A two judge bench of the Supreme Court comprising of Justices Dipak Misra and P.C.Pant has held that applications u/s 156(3) of CrPC have to be supported by an affidavit to avoid unnecessary applications and the magistrate has to apply his judicial mind cautiously before making any order.
To quote :
“27. 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……”
“……The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit 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. ……”
The bench speaking through Justice Dipak Misra allowed the appeals and held that the order should be dispatched to all lower courts through proper channel –
“32. A copy of the order passed by us be sent to the learned Chief Justices of all the High Courts by the Registry of this Court so that the High Courts would circulate the same amongst the learned Sessions Judges who, in turn, shall circulate it among the learned Magistrates so that they can remain more vigilant and diligent while exercising the power under Section 156(3) Cr.P.C.”
The matter pertained to loan taken by the respondents from Punjab National Bank. On non repayment of loan, notices were issued under SARFESI Act and the loan was declared as a Non performing asset (NPA). However instead of repaying the loan, the respondents filed various litigations at different stages including High court, district courts, DRT and DRAT and forced the appellants to come to a settlement for only Rs 15 Lakhs.
The bench took this very seriously as abuse of the process of the law and in the strictly worded judgment cautioned magistrates to use the power u/s 156(3) cautiously as it is a wider power then Section 154 as a court of law is involved.
Read the Judgment here.