- Where a jurisdiction is exercised on a complaint filed in terms of Section 156 (3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156 (3) against a public servant without a valid sanction order.
- The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient.
- After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156 (3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
Section 156 (3) Cr.P.C.
In a more recent case of Priyanka Srivastava & Anr. vs. State of U.P (CRIMINAL APPEAL NO.781 OF 2012) the Apex Court after considering its previous pronouncements has held that :
- Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind.
- He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order.
- 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 fellows citizens, efforts are to be made to scuttle and curb the same.
To seek FIR from court, submitting affidavit must
- A stage has come in this country where Section 156 (3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate.
- 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.
- Such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons.
- 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 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 some body is determined to settle the scores.
- There has to be prior applications under Section 154 (1) 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 the application under Section 156 (3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made.
- It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156 (3).
- The veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case.
- A number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.
After having considered the aforesaid principles, the Division Bench of Bombay High Court in Pandharinath Narayan Patil & Ors. Vs. State of Maharashtra & Anr. in criminal writ petition no.4775 of 2014 has held that-
“The powers under section 156(3) of the Code cannot be exercised mechanically but are required to be exercised judiciously. The Magistrate is not required to embark upon an in-depth roving enquiry as to the reliability or genuineness of the allegations, nonetheless, he has to arrive at a conclusion that the application discloses necessary ingredients of the offence for which investigation is intended to be ordered. Furthermore, the reasons for arriving at such conclusion should be clearly reflected in the order.”