Nand Kishore Vyas and Another v. State of Uttarakhand and Another

---------------------------------------------------------------------- Presence:- Mr. Lalit Miglani, learned counsel for the applicants. Mr. Deepak Bisht, learned DAG along with Mr. Devendra Singh, learned AGA for the State. Mr. Pawan Mishra and Ms. Rajni, learned counsel for the private respondent. ---------------------------------------------------------------------- JUDGMENT This Criminal Misc. Application has been filed the applicants, challenging the order dated

17.11.2016 passed by learned District and Sessions Judge, Haridwar in Criminal Revision No.391 of 2016, Jitender Gaur vs. State and Others, whereby the Revision was allowed and the order dated 27.08.2016 was set aside and matter was remanded back directing the court below to reconsider the application under Section 156 (3) of Cr.P.C.

2. From the perusal of the record, it reveals that a complaint was made by respondent no. 2 to the S.P. Haridwar, wherein he has alleged that the present 1 applicants, who are priest in Udeshwar Mahadev Temple, have fraudulently obtained an amount of Rs. 5,55,000/- from respondent no.2 in lieu of purchase of a shop, but despite that, the shop was not given to him by the applicants. On inquiry by the police, it was revealed that the mobile number and the address, which the complainant has given in his complaint, were not in use and the address after much search in the area was also not traceable; that, they also enquired about the matter from the persons nearby the temple, but everyone denied the same. Therefore, the complainant filed an application under Section 156(3) Cr.P.C. against the applicants. Learned Judicial Magistrate 2nd, Haridwar rejected the said application vide order dated 27.08.2016. Against the said order, complainant filed Criminal Revision. The said criminal revision has also been dismissed by learned Sessions Judge, Haridwar, District Haridwar vide order dated 17.11.2016. Hence, this criminal misc. application.

3. Heard learned counsel for the parties and perused the record.

4. Learned counsel for the applicants would submit that the application under Section 156(3) Cr.P.C. is not maintainable, as it is not supported by any affidavit; that, before filing the application, complainant has filed a complaint before the police in which the address and the mobile number given by the complainant are not traceable. The police after investigating held that the allegations made in the complaint are not substantiated and no further police inquiry is required in the matter.

5. Per contra, learned counsel 2 complainant would submit that the application under Section 156(3) Cr.P.C. does not mandate that complaint filed under Section 156(3) is to be accompanied by an affidavit.

6. Learned counsel for the applicants has relied upon the judgment passed by the Hon’ble Apex Court in the case of Priyanka Srivatava and Another vs. State of Uttar Pradesh and Others, reported in (2015) 6 SCC 287, wherein the Apex Court has held that the application under Section 156(3) Cr.P.C. seeking direction registration of FIR must be supported by an affidavit. The relevant paragraphs of the judgment are extracted herein below:-

29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same. country in an appropriate case,

30. In our considered opinion, a stage has come in 156(3) Cr.P.C. where Section 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, 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 responsibility taking 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 said Act or under Article 226 of the Constitution of India. But it 3 cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

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 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). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

7. In view of the law laid down by the Hon’ble Apex Court in Priyanka Srivatava and Another (supra) case and for the fact that in the present case also the application under Section 156(3) Cr.P.C. was not accompanied by the affidavit of the complainant. Thus, on the basis of the observations made in preceding paragraphs of this judgment, this Court has no hesitation in quashing the impugned order dated

17.11.2016 passed in the Criminal Revision No.391 of

8. Accordingly, the present criminal misc. application filed U/s 482 Cr.P.C. is allowed and the 4 impugned order dated 17.11.2016 passed in the Criminal Revision No.391 of 2016 is hereby quashed. Dated: 12.08.2025 BS (ALOK MAHRA, J.) 5