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2026 DAILYLAW 20989 (JHR)

Hari Dayal Rai v. State of Jharkhand

2026-01-12

Anil Kumar Choudhary

body2026
JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the entire criminal proceeding including the order taking cognizance dated 02.05.2017 passed in connection with Telco P.S. Case No. 33 of 2016 corresponding to G.R. Case No. 228 of 2016 whereby and where under the learned Judicial Magistrate-1st Class, Jamshedpur has taken cognizance of the offences punishable under Sections 403, 406, 420, 506, 120B, 341 of the Indian Penal Code and issued summons inter alia against the petitioner in connection with the said case. 3. The allegation against the petitioner is that the petitioner in criminal conspiracy with the co-accused persons deceived the complainant and thereby induced the complainant and the witnesses of the case to the tune of Rs.17,90,000/- by alluring them to invest the same with him with lucrative return which he assured to give them from his financial and trading business. The complainant filed C-1 Case No. 2840 of 2015 which upon being referred to police under Section 156(3) of the Code of Criminal Procedure, Telco P.S. Case No. 33 of 2016 was registered and police after investigation of the case, submitted charge sheet dated 31.03.2017 in the court and vide order dated 02.05.2017, the learned Judicial Magistrate-1st Class, Jamshedpur, on the basis of the charge sheet submitted, took cognizance of the said offences as already indicated above and passed summoning order. During the investigation of the case, the petitioner was released on bail. The petitioner filed the Criminal Miscellaneous Petition on 03.10.2023. 4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case. The order taking cognizance dated 02.05.2017 is a cryptic and non-speaking order and no reason has been assigned therein. During the investigation of the case, the petitioner was released on bail. The petitioner filed the Criminal Miscellaneous Petition on 03.10.2023. 4. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been implicated in this case. The order taking cognizance dated 02.05.2017 is a cryptic and non-speaking order and no reason has been assigned therein. The complaint is not in consonance with the judgment passed by the Hon’ble Supreme Court of India in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others reported in (2015) 6 SCC 287 , wherein the Hon’ble Supreme Court of India has held that Section 156(3) of the Code of Criminal Procedure application are to be supported by the affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate and there has to be prior application under Section 154(1) and 154(3) of the Code of Criminal Procedure while filing a petition under Section 156(3) of the Code of Criminal Procedure. 5. In support of his contention, the learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another reported in 2025 SCC OnLine SC 1575, wherein the Hon’ble Supreme Court of India summed up the conclusion regarding the judgment in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) as follows:- (i) Directions issued in Priyanka Srivastava (supra) are mandatory; (ii) Guidelines laid down in Priyanka Srivastava (supra) operate prospectively; (iii) Non-filing of the supporting affidavit is a curable defect, but must be cured before the Magistrate passes any substantive order on the complaint/application, and; (iv) If the Magistrate proceeds without the requisite affidavit, such order/any consequential orders/proceedings can be quashed on the sole ground of non-compliance with Priyanka Srivastava (supra). 6. Learned counsel for the petitioner further submits that in this case, the complaint was filed on 15.11.2015. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 7. 6. Learned counsel for the petitioner further submits that in this case, the complaint was filed on 15.11.2015. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 7. Learned Spl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in this Criminal Miscellaneous Petition and submit that this Criminal Miscellaneous Petition has been filed at a belated stage as the petitioner himself has approached the court for bail and he has been granted bail during the pendency of the investigation of the case. So, he was well aware about the complaint being not supported by affidavit but he did not approach this Court any time before 03.10.2023 and at this belated stage, when the investigation of the case is already over and he is absconding for six years and he is not appearing before the learned trial court, he has come to court with malafide intention only to frustrate the criminal prosecution. It is next submitted that the principle of law settled in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) is not applicable to the facts of the case because in this case, the petitioner never filed any application under Section 156(3) of the Code of Criminal Procedure and all that has been said in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra), relates to the application filed under Section 156(3) of the Code of Criminal Procedure. It is then submitted that this is the case where the learned Magistrate suo moto exercises the power under Section 156(3) of the Code of Criminal Procedure. Hence, at this belated stage when the police after investigation of the case found the allegations against the petitioner to be true and has submitted charge sheet; the very purpose for which the observation in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) was made i.e. to safeguard the rights of the citizen and to stop to unjust criminal action and filing of vexatious application to settle personal scores, is not attracted; because the police in this case after investigation, found the allegations to be true against the petitioner, in their entirety. Hence, it cannot be said that the complaint is a vexatious one. It is further submitted that the Hon’ble Supreme Court of India has already held that since the Magistrate is competent under Section 156(3) of the Code of Criminal Procedure to direct registration of the FIR, if the allegations disclose commission of a cognizable offence; so, the order passed by the Magistrate would not be without jurisdiction, even if the informant directly moves the Magistrate without exhausting the statutory remedy. It is also submitted by them that in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another (supra), the Hon’ble Supreme Court of India, as a consequence for not following the guidelines laid down in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra), has laid down that such order/any consequential orders ‘can be quashed’ and it has not been mentioned that it ‘should be” or ‘has to be” quashed. So, in this case particularly keeping in view of conduct of the petitioner of absconding for six years and coming to court with plea, about which he was aware prior to six years that the complaint was not supported by the affidavit, cannot be a ground to quash the entire criminal proceeding. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 8. Having heard the rival submission made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that the Hon’ble Supreme Court of India in the case of in the case of M/s SAS Infratech Pvt. Ltd. Vs. The State of Telangana & Another in Criminal Appeal No.2574 of 2024 dated 14.05.2024 passed in Special Leave Petition (Crl.) No.2123 of 2024 paragraph-9 of which reads as under:- “9. The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in “Priyanka Srivastava And Another Versus State of Uttar Pradesh And Others” (2015) 6 SCC 287 to submit that the complaint filed by the appellant – complainant was not supported by an affidavit. The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in “Priyanka Srivastava And Another Versus State of Uttar Pradesh And Others” (2015) 6 SCC 287 to submit that the complaint filed by the appellant – complainant was not supported by an affidavit. In our opinion, the said observation has been made in the said case by way of abundant caution to see that frivolous complaints are avoided.” (Emphasis supplied) has opined that the observations made in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) has been made in the said case by way of abundant caution to see that frivolous complaints are avoided and in the case of Anurag Bhatnagar & Another v. State (NCT of Delhi) & Another reported in 2025 SCC OnLine SC 1514, para-32 and 33 of which reads as under:- “32. In the facts and circumstances of the case, as the informant had directly moved the Magistrate under Section 156(3) of the CrPC without exhausting his statutory remedies, the Magistrate could have avoided taking action on the said application and could have refused to direct for the registration of the FIR. However, as entertaining an application directly by the Magistrate is a mere procedural irregularity and since the Magistrate in a given circumstance is otherwise empowered to pass such an order, the action of the Magistrate may not be illegal or without jurisdiction. 33. To sum up, the Magistrate ought not to ordinarily entertain an application under Section 156(3) CrPC directly unless the informant has availed and exhausted his remedies provided under Section 154(3) CrPC, but as the Magistrate is otherwise competent under Section 156(3) CrPC to direct the registration of an FIR if the allegations in the application/complaint discloses the commission of a cognizable offence, we are of the opinion that the order so passed by the Magistrate would not be without jurisdiction and would not stand vitiated on this count.” (Emphasis supplied) The Hon’ble Supreme Court of India, in no uncertain manner, has held that since the Magistrate has the power under Section 156(3) of the Code of Criminal Procedure, so, a party filing a petition straightway under Section 156(3) without availing the statutory remedies, will not vitiate the entire criminal proceeding. 9. 9. So far as the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another (supra) is concerned, therein in para-45, the Hon’ble Supreme Court of India has laid down the law regarding the consequence of not following the guidelines laid down in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) is that if the Magistrate proceeds without the requisites affidavit, such order/any consequential orders/proceedings “can be quashed” but it has not been mentioned that the same ‘should be’ quashed or the same ‘has to be’ quashed. The Hon’ble Supreme Court of India in the case of Shiv Baran vs. State of U.P. & Another reported in 2025 SCC OnLine SC 1457, para-15 of which reads as under:- 15. The principles that the Trial Court ought to follow while exercising power under this Section are: (a) This provision is a facet of that area of law which gives protection to victims and society at large, ensuring that the perpetrators of crime should not escape the force of law; (b) It is the duty cast upon the Court not to let the guilty get away unpunished; (c) The Trial Court has broad but not unbridled power as this power can be exercised only on the basis of evidence adduced before it and not any other material collected during investigation; (d) The Trial Court is not powerless to summon a person who is not named in the FIR or Chargesheet; they can be impleaded if the evidence adduced inculpates him; (e) This power is not to be exercised in a regular or cavalier manner, but only when strong or cogent evidence is available than the mere probability of complicity; (f) The degree of satisfaction required is much stricter than the prima facie case, which is needed at the time of framing of charge(s); (g) The Court should not conduct a mini-trial at this stage as the expression used is ‘such person could be tried’ and not ‘should be tried’.” (Emphasis supplied) had the occasion to distinguish between the words “could be tried” and “should be tried” and it has been mentioned that when the word used is ‘could be tried’ and not ‘should be tried’, the court could not conduct a mini trial. 10. 10. Now coming to the facts of the case, it is crystal clear that the guidelines in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) is regarding application under Section 156(3) of the Code of Criminal Procedure. Now in this case, firstly there is no application under Section 156(3) of the Code of Criminal Procedure filed by the complainant. Rather, it is the suo moto exercise of the power under Section 156(3) of the Code of Criminal Procedure, by the learned Judicial Magistrate concerned, on a complaint filed by the complainant. The complainant himself has never filed any application under Section 156(3) of the Code of Criminal Procedure. Secondly, though the petitioner was well aware about the registration of the case based on the complaint being referred to police under Section 156(3) of the Code of Criminal Procedure and during the investigation of the case, he approached the court for being released on bail and thus aware about the absence of affidavit in support of the complaint and the charge sheet was submitted in the year 2017; but on any day prior to 03.10.2023 i.e. for more than six years when he was absconding, the petitioner has not approached any Court of Law regarding quashing the FIR. Thirdly, police after investigation of the case, having found the allegations to be true and having submitted the charge sheet, it cannot be said that this is a case involving unjust criminal action or filing of vexatious application to settle personal scores; exactly to prevent which, the guidelines has been made in the case of Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra). 11. 11. So far as the judgment of the Hon’ble Supreme Court of India in the case of S.N. Vijayalakshmi & Others vs. State of Karnataka & Another (supra) is concerned, certainly the same is a settled principle of law but so far as the consequence of the Magistrate proceeding without requisite affidavit, the Hon’ble Supreme Court of India has itself said that the same ‘can be’ quashed on the sole ground of non- compliance with Priyanka Srivastava & Another vs. State of Uttar Pradesh & Others (supra) but the Hon’ble Supreme Court of India has certainly not said that it ‘shall be’ quashed or ‘has to be’ quashed; apparently to deal with the present kind of cases, where the accused person of the case seeks invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, belatedly after remaining absconding for six years, as a tool to frustrate the genuine prosecution which allegations were found to be true. 12. Under such circumstances, this Court is of the considered view that this is not a fit case where the entire criminal proceeding in which after completion of investigation of the case, police finding the allegations against the petitioner to be true, submitted the charge sheet and cognizance has been taken by the learned Judicial Magistrate-1st Class, Jamshedpur, is to be quashed merely on a technical ground; as agitated by the petitioner, in exercise of its power under Section 482 of the Code of Criminal Procedure; more so when the petitioner approached this Court belatedly after more than six years of being well aware about the said ground. 13. Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.