Sec.156(3) CrPC | Prior Applications Must Be Made U/S. 154(1),154(3) & Necessary Documents As Well As Affidavits Must Be Annexed: Jammu & Kashmir & Ladakh High Court

The petitioners challenged an order passed by the Principal Sessions Judge, Jammu(Revisional Court), in which a revision petition filed against the order of the Special Excise Magistrate, Jammu(Trial Magistrate), had been allowed, and the SHO Police Station, Channi Himmat, Jammu, was directed to register an FIR on the basis of the complaint filed against the petitioners.

The Single Bench of Justice Sanjay Dhar said, “As per the case of the complainant, it was his elder sister who approached the Incharge Police Station, Channi Himmat with a report relating to the incident but affidavit of elder sister of the complainant has not been annexed with the complaint to certify this fact. Apart from this, as per the ratio laid down by the Apex Court in Priyanka Shrivastava’s case(supra), the complainant has not only to indicate that he has made a prior application under section 154(1) and 154(3) Cr.P.C. but he has also to annex necessary documents to that effect. In the instant case, even if, it is assumed that an oral complaint was made by the sister of the complainant with the Incharge Police Station neither any affidavit of the said person nor any document to show that she had lodged any complaint with Police Station, Channi Himmat, has been placed on record by the complainant.”

"In the instant case, even if, it is assumed that an oral complaint was made by the sister of the complainant with the Incharge Police Station neither any affidavit of the said person nor any document to show that she had lodged any complaint with Police Station, Channi Himmat, has been placed on record by the complainant. Thus, clearly the complainant has not adhered to the provisions contained in section 154(1) Cr.PC in the present case", it further added.

Advocate Himanshu Beotra represented the Petitioner, while Dy.AG P. D. Singh represented the Respondent.

Factual Background

It was alleged that when the respondent-complainant had gone to his office, the petitioners yelled at him, calling him a thief, and they alleged that the complainant had misappropriated the firm's funds. It was alleged that the complainant was overpowered by the petitioners as well as other employees of the firm, and he was dragged into a room where he was wrongfully confined and brutally beaten by them. It was conveyed to the complainant that he, along with two more employees, had misappropriated the funds of the firm from June 2020 onwards and that the other two employees had already admitted their guilt and refunded the money.

The complainant was allegedly coerced into signing certain documents. It was alleged in the complaint that the in charge of the said Police Station informed the first petitioner about the complaint lodged by the sister of the complainant, but because of the influence of the petitioners, the Police did not act. It was further alleged that no legal action was taken by the Police despite receipt of a written application. With the aforesaid allegations, the complaint came to be filed before the Trial Magistrate but the same was dismissed. It was observed that the complainant had not adhered to the provisions of law as contained in section 154(1) and 154(3) of the Code of Criminal Procedure(Cr.P.C.). The Petitioner’s Revision Petition was allowed, and the Police were directed to register an FIR against the petitioners. Aggrieved thereby, the petitioners approached the High Court.

Reasoning

The Bench explained that section 154(1) of the Code mandates an officer in charge of the Police Station to reduce into writing every information relating to the commission of a cognizable offence. Subsection (2) provides that a copy of such information shall be furnished to the informant free of cost. Sub section (3) provides that a person aggrieved by refusal on the part of the officer incharge of a Police Station to record information as referred to in sub section (1), has the option of sending the substance of such information in writing and by post to Senior Superintendent of Police concerned and if the SSP is satisfied that the information discloses commission of a cognizable offence, he has to either investigate the case himself or direct investigation to be made by a subordinate police officer.

Referring to the judgment of the Supreme Court in Priyanka Shrivastava vs. U. P and others (2015), the Bench noted that the complainant has not only to indicate that he has made a prior application under section 154(1) and 154(3) Cr.P.C. but he has also to annex necessary documents to that effect. In the instant case, even if an oral complaint was made by the sister of the complainant with the Incharge Police Station, neither any affidavit of the said person nor any document to show that she had lodged any complaint with the Police Station had been placed on record by the complainant. Thus, the complainant had not adhered to the provisions contained in section 154(1) Cr.PC.

It was noticed that in the communication addressed to the SSP, both the applicants had essentially made a prayer before the SSP concerned seeking action against the petitioners for illegally retaining the vehicles belonging to them, though the applicants had also referred in the said application to the incident of obtaining cheques from the complainant under coercion. However, there were are no averments in the said application about the material incidents which were highlighted by the complainant in his complaint presented before the trial Magistrate.

There was no mention of allegations regarding the illegal confinement of the complainant or illegal confinement of his father-in-law, nor was there any mention of beating up and dragging of the complainant by the petitioners. Thus, the provisions of requirements of section 154(3) had not been strictly complied with. On a perusal of the facts of the case, the Bench said, “From the above sequence of events, it is clear that the respondent/complainant has, after sleeping over the matter for about seven months and without approaching the Police Authorities, filed the complaint before the learned Trial Magistrate that too without adhering to the provisions contained in section 154(1) and 154(3) of the CrPC, which have been held to be mandatory. Any direction for registration of FIR in contravention of these requirements cannot be sustained in law.”

It was further noticed that the direction of the revisional court for registration of the said FIR without adherence to the provisions contained in section 154(1) and 154(3) Cr.P.C. was not in accordance with law therefore, the impugned FIR couldn’t be sustained. “From the manner in which the respondent/complainant has proceeded to launch prosecution against the petitioners, it clearly reflects that it is a brazen attempt on his part to persecute the petitioners, as a counterblast to the criminal challan as well as criminal complaints filed against him at the instance of the petitioners. The allegations made in the impugned FIR are absurd and inherently improbable. The criminal prosecution initiated by the respondent/complainant against the petitioners is manifestly actuated with mala fides with an ulterior motive for wrecking vengeance against the petitioners.”

Thus, allowing the petition, the Bench set aside the impugned order of the Revisional Court.

Cause Title: Anil Gupta and another v. Union Territory of J&K and another (Case No.: CRM(M) No. 646/2023)

Appearance:

Petitioner: Advocate Himanshu Beotra

Respondent: Dy.AG P. D. Singh, Advocate Bhavesh Bhushan

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