Allahabad High Court dismisses criminal revision petition, says application must be supported by affidavit

The Allahabad High Court while dismissing the petition said that the application u/s 156 (3) CrPC must be supported by an affidavit.

A Single Bench of Justice Surendra Singh passed this order while hearing a Criminal Revision filed by Bharat Singh Kushawaha.

The criminal revision has been filed against order dated 22.03.2023 passed by Chief Judicial Magistrate, Jalaun at Orai in Criminal Misc Case (Bharat Singh Kushwaha Vs Smt Vijay Lakshmi @ Bulbul), Police Station- Kotwali Orai, District- Jalaun.

By the impugned order, the Magistrate rejected the application u/s 156 (3) Cr.P.C filed by the revisionist.

The revisionist/applicant, Bharat Singh Kushwaha, had filed application u/s 156 (3) Cr.P.C on 17.01.2023 contending that his son, Gopal Krishna alias Rinku aged 32 years, was living from long duration separately from him with his wife Smt Vijay Lakshmi @ Bulbul and his children. On 04.09.2022, Gopal Krishna alias Rinku, after working as electrician, returned to his house at 10.30 pm. 

After sometime, the revisionist was informed that his son became unconscious. There were mark of injuries on his neck. He was taken to the hospital for treatment where the doctor declared him brought dead. His postmortem was done through police of Police Station- Kotwali Orai. His son’s wife, Smt Vijay Lakshmi @ Bulbul, used to quarrel with him and insult him for sending half of his income to her matrimonial home. 

On the date of the incident, opposite party no 2, Smt Vijay Lakshmi @ Bulbul had quarrelled and insulted his son for sending half of his income to her matrimonial home. Due to the insult suffered by him, his son committed suicide by hanging.

On 05.09.2022 and 24.09.2022, the revisionist/applicant submitted application to Police Station- Kotwali Orai and higher police authorities for registration of first information report but no F.I.R was registered. The revisionist/applicant has submitted copy of Misc Case dated 19.10.2022 (Smt Vijay Lakshmi @ Bulbul and Another Vs Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925.

He has also filed his son’s Gopal Krishna alias Rinku postmortem report dated 05.09.2022, application dated 15.12.2022 sent to S.P, Jalaun for registration of F.I.R, newspaper cutting regarding death of his son by hanging.

It has been submitted by the counsel for the revisionist that the Magistrate passed the impugned illegal order without appreciation of evidence and without application of his mind.

It has next been submitted that the Magistrate passed the impugned order on the basis of report sent by police station without considering the averments made in the application u/s 156 (3) CrPC.

It has also been submitted that the Magistrate passed the impugned order presuming that the application u/s 156 (3) Cr.P.C was filed as a counterblast to the Misc Case (Smt Vijay Lakshmi @ Bulbul and Another Vs Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925 by opposite party no 2.

It has also been submitted that from the basis of averments made in the application u/s 156 (3) Cr.P.C. and the documents filed in support thereof, prima facie, case u/s 306 and 201 I.P.C was made out against opposite party no 2 but by exceeding his jurisdiction, Magistrate illegally rejected the application.

He has prayed for quashing the impugned order and directing the Magistrate to pass a fresh order on his application.

Per contra, counsel for the opposite party no 2 has submitted that the Magistrate after considering the evidence on record and the provisions of the law has rightly passed the impugned order.

It has next been submitted that there is no merit in the revision and it may be rejected.

The Court observed that,

From the consideration of the averments made by the parties and the documents filed in support thereof, it appears that after the death of her husband, opposite party no 2 had submitted an application dated 15.10.2022 to the Bank Manager requesting him not to make payment of the deposits to the revisionist who was made nominee of the bank account. The opposite party no 2 had filed Misc Case (Smt Vijay Lakshmi @ Bulbul and Another Vs Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925 on 19.10.2022 in the civil court for issuance of succession certificate regarding the aforesaid bank deposit in favour of opposite party no 2 and her minor son. Only after the opposite party no 2 had filed aforesaid application regarding the bank deposits of her husband, in order to pressurize her, the revisionist submitted application to S.P, Jalaun on 15.12.2022 and filed application u/s 156 (3) Cr.P.C on 17.01.2023 against her.

In the postmortem report of deceased, apart from the aforesaid ligature marks, no bodily injuries were found on his person.

The revisionist has not filed any documentary evidence regarding his averment of harassment and insult done by opposite party no 2 to her husband due to which he committed suicide.

The Court noted that,

Averment has been made on behalf of opposite party no 2 that after the death of her husband, his last rites were performed by the family members of the revisionist. In the impugned order, the Magistrate has taken into consideration the fact that the revisionist has not given any documentary evidence in support of alleged harassment of his son by his wife.

It has also mentioned that no suicide note was found which may corroborate the averment regarding abetment of suicide by the wife of the deceased. The Magistrate has also taken into consideration the fact that a case was filed by the wife of the deceased against the revisionist/applicant, namely, Misc Case (Smt Vijay Lakshmi @ Bulbul and Another Vs Bharat Singh Kushwaha) filed u/s 372 of the Indian Succession Act, 1925, for issuance of succession certificate in favour of opposite party no 2 and her son regarding the bank deposit of the deceased.

The revisionist has not mentioned that he had filed affidavit in support of application u/s 156 (3) Cr.P.C nor he has filed certified copy of any such affidavit as mandated by the Apex Court in the case of Mrs Priyanka Srivastava (supra).

“Considering the facts and circumstances of the case and prima facie evidence on record in the light of the law propounded by the Supreme Court for passing order by the  Magistrate on application u/s 156 (3) Cr.P.C, the Court is of the considered opinion that no illegality, irregularity or impropriety has been found in the impugned order passed by the Magistrate. There is no merit in the criminal revision and the same is liable to be dismissed”, the Court further observed while dismissing the petition. 

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