Affidavit mandatory with private complaint: Karnataka High Court reiterates

The Karnataka High Court has reiterated that a person filing a private complaint in a Magistrate’s Court must file a written affidavit in support of the complaint.

single judge, Judge Mohammad Nawazthus allowing the petition filed by Parvathy Sharanappa and another person and quashing the FIR and private complaint initiated by Rayappa Jangali against them on the charges of fraud.

The complaint alleged that the appellants misused two security checks issued by the complainant by filing a false case against him for an offense punishable under Section 138 (dishonour of cheques) of the Negotiable Instruments (NI) Act.

Thus, the petitioner lodged a private complaint and the Magistrate referred it to the police for investigation under Section 156 (3) Cr.PC and hence an FIR was registered.

The applicants referred to the decision of the Supreme Court in Priyanka Srivastava and another vs. State of Uttar Pradesh and others (2015) to argue that the procedure set out in the order was not followed.

The Supreme Court in its decision stated, “In our opinion, a stage has arrived in this country where applications under Section 156 (3) Cr.PC must be accompanied by an affidavit, duly attested by the applicant, seeking recourse to the jurisdiction of the Magistrate. Further, in a relevant case, the learned Magistrate would be well advised to verify the truth and he can also verify the truth of the statements. This affidavit can make the applicant more responsible. We are forced to say this because such applications are made in the usual way without any responsibility only for the persecution of certain persons. Apart from this, it becomes more alarming and disturbing when someone tries to pick up the people issuing the orders under a statutory provision which can be challenged under the said Act or Article 226 of the Constitution of India. But it cannot be done to gain an undue advantage in a criminal court, as if one intends to settle scores“.

On perusal of the record, the court observed that the learned counsel for the complainant had made a statement that the police had not registered a case and despite filing a complaint with the higher authorities, no case had been registered. After that, the judge sent the case for investigation.

The postal receipt for sending the complaint to the higher authorities was actually submitted together with the complaint. However, counsel for the complainant conceded that there was no affidavit filed by the complainant in support of the complaint as found in Priyanka Srivastava, the court noted.

Whereas the Supreme Court has emphasized the need for an affidavit so that the persons making the statement are conscious and do not commit false affidavits because if the affidavit is found to be false, the person will be prosecuted as per the law.

The court ruled, “The contested order dated 09.03.2023 and the subsequent registration of the FIR were cancelled. The complainant has the right to file a new complaint in accordance with the law.»

Case Name: Parvathi & ANR AND State of Karnataka & anr

Counsel for the Petitioners: Sanjay A Patil, Advocate for the Petitioners

State Advocate: HCGP Anita M Reddy

Counsel for Respondent 2: Advocate Mahadev S. Patil

Citation #: 2024 LiveLaw (Kar). 474

Case No.: CRIMINAL REGULATION No. 200120 OF 2024

Click here to read/download the order