A Damocles Sword that never falls

A Damocles Sword that never falls

The  Supreme Court directions  in Priyanka Srivastava 2015 (2) KHC SN 30 SC raise many curious issues.  The Apex court said that, for sending a matter for investigation under section 156 (3) Cr.P.C, the complaint should be supported by an affidavit.   The reason behind it is sound. But it will in a way curtail the power of the magistrate !

When a complaint is before the magistrate, he can either take cognizance by himself and proceed with the matter or send it to police for investigation.  There are many decisions to the effect that the complainant cannot choose the course of action to be followed by the magistrate.  Hitherto, if the complainant does not want the court to send the matter to the police, he can abstain from filing an affidavit and force the court to proceed with the matter !!

In such a situation, the court can of course,direct him to file an affidavit. But in case he refuses to do so, the court will be helpless. If the matter is serious in nature, the court also cannot dismiss the complainant, since the duty of the complainant is only to alert the court about a crime committed .   There may also arose a hypothetical situation wherein the complainant dies after the magistrate directs him to file the affidavit.  Then also the magistrate will be left without the option to send the matter to the police even if he desperately feels so.

Hence the direction to the effect that before making an order u/s 156(3)  the court should get an affidavit from the complainant, will take away one of the options of the  magistrate , and he will be forced to proceed with a matter which he feels that police investigation is required.

Another folly of the direction is that, there may be situations in which the complainant prima facia suspect the commission of an offence against a particular person, or even against a person unknown to him on the date of filing the complaint. So there is a possibility of the complaint being found false in a later stage. In such situations, whether to proceed against the complainant or not  is a matter to be considered by the court on evidence or at least after hearing the complainant on it. And the remedy is not to make him automatically liable for a prosecution for giving a false affidavit.

In such a situation though it is an offence u/s 182 IPC, the magistrate will have to come before the trial court as the complainant, by virtue of Sec.195(1) Cr.P.C. Usually the magistrates won’t do that. And they are also not expected to come as complainants when two individuals raises rival claims before the court and for that purpose uses false evidence or claims. Judicial officers are expected to be complainants only when they feel that administration of justice will be jeopardized. Accordingly the present direction will makes things more worse and will put the magistrates in unnecessary hardships.

Hence the insistence on an affidavit with the threat of a prosecution is against the procedure established by law on many counts.  The magistrates should enjoy their statutory powers untrammeled by the present direction of the Apex Court lest, unwanted situations will arise in future.

John S Ralph

Adv. John S. Ralph is a Lawyer practising at High Court of Kerala.