Non-Compliance Of Preconditions Before Ordering Investigation U/S 156(3) CrPC Won't Make Final Report Non-Est: Kerala HC

The Kerala High Court observed that non-compliance of the preconditions before ordering investigation under Section 156(3) CrPC would not make the investigation and the final report thereof non-est. 

The Court was dealing with a criminal miscellaneous case filed under Section 482 of CrPC and the prayer was to quash final report and all proceedings in a case pending before the Judicial First Class Magistrate.

A Single Bench of Justice A. Badharudeen observed, "On reading the facts of the present case where even though compliance of Section 154(1) and 154(3) of Cr.P.C was not established before ordering investigation under Section 156(3), on investigation, a charge alleging commission of the offence punishable under Section 406 of IPC was already filed after detailed investigation. In the instant case also the petitioner did not challenge the proceedings before filing final report by the police. In such a case, in view of the protection under Section 465(2) of Cr.P.C, violation or non-compliance of the preconditions would not make the investigation and the final report thereof non-est. In such view of the matter, the order of cognizance doesn’t require any interference since there is no failure of justice involved."

The Bench also said that the Magistrate should not issue directions without proper application of mind which would be contrary to the object and purpose of the Statute.

Advocate Don Paul appeared in person while Senior Public Prosecutor Renjith George appeared for the respondents.

Facts of the Case -

The petitioner in person was alleged to have committed offence punishable under Section 406 of the Indian Penal Code (IPC). The wife of the petitioner set criminal law in motion under Section 190 read with Sections 200 to 204 of the CrPC before the Magistrate alleging offence under Section 406 IPC by the accused. The allegation in the complaint was that the marriage between parties was solemnised in 2012 and during the marriage proposal, the accused demanded 75 sovereigns of gold ornaments and Rs. 50 lakhs adjusting the same towards the family share of the complainant. Accordingly, Rs. 25 lakhs was handed over on the date of betrothal and another Rs. 25 lakh was kept in fixed deposit in the joint names of the complainant and the accused on condition that the same would only be used for the benefit of the complainant and children to be born in the wedlock.

Further, 75 sovereigns of gold ornaments were also given and the case was that Rs. 25 lakhs were deposited at Co-operative Bank, by 25 separate fixed deposit receipts each of Rs.1 lakh, in the joint names of the complainant and the accused. It was alleged that the gold ornaments were entrusted with the accused as trustees. The specific allegation was that the F.D receipts of 25 Nos. (Rs.1 lakh each) were encashed by the accused without the knowledge and consent of the complainant and thereby committed breach of trust. Further, the gold ornaments were also misappropriated. Police investigated the crime as directed by the Magistrate under Section 156(3) of Cr.P.C and Annexure B final report was filed alleging commission of offence under Section 406 of IPC by the accused.

The High Court in view of the facts and circumstances of the case noted, “In as much as the challenge raised by the petitioner on the ground that there are no materials to attract offence under Section 406 of IPC is concerned, the available materials are sufficient to hold that prima facie offence under Section 406 of IPC is made out warranting trial of the accused.”

Adverting to the controversy, the questions arose before the Court were:

1) What are the preconditions to be satisfied before seeking investigation under Section 156(3) of Cr.P.C, before a Magistrate?

2) If violation of the preconditions would make the investigation and final report thereof non-est?

The Court in that regard answered that the following preconditions are to be satisfied before seeking investigation under Section 156(3) CrPC before a Magistrate –

“1) Where applications under Section 156(3) of Code of Criminal Procedure are to be supported by an affidavit duly sworn by the complainant who seeks the invocation of the jurisdiction of the Magistrate.

2) In an appropriate case, the learned Magistrate would be well advised to verify the truth and also verify the veracity of the allegations.

3) Prior to the filing of a petition under Section 156(3) of the Code of Criminal Procedure, there have to be applications under Section 154(1) and 154(3) of the Code of Criminal Procedure.”

“Reiterating Lalita Kumari (supra), it was observed that an action under S.156(3) should not be entertained without the complainant taking recourse to sub-section (1) and (3) of S.154 and compliance of these two Sections should be clearly spelt out in the application and necessary documents filed. To check malevolence and false assertions, the Court directed that every petition/application under S.156(3) should be supported by an affidavit so that the person making an application should be conscious of it and to see that no false allegation is made. If the affidavit is found to be false, the complainant will be liable for prosecution in accordance with the law.", it observed. 

The Court added that vigilance is specially required in cases pertaining to fiscal sphere, matrimonial/family disputes, commercial offences, medical negligence cases, corruption cases, or cases where there is abnormal delay/laches and thus, the Magistrate must be attentive and proceed with perspicacity to examine the allegation made and the nature of those allegations.

Accordingly, the High Court dismissed the criminal miscellaneous case and directed the Magistrate to expedite the trial and disposal of case within 4 months.

Cause Title- Don Paul v. State of Kerala & Ors. (Neutral Citation: 2024:KER:33170)

Appearance:

Petitioner: Advocate Don Paul

Respondents: Senior Public Prosecutor Renjith George, Advocates Abraham P. George, C.C. Anoop, and M. Santhy.

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