Criminal Complaints should accompany an affidavit stating Complainant’s knowledge of its contents: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR TUESDAY THE 18TH DAY OF AUGUST 2020 27TH SRAVANA 1942 Crl.MC.No.2560 OF 2015 CRIME NO.380 2015 OF Thrikkakara Police Station Ernakulam AGED 35 YEARS S O SIVAN CHERIYAPUYTHENVEETTIL HOUSE KODUNGALLOOR THRISSUR DISTRICT SRI.ARUN PAUL JACOB RESPONDENTS DE FACTO COMPLAINANT & STATE S O VARHGESE SANKOORIKKAL HOUSE SANTHI NAGAR CHAKKARAPPARAMBU ERNAKULAM STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682031 R1 BY ADV. SRI.LINDONS C.DAVIS ADV.SRI. UDAYAKUMAR K.B.of Cr.P.C The contention of the petitioner is that even if the entire allegations against him are taken as true none of the offences in question can be said to have been made out under law. It is contended that since the authorities of hospitals where he is working have not preferred any Crl.M.C.No.25615 4 complaint to the authorities of law the allegation against him is liable only to be rejected as falsely made. According to him he is fully qualified and has all requisite certificates of eligibility for being employed as Clinical Embryologist in the hospitals. It is also contended that he has obtained Annexure C certificate of Doctorate in Philosophy in Animal Biotechnology from Prescott University London U.K. He also produced Annexure D certificate claiming it to be his Degree in Master of Science. He claims to have obtained Annexure E Master of Philosophy in Biotechnology from Bharathidasan University On the other hand the first respondent produced a series of documents contending that they are sufficient by themselves to substantiate that petitioner s certificates are all fabricated and he has not acquired Doctorate in Animal Biotechnology I heard the learned counsel for the Crl.M.C.No.25615 5 petitioner the first respondent and also the learned Public Prosecutor Having examined the nature of contentions raised by the parties it is quite natural for one to think that since the falsity or genuineness of the certificates relied on by the petitioner is a matter of controversy necessitating enquiry continuance of investigation pursuant to Annexure B FIR is only desirable. That apart one should not however lose sight of the other side of the picture also. Any investigation permitted to be held by the police authorities as to the authenticity or otherwise of the certificates in question pursuant to the complaint lodged by a member of the public will certainly affect not only the reputation but also the career prospects of the suspect in the crime. If the outcome of the investigation ultimately turns out to be in favour of the suspect no doubt by that time his Crl.M.C.No.25615 6 reputation as well as opportunity for employment might be ruined. It however does not mean that in all the cases wherever possession of requisite qualification or authenticity of certificates is in question investigation should be invariably withheld. It would only be a prudent approach if the judicial Magistrate concerned who forwards the complaint for registration and orders investigation into the crime ensures that the complaining person approaches him only with good sense of responsibility and also even preparedness to face the consequences if his allegations turn out at a later stage to be factually wrong or otherwise ill This position has been taken note of with utmost concern by the Honourable Apex Court which in one of its decisions insisted the judicial Magistrates entertaining complaints to make sure that the allegations made in the complaint are Crl.M.C.No.25615 7 genuine before it being forwarded for registration and investigation to the Police under Section 156(3) of Cr.P.C. This insistence came into vogue in the wake of the bald and frivolous allegations made by certain complainants turning out to be false in some cases at the later stage of the investigation. It was opined by the Honourable Apex Court that there existed the need for devising appropriate legal mechanism for holding the persons responsible for making false imputations. It was thus suggested that in order to confirm that only persons with sense of responsibility approach the court with honest complaints the learned Magistrate should insist the applicant to file affidavit along with the complaint in appropriate cases duly swearing that the imputations made in the complaint are factually true to the best of their knowledge information and belief. A rigid procedure demanding affidavit to accompany every Crl.M.C.No.25615 8 complaint is not what is intended. It is after all the discretion which the Magistrate may exercise in selected and deserving cases depending on the nature of allegations in the complaint and also facts and circumstances of each case In Priyanka Srivastava and anr. v. State of U.P. & ors.the Honourable Supreme Court held as follows In our considered opinion a stage has come in this country where S.156(3) CrPC applications are to be supported by an affidavit duly sworn b 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 said Act or under Art.226 of the Constitution of India. But it cannot be done to take undue Crl.M.C.No.25615 9 advantage in a Criminal Court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under S.154(1) and S.154(3) while filing a petition under S.156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that on the application under S.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 S.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 be nature of allegations of the case.” In the present case Annexure A complaint is not supported by any affidavit in compliance with the spirit of Priyanka s case supra. The non compliance with the direction of the Honourable Apex Court having due regard to the facts of this case has vitiated the criminal proceeding in Crime No.380 2015. The learned counsel for the first Crl.M.C.No.25615 10 respondent submitted that the argument based on Priyanka s case supra is only technical so far as the facts of the present case are concerned. I do not agree to this submission especially in the light of Annexures C to E certificates already produced by the petitioner asserting them to be genuine documents capable of proving his qualifications as a Doctor in Philosophy. Though the authenticity or otherwise of these certificates could be contended as a matter requiring scrutiny by means of an investigation as I held earlier it was rather not fair for the learned Magistrate to have entertained the complaint and directed investigation for the evident reason that the complaining party failed to submit a supporting affidavit affirming the allegations raised in Annexure A complaint as being true and correct. In the circumstances Annexure B FIR cannot survive and is liable to be quashed Crl.M.C.No.25615 11 In the result Crl.M.C. is allowed quashing Annexure B FIR as against the petitioner. However this order will not stand in the way of the first respondent setting the criminal law in motion on the basis of a proper complaint supported by an affidavit being submitted in compliance of the directives in Priyanka s case supra. All pending interlocutory applications are Sd T.V.ANILKUMAR JUDGE Crl.M.C.No.25615 12 PETITIONER S EXHIBITS ANNEXURE A A TRUE COPY OF THE PRIVATE COMPLAINT MP 698 2015) FILED BY THE IST A TRUE COPY OF THE FIR IN CRIME 380 2015 OF THRIKKAKKARA POLICE A TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER FROM PRESCOTT UNIVERSITY LONDON U.K A TRUE COPY OF THE CERTIFICATE DATED 2.9.2003 ISSUED TO THE PETITIONER FROM BHARATHI DASAN UNIVERSITY A TRUE COPY OF THE CERTIFICATE DATED 12.10.2007 ISSUED TO THE PETITIONER FROM BHARATHI DASAN UNIVERSITY A COPY OF THE MEMORANDUM IN OP 45 2015 OF FAMILY COURT PALA THE CONTACT INFORMATION OF PRESCOTT UNIVERSITY PUBLISHED IN THE OFFICIAL WEBSITE OF THE UNIVERSITY A TRUE COPY OF THE CERTIFICATE OF AUTHORISATION GIVEN BY PRESCOTT RELEVANT PAGES OF THE RULES PREPARED BY MINISTRY OF HEALTH AND FAMILY WELFARE GOVERNMENT OF INDIA A COPY OF THE WEBSITE DETAILS OF PRESCOTT UNIVERSITY ALONG WITH STUDENT ALUMNI DIRECTORY Crl.M.C.No.25615 13 RESPONDENTS EXHIBITS COPY OF THE RESUME OF THE ACCUSED COPY OF THE LETTER FROM NIANP DATED COPY OF THE ADVERTISEMENT OF THE COPY OF THE ADVERTISEMENT OF THE COPY OF THE ADVERTISEMENT OF THE COPY OF THE WEB PAGE OF THE PETITIONER IN www.doctorscabin.com COPY OF THE VAKALAT EXECUTED BY THE ACCUSED DATED 7.4.2015 COPY OF THE IDENTITY CARD OF ACCUSED FROM KERALA SHOPS AND COMMERCIAL ESTABLISHMENT WORKERS WELFARE BOARD COPY OF THE HOME PAGE OF THE WEBSITE

Summary: If there is a complaint made to a magistrate then it is advisory that it should contain the affidavit along with it so as to strengthen the varsity of the complaint’s content. The decision was passed by the Hon’ble Court in consequence of false and frivolous allegations that were made in a complaint by certain complainants and they were found to be false post-investigation. The Hon’ble court clarified that attaching an affidavit is not a ground-rule but attaching the same strengthens the contents that the complainant in the complaint alleges held by Justice T.V.Anilkumar in Prasanth vs. C.V. Kuriakose and Anr [Crl. MC.No. 2560 of 2015]. While setting aside the investigation, Hon’ble Court relied upon Apex Courts ruling in Priyanka Srivastava &amp; Anr. V. State of UP &amp; Ors. Wherein directions were issued by the Apex Court to attach the affidavit in criminal complaints so as to verify its veracity and the genuineness of the allegations made in the complaint.  The Single Judge bench of Justice TV Anilkumar, while quashing the FIR observed that “it was rather not fair for the learned Magistrate to have entertained the complaint and directed investigation for the evident reason that the complaining party failed to submit a supporting affidavit affirming the allegations raised in Annexure – A complaint as behind true and correct.” In this petition learned Magistrate 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 kinds of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. Finally, considering all the facts of the petition, all pending interlocutory applications are closed. Click here to read the judgement