IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH

THE HON’BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

CRIMINAL PETITION NO.201319/2019

DATED: 18-02-2020

C.M. Aleemullakhan and Another vs. The State of Karnataka

Through Gandi Gunj P.S. Bidar and Another

ORDER

The summary of the case of the prosecution is

that the second respondent, as a complainant, has

filed a private complaint under section 200 of Code of

Criminal Procedure, 1973 (hereinafter for brevity

referred to as ‘Cr.P.C.’) against the present petitioners

arraigning them as accused Nos.1 and 2, in

P.C.No.109/2014 in the Court of the learned I-

Additional JMFC (II) at Bidar (hereinafter for brevity

referred to as ‘trial Court’) alleging that the accused

by publishing a defamatory article in an Urdu

newspaper by name “Salar”, being published from

Hubli of this State, has defamed his reputation and

thereby has committed an offence punishable under

section 500 of Indian Penal Code, 1860 (hereinafter

for brevity referred to as ‘IPC’).

 The complainant in the trial Court got himself

examined as CW-1 and examined one more witness as

PW-2 from his side and got marked documents as

Exs.C1, C1(a), C2 and P2(a). The trial Court, by its

order dated 28.04.2016, has taken cognizance of the

offence punishable under section 500 of IPC and

issued process to the accused for the alleged offence.

It is the said order, the accused in the trial Court have

challenged in this petition seeking quashing of the

entire proceeding in the Court below.

2. Learned counsel for the petitioners, in his

argument, canvassed only on one point that the

private complaint filed by the complainant in the Court

below under section 200 of Cr.P.C. was not

accompanied with an affidavit, as such, in the light of

the judgment of the Hon’ble Apex Court in the case of

Priyanka Srivastava and another vs. State of

Uttar Pradesh and others reported in (2015) 6

SCC 287, the complaint is not maintainable, as such,

it deserves to be quashed.
 3. Learned High Court Government Pleader, in

his argument, submitted that in the circumstances of

the case, filing of such an affidavit by the complainant

along with the complaint under section 200 of Cr.P.C.

is not required.

4. The second respondent, who is the

complainant, though was served with the notice, has

remained absent.

Admittedly, the private complaint filed by the

complainant/respondent No.2 was under section 200

of Cr.P.C. and it was unaccompanied with any

affidavit. The learned counsel for the petitioners drew

the attention of this Court to paragraph Nos.29, 30

and 31 in the judgment of Priyanka Srivastava’s case

(supra) which reads as below:

“29. At this stage it is seemly to state

that 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 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 fellow citizens, efforts are
to be made to scuttle and curb the same.

30. In our considered opinion, 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. That apart, 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. We are
compelled to say so as such kind of
applications are being filed in a routine manner
without taking any responsibility whatsoever
only to harass certain persons. That apart, 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 the 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 somebody is
determined to settle the scores.

31. We have already indicated that

there has to be prior applications under
Sections 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 application under Section 156
(3) be supported by an affidavit is 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). That
apart, we have already stated that the veracity
of the same can also be verified by the learned
Magistrate, regard being had to the nature of
allegations of the case. We are compelled to
say so as 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.”

5. Learned counsel for the petitioners also

places photo copies of an order of Co-ordinate Bench

of this Court in Sri M.P.Renukacharya and others

vs. State of Karnataka and another in Criminal

Petition No.3431/2015 dated 04.09.2015 and

another order of another Co-ordinate Bench in

Sri Abdulla M and others vs. B.P. Rajeevlochanna

in Criminal Petition No.5212/2016 dated

11.12.2019 and submitted that in those cases also

the Co-ordinate Bench of this Court have consistently

held that the complaint unaccompanied with the

affidavit deserves to be quashed.

6. A careful reading of Priyanka Srivastava’s

case (supra), more particularly, paragraph Nos.29, 30

and 31, towards which the attention of this Court was

drawn by the learned counsel for the petitioners, would go to

show that the Hon’ble Apex Court has made an observation that

in those matters where the petition has been filed under section

156(3) of Cr.P.C., which necessarily would precede by sections

154 (1) and 154 (3) of Cr.P.C., there must be an affidavit

accompanying the complaint. The said affidavit would be a

supportive affidavit to the complaint, so that the person making

the application under section 156 (3) of Cr.P.C. 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. By observing

so, the Hon’ble Apex Court has made it clear that once an

investigation is ordered under section 156 (3) of Cr.P.C., the

Court must be satisfied that the complainant is serious about

the complaints/ allegations made by him in his complaint

which can only be ascertained through an affidavit filed by the

complainant accompanying the complaint, so that the process of

investigation by investigating agency shall not be misused or

taken for granted by thecomplainant.

With great respect to the said judgment, it is

submitted that the said judgment was in a case where

based upon the complaint, a police investigation was

ordered under section 156 (3) of Cr.P.C. However,

the said judgment appears to have not discussed the

aspect where the Magistrate without referring the

matter for any investigation under section 156 (3) of

Cr.P.C. proceeds himself in examining the complainant

and the witnesses produced by him and also the

exhibits marked by them in support of their complaint

and thereafter proceeds to make an order regarding

taking of cognizance.

In the instant case, as already observed above,

though the complaint which was filed under section

200 of Cr.P.C. was unaccompanied with an affidavit,

but the fact remains that the complainant got himself

examined and got examined one more witness on his

behalf as PW-2 and got marked documents Exs.C1,

C1(a), C2 and P2(a). It is only thereafter the trial

Court, after analysing the evidence of the complainant

in the form of a sworn statement and the evidence of

PW-2, who was examined on behalf of the

complainant and examining the documents marked as

exhibits, found material in registering the case in

Register No.III and taking cognizance of the offence.

As such, it proceeded to pass the impugned order.

Therefore, the question of the trial Court referring the

matter to the investigation under section 156 (3) of

Cr.P.C. has not arisen in the instant case.

7. In that view of the matter, since there is no

order for investigation under section 156 (3) of

Cr.P.C., in my view, the question of non-filing of an

affidavit along with the complaint would not nullify the

effect of the complaint or making complaint

redundant. As such, the argument of the learned

counsel for the petitioner that in view of Priyanka

Srivastava’s case (supra), an affidavit accompanying

the complaint was mandatory even in the present

case, is not acceptable.

 8. A Co-ordinate Bench of this Court in M.P.

Renukacharya’s case (Criminal Petition No.3431/2015)

(supra), after referring to Priyanka Srivastava’s case,

has quashed the FIR and consequential proceeding

challenged before it, however, reserving liberty to the

complainant to pursue his complaint in accordance

with the procedure laid down by the Apex Court. It is

to be observed that in the said case, based upon the

complaint filed under section 200 of Cr.P.C. which was not

accompanied with any affidavit, the Magistrate had directed for

investigation to the Superintendent of Police, Lokayukta,

Davangere, under section156 (3) of Cr.P.C. vide his order dated

02.05.2014. Since there was invocation of section 156 (3) of

Cr.P.C., probably the Co-ordinate Bench has applied the

principle laid down by their Lordships in Priyanka Srivastava’s

case (supra) and passed the order quashing the FIR. Since the

present case on hand differs from the one, as in the present

case the Magistrate did not refer the complaint for its

investigation under section 156 (3) ofCr.P.C., I do not think that

the finding given in M.P. Renukacharya’s case (supra) would

have any bearing or influence on the present complaint.

Similarly, in M. Abdulla’s case (supra) (Criminal

Petition No.5212/2016) another Co-ordinate Bench of

this Court also has allowed the petition by quashing

cognizance taken by the trial Court in a private complaint after

relying the judgment of Hon’ble Apex Court in Priyanka

Srivastava’s case. However, from a perusal of the photo copy of

the order passed in the said M. Abdulla’s case (supra), since it

cannot be made out as to whether any investigation was

ordered under section 156 (3) of Cr.P.C. in the said case, it

cannot be held that the said M. Abdulla’s case (supra) was

similar in the circumstances of the case, as the one on hand. As

such, the said judgment also would not enure to the benefit of

the present petitioners.

9. Consequently, I am of the view that since the

trial Court has taken cognizance of the offence and

ordered for registering the case in Register No.III,

only after satisfying itself that prima facie there are

material to take cognizance of the alleged offence,

that too, after going through the sworn statement

given by the complainant and the evidence given by

PW-2 and also after perusing the documents marked as Exs.C1,

C1(a), C2 and P2(a), I do not find any irregularity or illegality in

the same. As such, the only ground of contention urged by the

learned counsel for the petitioners is not acceptable.

Consequently, I do not find any merit for admitting this petition.

 Resultantly, the criminal petition stands

dismissed.