that the order dated 04.11.2022 passed by the learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No.1467 of 2022, is not sustainable in law and continuation of the same will amount to abuse of process of law. Accordingly, the order dated 04.11.2022 passed by the learned Judicial Magistrate, 1st Class, Koderma in Complaint Case No.1467 of 2022, is quashed and set aside. 8. The learned Judicial Magistrate, 1st Class, Koderma may continue with the complaint under Section 200 of the Code of Criminal Procedure. 3 Cr. M.P. No.3591 of 2023 9.
Decision
This Criminal Miscellaneous Petition is disposed of accordingly. (Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 13th of May, 2024 AFR/ Animesh-Saroj 4 Cr. M.P. No.3591 of 2023