Babu Venkatesh and Ors. Versus State of Karnataka and Anr. Criminal appeal No. 252 of 2022. In a case where the Magistrate had passed an order under Section 156(3) CrPC even in absence of an affidavit duly sworn by the complainant, the bench of Justice BR Gavai and Krishna Murari, many a times the applications under Section 156(3) of the CrPC are filed in a routine manner without taking any responsibility only to harass certain persons and hence such applications are to be supported by affidavits.
The parties entered into various Agreements for Sale with respect to properties situated at Bangalore. It is the case of the appellants that, after receipt of the payments, respondent was avoiding to get the Sale-Deed registered. The respondent filed a complaint, almost after a period of two years from the date of institution of suits by the appellants, and almost after a period of one and a half year from the date on which written statement was filed by respondent, making allegations of cheating. The allegations in the complaint were basically that the appellant no.1 who is the son of appellant no. 2 and 3, had obtained blank stamp papers from the respondents and created Agreements for Sale by misusing the said blank stamp papers. It is the case of the respondent that, the appellants committed forgery and cheated them, and as such they are liable for punishment for offences punishable under Sections 420,464,465,468 and 120-B IPC. The magistrate ordered:
“In the complaint, the complainant has made serious allegations against the accused persons. Therefore, it appears this court that, it is just and proper to refer the matter to the jurisdiction police for investigate and submit report.”
On writ filed by appellants u/s 482 CrPC before the Karnataka High Court with the main contention that order under Section 156(3) CrPC was passed in a mechanical manner by Additional Chief Metropolitan Magistrate. Further submitted the Magistrate was required to apply his mind before passing an order since the application was not supported by an affidavit duly sworn by the complainant, the learned magistrate could not have passed an order under Section 156(3) CrPC. The appellants further submitted that, the dispute was purely civil in nature and the criminal complaint was filed by the respondents only to harass the appellants. The single judge of the high court dismissed the petition on the ground that, serious allegations of cheating and forgery were shown in the complaint and as such no case was made out for quashing of the FIRs.
The supreme court relying on the judgement in Priyanka Srivastava and Anr. v. State of uttar Pradesh and Others (2015) 6 SCC 287, stated unless an application under section 156(3) CrPC was supported by an affidavit duly sworn by the complainant, the Magistrate could not have passed an order under the said provision. The apex court was of the opinion that, though power to quash criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest or rare cases, there are certain category of cases wherein such power can be exercised for quashing of proceedings.
Justice Gavai highlighted that the present case fits under the category as mentioned in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, it was laid down:
“Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
In the case at hand, since the complaint was filed almost after a period of two years from the date of institution of suits by the appellants, the court held that continuation of the present proceedings would amount to nothing but an abuse of process of law. Accordingly, the apex court set aside the judgement of the High Court and concluded that the continuation of the present proceedings would amount to nothing but an abuse of process of law.
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