Hari Dayal Rai vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the entire criminal proceeding including the order taking cognizance dated 02.05.2017 passed in connection  with  Telco  P.S.  Case  No.  33  of  2016  corresponding  to  G.R. Case No. 228 of 2016 whereby and where under the learned Judicial Magistrate-1st Class,  Jamshedpur  has  taken  cognizance  of  the  offences punishable under Sections 403, 406, 420, 506, 120B, 341 of the Indian Penal Code and issued summons inter alia against the petitioner in connection with the said case.

The allegation against the petitioner is that the petitioner in criminal conspiracy with the co-accused persons deceived the complainant and thereby induced the complainant and the witnesses of  the  case  to  the  tune  of  Rs.17,90,000/-  by  alluring them  to  invest  the same with him with lucrative return which he assured to give them from his financial and trading business. The complainant filed C-1 Case No. 2840 of 2015 which upon being referred to police under Section  156(3)  of  the  Code  of  Criminal  Procedure,  Telco  P.S.  Case  No. 33 of 2016 was registered and police after investigation of the case, submitted charge sheet dated 31.03.2017 in the court and vide order dated 02.05.2017, the learned Judicial Magistrate-1st Class, Jamshedpur, on the basis of the charge sheet submitted, took cognizance of the said offences as already indicated above and passed summoning order. During the investigation of the case, the petitioner was released on bail. The petitioner filed the Criminal Miscellaneous Petition on 03.10.2023.

Learned  counsel  for  the  petitioner  submits  that  the  petitioner  is innocent and has falsely been implicated in this case. The order taking cognizance dated 02.05.2017 is a cryptic and non-speaking order and no reason has been assigned therein. The complaint is not in consonance  with  the  judgment  passed  by  the  Hon’ble  Supreme  Court of India in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287, wherein the Hon’ble Supreme Court of India has held that Section 156(3) of the Code of Criminal Procedure application are to be supported by the affidavit  duly  sworn  by  the  applicant  who  seeks  the  invocation  of  the jurisdiction of the Magistrate and there has to be prior application under Section 154(1) and 154(3) of the Code of Criminal Procedure while filing a petition under Section 156(3) of the Code of Criminal Procedure.

In support of his contention, the learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another reported in 2025 SCC OnLine SC 1575, wherein the Hon’ble Supreme Court of India summed up the conclusion regarding the judgment in  the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) as follows:-

(i) Directions issued in Priyanka Srivastava (supra) are mandatory;

(ii) Guidelines laid down in Priyanka Srivastava (supra) operate prospectively;

(iii) Non-filing of the supporting affidavit is a curable defect, but must be cured before the Magistrate passes any substantive order on the complaint/application, and;

(iv) If the Magistrate proceeds without  the requisite affidavit, such  order/any  consequential  orders/proceedings  can  be quashed on the sole ground of non-compliance with Priyanka Srivastava (supra).

Learned counsel for the petitioner further submits that in this case, the complaint was filed on 15.11.2015. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

Learned Spl.P.P. appearing for the State and the learned counsel for  the  opposite  party  No.2  on  the  other  hand  vehemently  oppose  the prayer of the petitioner made in this Criminal Miscellaneous Petition and submit that this Criminal Miscellaneous Petition has been filed at a belated stage as the petitioner himself has approached the court for bail and he has been granted bail during the pendency of the investigation of the case. So, he was well aware about the complaint being not supported by affidavit but he did not approach this Court any time before 03.10.2023 and at this belated stage, when the investigation of the case is already over and he is absconding for six years and he is not appearing before the learned trial court, he has come to court with malafide intention only  to frustrate the criminal  prosecution. It is next submitted that the principle of law settled in the case of Priyanka Srivastava  &  Another  vs.  State  of  Uttar  Pradesh  &  Others  (supra)  is not applicable to the facts of the case because in this case, the petitioner never filed any application under Section 156(3) of the Code of Criminal  Procedure  and  all  that  has  been  said  in  the  case  of  Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra), relates to the application filed under Section 156(3) of the Code of Criminal Procedure. It is then submitted that this is the case where the learned Magistrate suo moto exercises the power under Section 156(3) of the Code of Criminal Procedure. Hence, at this belated stage when the police  after  investigation of the  case  found  the  allegations  against  the petitioner to be true and has submitted charge sheet; the very purpose for which the observation in the case of Priyanka Srivastava & Another vs. State of  Uttar Pradesh & Others (supra) was  made i.e.  to safeguard the rights of the citizen and to stop to unjust criminal action and filing of vexatious application to settle personal scores, is not attracted;  because  the  police  in  this  case  after  investigation,  found  the allegations  to  be  true  against  the  petitioner,  in  their  entirety.  Hence,  it cannot be said that the complaint is a vexatious one. It is further submitted that the Hon’ble Supreme Court of India has already held that since the Magistrate is competent under Section 156(3) of the Code of Criminal Procedure to direct registration of the FIR, if the allegations disclose commission of a cognizable offence; so, the order passed by the Magistrate would not be without jurisdiction, even if the informant directly moves the Magistrate without exhausting the statutory remedy. It is also submitted by them that in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another (supra), the Hon’ble Supreme Court of India, as a consequence for not following the  guidelines laid  down  in  the  case of  Priyanka  Srivastava & Another vs. State of Uttar Pradesh & Others (supra), has laid down that  such  order/any  consequential  orders  ‘can  be  quashed’  and  it  has not  been  mentioned that  it  ‘shouldbe”or  ‘has  tobe”quashed.  So,  in this case particularly keeping in view of conduct of the petitioner of absconding for six years and coming to court with plea, about which he was  aware  prior  to  six  years  that the  complaint  was  not  supported  by the affidavit, cannot be a ground to quash the entire criminal proceeding. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submission made at the Bar and after carefully going through the materials available in the record, it is pertinent  to  mention  here  that  the  Hon’ble  Supreme  Court  of  India  in the case of in the case of M/s SAS Infratech Pvt. Ltd. Vs. The State of Telangana & Another in Criminal Appeal No.2574 of 2024 dated 14.05.2024 passed in Special Leave Petition (Crl.) No.2123 of 2024 paragraph-9 of which reads as under:-

“9.The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in “Priyanka Srivastava  And  Another  Versus  State  of  Uttar  Pradesh And Others” (2015) 6 SCC 287 to submit that the complaint  filed  by  the  appellant–complainant  was  not supported by an affidavit. In our opinion, the said observation has been made in the said case by way of abundant caution to see that frivolous complaints are avoided.”(Emphasis supplied)

has opined that the observations made in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) has been made in the said case by way of abundant caution to see that frivolous complaints are avoided and in the case of Anurag Bhatnagar & Another v. State (NCT of Delhi) & Another reported in 2025 SCC OnLine SC 1514, para-32 and 33 of which reads as under:-

“32. In the facts and circumstances of the case, as the informant had directly moved the Magistrate under Section 156(3) of the CrPC without exhausting his statutory remedies, the Magistrate could have avoided taking action on the said application and could have refused to direct for the registration of the FIR. However,  as entertaining an application directly by the Magistrate is a mere procedural irregularity and since the Magistrate in a given circumstance is otherwise empowered to pass such an order, the action of the Magistrate may not be illegal or without jurisdiction.

To sum up, the Magistrate ought not to ordinarily entertain an application under Section 156(3) CrPC directly unless the informant has availed and exhausted his remedies provided under Section 154(3) CrPC, but as the Magistrate is otherwise competent under Section 156(3) CrPC to direct the registration of an FIR if the allegations in the application/complaint discloses the commission of a cognizable offence, we are of the opinion that the order so passed by the Magistrate would not be without jurisdiction and would not stand vitiated on this count.”(Emphasis supplied)

The Hon’ble Supreme Court of India, in no uncertain manner, has  held  that  since  the  Magistrate  has  the  power  under  Section  156(3) of the Code of Criminal Procedure, so, a party filing a petition straightway under Section 156(3) without availing the statutory remedies, will not vitiate the entire criminal proceeding.

So far as the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another (supra) is concerned, therein in para-45, the Hon’ble Supreme Court of India has laid down the law regarding the consequence of not following the  guidelines laid  down  in  the  case of  Priyanka  Srivastava & Another vs. State of Uttar Pradesh & Others  (supra) is that if the Magistrate proceeds without the requisites affidavit, such order/any consequential orders/proceedings “can be quashed” but it has not been mentioned that the same ‘shouldbe’quashed or the same ‘has to be’quashed.  The  Hon’ble  Supreme  Court  of  India  in  the  case  of  Shiv Baran  vs.  State  of  U.P.  &  Another  reported in  2025  SCC  OnLine  SC 1457, para-15 of which reads as under:-

The principles that the Trial Court ought to follow while exercising power under this Section are:

(a) This provision is a facet of that area of law which gives protection to victims and society at large, ensuring that the perpetrators of crime should not escape the force of law;

(b) It  is  the  duty  cast  upon  the  Court  not  to  let  the guilty get away unpunished;

(c) The Trial Court has broad but not unbridled power as this power can be exercised only on the basis of evidence adduced before it and not any other material collected during investigation;

(d) The Trial Court is not powerless to summon a person who is not named in the FIR or Chargesheet; they can be impleaded if the evidence adduced inculpates him; (e) This  power is not to be exercised  in  a regular or cavalier manner, but only when strong or cogent evidence is available than the mere probability of complicity;

(f) The degree of satisfaction required is much stricter than the prima facie case, which is needed at the time of framing of charge(s);

(g) The Court should not conduct a mini-trial at this stage as the expression used is ‘such person could be tried’ and not ‘should be tried’.”(Emphasis supplied)

had the occasion to distinguish between the words “could be tried” and “should  be  tried” and  it  has been  mentioned that  when  the word used is ‘could be tried’ and not ‘should be tried’, the court could not conduct a mini trial.

Now coming to the facts of the case, it is crystal clear that the guidelines in the case  of  Priyanka Srivastava  & Another vs. State  of Uttar Pradesh & Others (supra) is regarding application under Section 156(3) of the Code of Criminal Procedure. Now in this case, firstly there is no application under Section 156(3) of the Code of Criminal Procedure filed by the complainant. Rather, it is the suo moto exercise of the power under Section  156(3) of the Code of Criminal Procedure, by the  learned  Judicial  Magistrate  concerned,  on  a complaint  filed  by  the complainant.  The  complainant  himself  has  never  filed  any  application under Section 156(3) of the Code of Criminal Procedure. Secondly, though the petitioner was well aware about the registration of the case based on the complaint being referred to police under Section 156(3) of the Code of Criminal Procedure and during the investigation of the case, he approached the court for being released on bail and thus aware about the absence of affidavit in support of the complaint and the charge  sheet  was  submitted  in  the  year  2017;  but  on  any  day  prior  to 03.10.2023 i.e. for more than six years when he was absconding, the petitioner has not approached any Court of Law regarding quashing the FIR. Thirdly, police after investigation of the case, having found the allegations to be true and having submitted the charge sheet, it cannot be  said  that  this is  a case  involving  unjust  criminal  action  or filing  of vexatious application to settle personal scores; exactly to prevent which, the guidelines has been made in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra).

So far as the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another  (supra)  is  concerned,  certainly  the  same  is  a settled  principle of law but so far as the consequence of the Magistrate proceeding without requisite affidavit, the Hon’ble Supreme Court of India has itself said  that the same ‘canbe’quashed on the sole ground of non- compliance with Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) but the Hon’ble Supreme Court of India has certainly not said that it ‘shallbe’quashed or ‘has tobe’quashed; apparently to deal with the present kind of cases, where the accused person  of  the  case  seeks  invoking  the  jurisdiction  of this  Court  under Section 482 of the Code of Criminal Procedure, belatedly after remaining  absconding  for  six years,  as a tool  to frustrate the  genuine prosecution which allegations were found to be true.

Under  such  circumstances,  this  Court  is  of  the  considered  view that this is not a fit case where the entire criminal proceeding in which after completion of investigation of the case, police finding the allegations against the petitioner to be true, submitted the charge sheet and cognizance has been taken by the learned Judicial Magistrate-1st Class,  Jamshedpur,  is  to  be  quashed  merely  on  a technical  ground;  as agitated by the petitioner, in exercise of its power under Section 482 of the Code of Criminal Procedure; more so when the petitioner approached this Court belatedly after more than six years of being well aware about the said ground.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.