Top News Headlines 19th Feb 2022: Application Under Section 156(3) Shall Not Be Entertained Unless Accompanied By The Complainant's Affidavit

Application Under Section 156(3) Shall Not Be Entertained Unless Accompanied By The Complainant's Affidavit: SC

• The Hon’ble SC has, in Babu Venkatesh vs. State of Karnataka held that a magistrate cannot entertain an application under section 156(3) of CrPC unless the same has been accompanied by the affidavit of the complainant.
• The benefit of such a requirement would be that people would be deterred from casually invoking the authority of the magistrate under section 156(3), since if the complaint is found to be false then the complainant would be liable to be prosecuted in accordance with law.
• In the instant case, the allegations were that the accused had obtained black stamp papers from the complainants and had created an Agreement for Sale by misusing the same blank stamp papers. He had thus committed forgery and cheated them and were hence liable for an offence under section 420, 464, 468 and 120B of the IPC.
• The ACJM had directed an investigation under section 156(3) of CrPC and directed police to register an FIR. The accused then approached the HC contending that the order passed for the registration of the FIR was done in a mechanical manner. The HC, however, dismissed the petitions. Aggrieved, an appeal was filed before the SC.
• It was contended before the SC that the Magistrate should have applied his mind before ordering the registration of the FIR. It was also contended that unless the application under section 156(3) was accompanied by an affidavit of the complainant, the Magistrate could not have passed the said order.
• It was also submitted by the accused that the complaint had been made solely with the intention of harassing him and the dispute was of a purely civil nature.
• The Hon’ble SC relied upon its judgement in State of Haryana vs. Bhajan Lal and ors. wherein it was held that the power to quash proceedings under section 482 of CrPC was a power which should be exercised sparingly and in the rarest of rare cases. There were a few instances which were laid down in this case that offered an example of instances where the proceedings can be quashed, one of them being when the court feels that the criminal case has been instituted with a malafide intent only to exact vengeance upon the accused for private and personal reasons. The Court felt that the instant case appears to fall into this category.
• The Apex Court also relied upon its decision in the case of Priyanka Srivastava vs. State of UP and ors. (2015) SCC and observed that the time has come when applications under section 156(3) of CrPC have to be accompanied by a sworn affidavit of the complainant who seeks to invoke the jurisdiction of the Court under section 156(3).
• The Court also observed that in appropriate cases, the learned Magistrate ought to verify the veracity of the allegations as applications under the impugned provisions are filed without any fear of consequence only to harass certain people.
• The Apex Court thus observed that the Lower COurt had failed to apply any law which had been laid down by the SC. The Court also felt that the continuation of the proceedings would amount to an abuse of the process of law.
• Thus, the Apex Court quashed the proceedings and set aside the orders of the lower Court.

Section 122 Of Indian Evidence Act A Legal Weapon To Suppress Crime And Affects Public Interest; Must Be Re-Visited: Kerala HC

• The Hon’ble High Court (HC) of Kerala in Alli Noushad v Rashedd & Anr, has observed that Section 122 of the Indian Evidence Act, 1947 (Evidence Act) on marital confidence must be re-visited in light of modern times where it is being used as a legal weapon by criminals to suppress their crime.
• Section 122 of the Evidence Act protects the communication between spouses, being privileged, by stating that the parties shall not be forced to disclose communication between them.
• The Court, whilst appreciating the sanctity of marriage, remarked that the protection of disclosure of communication between spouses must not take precedence over bringing out the truth behind a crime.
• The present appeal before the Court was filed by a woman against the order of the Trial Court, acquitting her husband’s murderer. The accused murdered her husband on the suspicion that the deceased had an illicit relationship with his wife. The main witness in this case was the statement of a man who witnessed the incident.
• The accused’s wife, only evidence produced by the prosecution, deposed before the Trial Court. However, the Trial Court rejected the statement of the eye witness as unbelievable and strange on the ground that he did not make any noise or scream when the accused stabbed the deceased.
• The wife’s evidence was also rejected on the ground that it was protected under Section 122 of the Evidence Act as being privileged communication. The wife informed the Court about the quarrel that ensued between her and the husband upon discovery of her chats with the deceased.
• Finding the evidence produced by the prosecution, the Trial Court acquitted the accused.
• The SC, while deciding the case, firstly remarked that the High Court’s conclusion with regards to the eye witnesses’ behaviour was illogical. The Court noted that individuals are distinct and each one reacts differently to the same situation. The law does not permit branding a witness as reliable or unreliable on the sole basis of such standard behaviour.
• With regards to the communication between the spouses, the Court observed that the bar of disclosure under Section 122 in only with respect to ‘communication’ made to a witness, being a married person, by their spouse during the marriage. Given this, the evidence produced by the accused’s wife, except the one relating to the quarrel, can be accepted.
• The Court remarked that public interest must be kept at the forefront and that it is not inferior or subservient to the happiness and peace of a family. The Court remarked “One cannot keep the happiness and peace of his family, after indulging in a crime and then seeking support of law to suppress it.”
• The Court also drew attention to Bombay HC’s recommendation in the case of Vilas Raghunath Kurhade v State of Maharashtra, wherein the HC recommended the State Government to approach the Law Commission or the Ministry of Law and Justice, Government of India with a proposal to amend the provisions of Section 122 of the Evidence Act.
• With this, the High Court set aside the decision of acquittal by the Trail Court and sentenced the accused to imprisonment for life and fine, to be paid to the wife of the deceased.

Transport Authority Can Reject Permit Application If Proposed Vehicle For Replacement Is Older Than The Existing Vehicle: SC

• The Hon’ble Supreme Court (SC or Court), in the case of Regional Transport Authority v Shaju, set aside the judgment passed by the Kerala High Court (HC) by holding that Rule 174 (2) (c) is intra vires the provisions of Kerala Motor Vehicle Rules,1989 (Rules) and also Section 83 of the Motor Vehicles Act.
• The Court held that the State Road Transport Authority (RTA) can reject an application for replacement of the vehicle if the proposed vehicle is older than the vehicle under the existing permit.
• Section 83 of the Motor Vehicles Act, 1988 permits replacement of the vehicle covered under an existing transport permit by another vehicle of the same nature.
• The Division Bench of the Kerala High Court dismissed appeal file by the RTA by holding that Rule 174(2)(c) of goes beyond the provisions of the Act and are to held to be inoperative and directed the RTA to consider the application only on the ground of road-worthiness without reference to the model of the vehicle.
• Aggrieved, the Petitioner preferred an appeal before the SC to consider whether Rule 174(2)(c) of Kerala Motor Vehicles Rules, 1989 is ultra vires the provisions of the Act and whether Rule 174(2)(c) is contrary to the Motor Vehicles Act.
• SC Bench noted that the purpose and object of mandating replacement by a vehicle of the same nature is to ensure that the scrutiny and conditions imposed at the time of granting the vehicle continue even during the subsistence of the permit.
• The Court observed that the rules made by the State Government with regards to vehicle replacement does not impinge upon the powers of the Central Government regarding fixing the age or fitness of the vehicle conferred upon it under Sections 56 and 59 in Chapter IV of the Act.
• The Court further held that there is no prohibition on the vehicle unapproved by the RTA being used as a transport vehicle within the State as it may continue to be fit and within the age limit prescribed by the Central Government. The rigour of Rule 174 (2) (c) is only in the context of a subsisting transport permit and not as a condition for transport vehicles.
• On the interpretation of the phrase ‘same nature’ by the HC, the Court was of the view that the HC’s interpretation is not a correct way to read the provision. The Court said that the interpretation of such expressions must be kept open ended to enable courts to subserve the needs of changing circumstances.
• The Court held that the RTA can exercise express or implied discretion wherever necessary in order to exercise its power reasonably on the facts and circumstances of the case. Only in cases where the discretion is exercised based on unreasonable and arbitrary principles, such a decision would be vulnerable and subject to correction in appeal and a further review.