Sanchayita Lahkar

The High Court of Orissa Single Bench of Justice Chittaranjan Dash has held that a complaint filed under Section 156(3) of the Code of Criminal Procedure (Cr.P.C.) without a duly sworn affidavit of the complainant suffers from a fatal procedural defect. The Court directed that in the absence of such an affidavit, the complaint could not have been acted upon and the Magistrate’s order directing registration of the FIR suffered from a jurisdictional error. Consequently, the Court set aside the judgments of the lower courts, quashed all proceedings arising from the complaint, and clarified that the complainant is at liberty to approach the appropriate court afresh in accordance with law by complying with the procedural requirements laid down by the Supreme Court.

The matter arose from a complaint filed by the Branch Manager of Kotak Mahindra Bank Ltd. before the Sub-Divisional Judicial Magistrate (S.D.J.M.), Sundargarh, seeking action under Section 156(3) Cr.P.C. The complainant prayed for cognizance of offences and a direction to the police to register an FIR and investigate. The S.D.J.M., pursuant to the complaint, directed the Town Police Station, Sundargarh, to register the FIR and conduct an investigation. The Investigating Officer thereafter registered the FIR, conducted the investigation, and filed a charge sheet against the accused, implicating them under Sections 406, 420, 201, and 34 of the Indian Penal Code (IPC).

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The accused approached the S.D.J.M. with a discharge petition under Section 239 Cr.P.C., contending that the complaint under Section 156(3) Cr.P.C. was not accompanied by the mandatory affidavit as required by the Supreme Court in Priyanka Srivastava v. State of U.P. The petitioners argued that this omission rendered the entire proceedings void ab initio, as the Magistrate’s direction to register the FIR was issued without jurisdiction. The S.D.J.M. rejected the discharge application, finding sufficient grounds to proceed to trial. The petitioners then filed a revision before the Additional Sessions Judge, Sundargarh, who upheld the S.D.J.M.’s decision.

Before the High Court, the petitioners reiterated their contention regarding non-compliance with the affidavit requirement, submitting that the safeguard was mandatory and not a mere formality. They argued that in the absence of the affidavit, the complaint could not be acted upon and all subsequent proceedings were invalid. The State, through the Additional Standing Counsel, contended that the omission was a mere technicality that did not vitiate the entire process, particularly as the investigation had been completed and a charge sheet filed.

The Court recorded that "the very foundation of the criminal proceeding initiated against the Petitioner is vitiated on account of non-compliance with the mandatory procedural requirement laid down by the Hon’ble Supreme Court in Priyanka Srivastava vs. State of U.P. and Others." It referred to the principle that the affidavit is not a formality but a safeguard against abuse of the criminal process.

Citing the Supreme Court's decision in S.N. Vijayalakshmi & Ors. v. State of Karnataka & Anr., the Court noted that "the requirement under Priyanka Srivastava is to safeguard the rights of the citizenry and to put a stop to unjust criminal action and filing of vexatious applications to settle personal scores." It recorded that the Supreme Court had held such a requirement mandatory, although a curable defect if remedied before the Magistrate passes a substantive order.

The Court further stated that "the object behind requiring an affidavit is not merely formal or technical" and that the safeguard ensures the complainant is personally answerable for the truth of allegations. It observed that where no affidavit was filed at all, the safeguard had been completely bypassed, striking at the legitimacy of the Magistrate’s act of directing registration of the FIR.

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It concluded that "in the absence of such an affidavit, the complaint could not have been acted upon, and the order of the learned Magistrate directing registration of the FIR suffers from a jurisdictional error."

The Court allowed the petition, stating: "Accordingly, the CRLMP is allowed. The impugned judgment dated 27.07.2024 passed by the learned Addl. Sessions Judge, Sundargarh in Criminal Revision No. 05/01 of 2024, as well as the order dated 01.05.2024 passed by the learned S.D.J.M., Sundargarh in G.R. Case No. 696 of 2015, are hereby set aside." It further ordered: "As a result, the proceedings initiated pursuant to the complaint in ICC No. 126 of 2015 and the consequential G.R. Case No. 696 of 2015 shall stand quashed."

The Court clarified: "However, it is made clear that this order shall not preclude Opposite Party No. 2 from approaching the appropriate court afresh, in accordance with law, by duly complying with the procedural requirements laid down by the Hon’ble Supreme Court."

Advocates Representing the Parties:

For the Petitioner: Mr. D.K. Mohapatra, Advocate

For the Respondents: Mr. A.K. Apat, Additional Standing Counsel

Case Title: Hari Shankar Patnaik v. State of Orissa and Others

Case Number: CRLMP No. 1448 of 2024

Bench: Justice Chittaranjan Dash