IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRIMINAL PETITION NO.317 OF 2018 BETWEEN:
1. Smt. Syeda Begum S/o Syed Dastagir, Aged about 64 years, R/at:D.No.100, KSRTC Block, ‘C’ Layout, Bannimantap, Mysuru District – 570 015.
2. Smt. Safeenaz W/o Matheen, Aged about 41 years, R/at: Jawahar Navodaya Vidyalaya, Hondarabalu, Chamarajanagar, Chamarajanagar District – 571 341.
3. Mr. Mahammad Habeeb S/o Mohammad Hameed Ulla, Aged about 51 years, R/at:12/121, K.P. Mohalla, KSRTC Bus-Stand Compound, Kasaba Hobli, Chamarajanagar Town & District – 571 313.
4. Mr. Syed Sameer S/o Syed Dastagir, Aged about 36 years, R/at:D.No.100, KSRTC Block ‘C’ Layout, Bannimantap, Mysuru District – 570 015. Petitioners (By Sri. Lethif .B, Advocate) AND:
1. The State of Karnataka, Rep. by Woman Police Station, Mysuru, Mysuru District, D.K. District, Rep. by SPP, High Court Building, Bengaluru – 560 001.
2. Smt. Arshiya Samreen .R W/o Syed Yusuf, Aged about 32 years, R/at:D.No.681, 5th Cross, 2nd Stage, M.G. Road, Behind Bilala Masjid, Udayagiri, Mysuru, Mysuru District – 570 019. ... Respondents (By Sri. R.D. Renukaradhya, HCGP for R1; Sri. Abubacker Shafi, Advocate for R2) This Criminal Petition is filed under Section 482 of Cr.P.C. praying to quash the entire proceedings in Crime No.55/2017, (PCR No.29/2017) on the file of the IV Additional Senior Civil Judge and JMFC at Mysuru for the offence punishable under Sections 498(A), 506 of IPC and Sections 3 and 4 of the Dowry Prohibition Act, so far as petitioners are concerned.
This Criminal Petition coming on for Admission, this day, the Court made the following:
ORDER Heard the learned counsel for the petitioners and learned counsel for the respondents.
2. On the last date of hearing, it has been canvassed that the private complaint in PCR No.29/2017 filed by respondent No.2 pending on the file of Principal Senior Civil Judge and CJM, Mysuru is not supported by an affidavit of the complainant and as settled by the Hon’ble Apex Court in the case of Priyanka Srivastav and another Vs. State of Uttar Pradesh and Others reported in 2015 (6) SCC 287 the same is mandatory. The Hon’ble Apex Court taking note of the indiscriminate registration of private complaints and consequential reference to the jurisdictional police in exercise of power under Section 156 (3) of Cr.P.C, deemed it fit to mandate that it is requirement of the complainant to file an affidavit while invoking provisions of Section 200 of Cr.P.C. That the complaint and the contents of the affidavit may also be looked into and verified by concerned Magistrate before proceeding in the matter in accordance with law and that such a measure has become necessary in view of disturbing and alarming situations prevailing in the Courts. In view of the attempts made by unscrupulous elements to take advantage and abuse the Court processes, the Hon’ble Apex Court in the case of Priyanka Srivastava at paragraph Nos.28 to 30 held as under:-
“28. Issuing a direction stating “as per the application” to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with Court to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken. However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an application under Section 156 (3) CrPC is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
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 fellow citizens, efforts are to be made to scuttle and curb the same.
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.”
3. This Court, on the previous date of hearing had called upon the counsel for respondent No.2 to clarify as to whether the private complaint filed by respondent No.2 has been accompanied by an affidavit as mandated by the Hon’ble Apex Court noted supra.
4. Learned counsel for respondent No.2 fairly submits that the private complaint is not accompanied by the affidavit as is made mandatory by the Apex Court in the aforesaid judgment. In that view of the matter, petition requires to be allowed.
5. Accordingly, petition is allowed. Proceedings registered as PCR No.29/2017 (now registered as Crime No.55/2017) on the file of IV Additional Civil Judge (Sr. Dn.) & JMFC, Mysuru stands quashed.
6. Quashing of the complaint will not prevent and come in the way of the complainant in re-filing the same after complying with the mandate as settled in law in the case of Priyanka Srivastava.
Sd/- JUDGE MBM