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2020 (12) TMI 380 - HC - Indian LawsDishonor of Cheque - Misappropriation of fund - validity of registration of a FIR under Section 156(3) of the Code of Criminal Procedure - non-application of mind - HELD THAT:- The Hon'ble Supreme Court in the case of MRS. PRIYANKA SRIVASTAVA AND ANOTHER VERSUS STATE OF UP. AND OTHERS [2015 (5) TMI 47 - SUPREME COURT] has held that an application under Section 156(3) of the Code of Criminal Procedure seeking a direction for registering an FIR must be supported by an affidavit. The Hon'ble Supreme Court in the said judgment has further held that in a routine manner the complaint cannot be sent by exercising jurisdiction under Section 156(3) of the Code of Criminal Procedure for registering an FIR. This exercise of power requires application of mind. The Hon'ble Supreme Court further has held that there should be prior application of Section 154(1) and 154(3) of the Code of Criminal Procedure while filing a petition under Section 156(3) of the Code of Criminal Procedure. In the instant case, the provisions of law have not been followed by the Magistrate. In a most mechanical manner, without application of mind the Magistrate has referred the complaint under Section 156(3) of the Code of Criminal Procedure for registering a First Information Report. There is no compliance of Section 154(1) and Section 154(3) of the Code of Criminal procedure in the instant case - Further, from the complaint, it is found that the complainant had prayed to take cognizance of the offence under Sections 420, 403, 406 of the Indian Penal Code and Section 138 of the Negotiable Instruments Act and to proceed against the accused persons. No where the complainant had prayed to refer the complaint under Section 156(3) of the Code of Criminal Procedure. Thus, the order of the Court passed under Section 156(3) of the Code of Criminal Procedure is absolutely bad and is hereby set aside. Court below is directed to proceed with the complaint case being in terms of Chapter XV of the Code of Criminal Procedure - criminal miscellaneous petition stands disposed of.
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