BABUL ANSARI and ANR. vs THE STATE OF ASSAM and ANR.

1.Heard Mr. J. Roy, learned counsel for the petitioner and Mr. B. Gogoi, learned Addl. P.P., Assam as well as Mr. M. Rahman, learned counsel for

the respondent No. 2.

This petition under Section 482 CrPC has been filed praying for quashing of the order dated 31.07.2017 passed by the learned Judicial Magistrate,

Golaghat sending the complaint lodged by the respondent No. 2 to police under section 156(3) CrPC as well as the FIR registered on the basis of the

said complaint.

Learned counsel Mr. J. Roy, placing reliance on the two decisions of the Apex Court in Sakiri Basu Vs. State of U.P. reported in (2008) 1 SCC

(Cri) 440 and Priyanka Srivastava Vs. State of U.P. reported in (2015) 6 SCC 287 submits that the learned Magistrate without applying his mind

forwarded the complaint to police under Section 156(3) CrPC, though the complainant did not comply with the direction of the Apex Court given in the

case of Sakiri Basu (supra) as well as Priaynka Srivastava (supra) case.

In Sakiri Basu (supra), the Apex Court observed that before invoking the provision of Section 156(3) CrPC for directing the police to register a case

and conduct investigation on the basis of the complaint, the Magistrate should satisfy himself as to the bonafide and genuineness of the allegations

made in the complaint and should not mechanically send a complaint to the police for registering a case under Section 156(3) CrPC. The Apex Court

also observed that there must be compliance of Section 154 (1) and 154(3) CrPC and the complaint should accompany an affidavit spelling out the

steps taken under Section 154(1) and 154(3) CrPC. The complainant is required to lodge an FIR under Section 154 CrPC and if, no action is taken by

police then he can approach the Superintendent of Police under Section 154(3) CrPC and even if it does not yield any satisfactory result, in such case,

complainant can file complaint before Court for direction to police under Section 156 (3) CrPC. While forwarding a complaint to police under Section

156(3) CrPC, the Magistrate has to record the reasons indicating the necessity for sending the complaint to police under Section 156(3) CrPC.

In Priyanka Srivastava (supra), the Apex Court held that while invoking power of Section 156(3) CrPC, the party approaching court for direction to

police under Section 156 (3) CrPC must state in the petition that he has exhausted the procedure under Section 154 (1) and 154(3) CrPC and also to

submit an affidavit along with the complaint in support of the averments made therein. When a complaint is filed before the court for direction under

Section 156(3) CrPC, before making such direction the court needs to be satisfied from the complaint that provision of Section 154(1) and 154(3)

CrPC have been exhausted and an affidavit has been filed to that effect and then only, court can send the complaint to police after being satisfied as

to the bonafide and genuineness of the allegations. In the instant case, learned counsel for the petitioner has pointed out that the petition did not

disclose whether the complainant exhausted the procedure under Section 154(1) and 154(3) CrPC nor any affidavit was fled as mandated by the

Apex Court in Priyanka Srivastava’s case (supra). Learned Magistrate without applying his mind mechanically forwarded the complaint to police.

It is also submitted by the learned counsel that the allegations made in the complaint were absurd and concocted. It is pertinent to mention that

provision of submitting an affidavit along with the petition, as observed by the Apex Court in Priyanka Srivastava (supra) is intended to prevent the

filing of frivolous complaint. The Apex Court in Priyanka Srivastava (supra) observed as under:

“We have already indicated that there has to be prior application under Section 15491) 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 endeavor to

see that no false affidavit is made.â€​

Learned counsel Mr. M. Rahman, representing the respondent No. 2 /informant has fairly conceded that here was laches on the part of the

informant/respondent No. 2 as he has not lodged any FIR under Section 154(1) CrPC nor filed any application under Section 154(3) CrPC. The

respondent No. 2 also did not file any affidavit.

It appears from the record that in the instant case, neither any affidavit was filed nor there was anything stated in the petition that the applicant

before filing the petition under Section 156(3) CrPC had taken recourse to Section 154(1) and 154(3) CrPC and the learned Magistrate without having

regard to all those aspects mechanically send the complaint directing the police under Sec5tion 156(3) to register the case and as such the impugned

order of the learned Magistrate having passed mechanically without applying his mind is not sustainable.

For the reasons stated above, the impugned order dated 31.07.2017 as well as the FIR registered pursuant to such order in connection with GR

case No. 1373/2017 corresponding to Dergaon P.S. Case No. 496/2017 is quashed. It is however, made clear that this order shall not preclude the

respondent No. 2 to file fresh FIR or to approach court after compliance with the pre-requisite for filing application under Section 156(3) CrPC as

indicated above.

The criminal petition accordingly stands allowed.