2025 INSC 278
SUPREME COURT OF INDIA
(HON’BLE
SUDHANSHU DHULIA, J. AND HON’BLE AHSANUDDIN AMANULLAH, JJ.)
KANISHK SINHA
Petitioner
VERSUS
STATE OF WEST BENGAL
Respondent
Criminal Appeal Nos. OF 2025 (@ SPECIAL
LEAVE PETITION (CRIMINAL) NOS.86098614 OF 2024)-Decided on 27-02-2025
Criminal, Cr PC
Criminal Procedure
Code, 1973, Section 156(3) – Complaint before Magistrate – Requirement of
filing affidavit –
Direction Prospective - Only point raised by the appellants in their
revisions before the High Court, second FIR has been registered on the
complaint which was filed before the Magistrate under Section 156(3) of
CrPC, and it was not accompanied by an affidavit and therefore, the law as laid
down by this Court in Priyanka Srivastava vs. State of Uttar
Pradesh (2015) 6 SCC 287 has been violated as all such complaints should
now be accompanied by an affidavit according to Priyanka
Srivastava (supra) - The learned Single Judge of the High Court was of the
view that the directions of this Court in the above case could
only operate prospectively and will not have any retrospective application, and
will thus not be applicable to the complaint lodged against the appellants in
the year 2010-2011 – Submission on behalf of the appellant that judgment in
case of Priyanka Srivastava are retrospective repelled – Held that High Court
was right in holding that the direction that a complaint will be accompanied by
an affidavit, will be prospective in nature - Appeals liable to be dismissed.
(Para
5 and 6)
JUDGMENT
Sudhanshu Dhulia, J. :-
Leave granted.
2.
The appellants before this Court are husband and wife (appellant no.1 & 2,
respectively), who are aggrieved by an order dated 27.06.2024 passed by the
learned Single Judge of the Calcutta High Court by which the criminal revisions
of the present appellants were dismissed. The appellants are accused in
two different cases, the first registered as a First Information
Report (‘FIR’) at police station Bhowanipur, Kolkata as FIR No.179
of 2010 dated 27.04.2010 under Sections
120B, 420, 467, 468, 469, 471 of the Indian Penal
Code, 1860 (‘IPC’), read with Section 66A (a)(b)(c) of the
Information Technology Act, 2000 (‘IT Act’). In the instant case, the
complainant was Keyur Majumder. The second FIR which was initially moved as a
complaint before the Ld. Magistrate, and the Ld. Magistrate in exercise of
powers under Section 190 read with 156(3) of the Criminal Procedure Code,
1973 (‘CrPC’) directed registration of an FIR. The complainant in this case was
Supriti Bandopadhyay, and the second FIR was registered as FIR No.298 of 2011
dated 08.06.2011 at police station Bhowanipur, Kolkata under Sections 466, 469,
471 read with 120B(ii) of IPC.
3.
The nature of allegations in these two cases is similar against the appellants,
relating to forgery, fraud, deception, cheating, damage caused to reputation,
unlawful extraction of money, threat, misrepresentation and criminal conspiracy
etc. In fact, six revisions were filed by the appellants before the Calcutta
High Court regarding the filing of charge sheet, as well as against certain
interim orders passed by the Lower Court. But that is not very relevant. What
is relevant is the only point which has been raised by the appellants in their
revisions before the High Court, which was that not only are these FIRs
motivated and false, and thus liable to be quashed, but also that the second
FIR has been registered on the complaint which was filed before the Magistrate
under Section 156(3) of CrPC, and it was not accompanied by an
affidavit and therefore, the law as laid down by this Court in Priyanka
Srivastava vs. State of Uttar Pradesh (2015) 6 SCC 287 has been violated
as all such complaints should now be accompanied by an affidavit according
to Priyanka Srivastava (supra). The learned Single Judge of the High
Court was of the view that the directions of this Court in the above
case could only operate prospectively and will not have any retrospective
application, and will thus not be applicable to the complaint lodged against
the appellants in the year 20102011.
The
appellant no.1, all the same, who argued in person before the High Court,
emphasised before this Court and would argue that all the judgments of this
Court are retrospective in nature and therefore it cannot be said that this
would not be retrospective particularly when it has not been specifically
stated in the judgment of Priyanka Srivastava (supra) that it will
operate prospectively.
Now the law of prospective and retrospective
operation is absolutely clear. Whereas a law made by the legislature is always
prospective in nature unless it has been specifically stated in the statute
itself about its retrospective operation, the reverse is true for the law which
is laid down by a Constitutional Court, or law as it is interpretated
by the Court. The judgment of the Court will always be retrospective in nature
unless the judgment itself specifically states that the judgment will operate
prospectively. The prospective operation of a judgment is normally done to
avoid any unnecessary burden to persons or to avoid undue hardships to those
who had bona fidely done something with the understanding of the law as it
existed at the relevant point of time. Further, it is done not to unsettle
something which has long been settled, as that would cause injustice to many.
4. In Priyanka
Srivastava (supra) this Court was seized with an issue where frivolous
complaints were being filed before the Magistrate only to harass people and
therefore, in order to check this trend, it was directed that all applications
before the Court where Section 156(3) CrPC applications are made must
be supported by an affidavit duly sworn by the applicant who seeks to
invoke the jurisdiction of the Magistrate. Such a step could only be
prospective in nature, and this is clearly reflected from the very language
used by the Learned Judges in Priyanka Srivastava (supra), where it
has been said as under:
“30. In our considered
opinion, a stage has come in this country where Section 156(3) CrPC
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. That apart, it
becomes more disturbing and alarming when one tries to pick up people who are
passing orders under a statutory provision which can be challenged under the
framework of the said Act or under Article 226 of the Constitution of
India. But it cannot be done to take undue advantage in a criminal court as if
somebody is determined to settle the scores.”
(Emphasis
provided)
5.
This Court in the above case then also issued directions that a
copy of the judgment be sent to all the Chief Justices
of the High Courts, who in turn will circulate the said copy to all
the Magistrates, so that they remain “more vigilant and diligent while
exercising the power under Section 156(3) CrPC”. It is necessary to
mark the words in the abovequoted para 30 that “…a stage has come in this
country…”, and thus, the above directions could only be prospective. This would
signify that what the Court intended was that from now onward it would be
necessary that an application would be accompanied by an affidavit.
6.
We are of the opinion that the High Court was right in holding that the
direction that a complaint will be accompanied by an affidavit,
will be prospective in nature. We thus find no merit in these appeals and
hence, the appeals stand dismissed.
7.
We have been informed that the charge sheet has been filed in both the cases.
In case charges have not been framed by the Court, then the appellants would be
at liberty to move an application for their discharge, which shall be
considered in accordance with law.
8.
Interim order(s), if any, stand(s) vacated.
9.
Pending application(s), if any, stand(s) disposed of.
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