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The plea sought quashing of FIR registered against a company in a cheating case and setting aside the judicial magistrate's order through which an investigation had been directed to be conducted.
The Bombay High Court has recently held that an affidavit that is not in compliance with paragraphs 5 and 8 of Chapter VII of the Criminal Manual shall be considered to be in non-compliance with the mandatory requirement of filing an affidavit with respect to an application filed under Section 156(3) of CrPC.
The Nagpur bench of the High Court comprising of Justice Sunil B Shukre and Justice MW Chandwani observed thus while setting aside an order passed by Judicial Magistrate First Class allowing investigation under Section 156(3) CrPC.
The High Court noted, “…to see that the complainant who invokes the jurisdiction under section 156(3) of the Cr.P.C. and put the criminal law in motion, shall be held responsible for any mischief in making out a false case. There should be no scope for the declarant to escape on the technical ground from responsibility attached to the statement made by him in the affidavit. Unless those compliances, referred in paragraphs nos. 5 and 8 of chapter VII of the Criminal Manual are complied with, it will be difficult to hold the person making a declaration on oath, responsible for the statement made on an oath".
The court further went on to hold that a civil dispute cannot be dissimulated as a criminal offence and the Magistrate must apply his judicial mind before passing an order under Section 156(3) of CrPC.
Hence, noting that the application under Section 156(3) was lacking in procedural formalities related to the filing of an affidavit and its usage as a subterfuge to give a criminal color to a civil case, the court quashed the FIR and set aside the order passed by the Magistrate.
Additionally, the Court noted, "The upshot of the above discussion is that the case is only of breach of a contract. The civil dispute has been given colour of criminal offence. The learned magistrate did not apply mind and mechanically passed the order under section 156(3) of Cr.P.C. directing to police for investigation."
CASE TITILE: HARRY INDER DHAUL VS STATE OF MAHARASHTRA
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