S.156(3) CrPC | Omission To File Affidavit Along With Complaint A Fatal Procedural Defect: Orissa High Court

The Orissa High Court has reiterated that omission to file an affidavit supporting the contents of a complaint under Section 156(3) of the Criminal Procedure Code (CrPC) is a fatal procedural defect which goes to the root of the matter and renders the very initiation of criminal action based on such complaint a nullity.

While setting aside the orders of two lower Courts, which denied to discharge the petitioner on account of the aforesaid procedural lapse, the Bench of Justice Chittaranjan Dash held –

“The affidavit acts as a self-certifying threshold, discouraging frivolous or mala fide applications and making the complainant personally answerable for the truth of the allegations made. This safeguard is not only in the interest of judicial discipline, but equally if not more in the interest of the accused, who otherwise could be dragged into the rigours of a criminal trial on the basis of unverified, and potentially vexatious, allegations.”

The Branch Manager of Kotak Mahindra Bank (Opposite Party No. 2) filed a complaint before the Sub-Divisional Judicial Magistrate (SDJM), Sundargarh seeking cognizance to be taken under Section 156(3) of the CrPC and direction to the police to register an FIR and take up investigation.

Pursuant to the direction of the SDJM, the police took up investigation and upon its completion, filed charge-sheet against the petitioner for commission of offences under Sections 406/420/201/34 IPC.

After taking cognizance of the offences, when the Magistrate scheduled the case for framing of charge, the petitioner sought discharge under Section 239 of CrPC. However, such application of the petitioner was rejected by the SDJM. The rejection order was impugned before the Additional Sessions Judge by means of a revision petition, which also came to the same conclusion. Therefore, both the orders were challenged before the High Court.

The thrust of petitioner's argument was that the very bedrock of the criminal proceedings is vitiated due to non-compliance of the mandatory procedural requirement laid down by the Supreme Court in Priyanka Srivastava v. State of U.P. (2015) i.e. filing an affidavit supporting the contents of the complaint.

It was urged that in absence of such affidavit, the petitioner deserves to be discharged in the case, since such requirement is not a superfluous formality but a essential statutory safeguard. Failing to file such affidavit, it was argued, shall render the registration of FIR a nullity.

The State, however, contended that the Magistrate has taken cognizance after considering the available materials, which disclose sufficient grounds to proceed against the petitioner and therefore, the focus at this stage, should not be on minor technicalities but on whether there is enough material to justify a trial.

The only point for consideration was whether the entire criminal proceedings be set at naught for the want of a supporting affidavit along with the complaint as mandated by the Supreme Court in Priyanka Srivastava (supra).

To answer the aforesaid question, the Court placed reliance on a recent Supreme Court ruling in S.N. Vijayalakshmi & Ors. v. State of Karnataka & Anr., 2025 LiveLaw (SC) 758. The Court had held that the directions issued in Priyanka Srivastava (supra) are mandatory which would operate prospectively.

It had further clarified that non-filing of the supporting affidavit is a curable defect, but must be cured before the Magistrate passes any substantive order on the complaint/application, and if the Magistrate proceeds without the requisite affidavit, such order/any consequential orders/proceedings can be quashed on the sole ground of non-compliance with Priyanka Srivastava (supra).

Justice Dash, thus, held that the affidavit is not merely a formality, rather it is a requirement which serves as a crucial procedural safeguard aimed at ensuring that the criminal process is not lightly invoked without due responsibility or accountability on the part of the complainant.

“Where, as in the present case, no affidavit was filed at all, the safeguard has not merely been overlooked but has been completely bypassed. This failure is not a trivial irregularity, it strikes at the very legitimacy of the Magistrate's act of directing registration of the FIR, which in turn triggered the cascade of investigative and judicial proceedings that followed. Allowing such proceedings to continue despite this omission would render the mandatory safeguards illusory, and would result in prejudice to the accused,” he added.

Therefore, non-filing of the affidavit was held to be fatal for the complainant and accordingly, the orders of the lower Courts denying discharge to the petitioner were set aside. However, the complainant was given the liberty to re-agitate his grievance by duly complying with the procedural safeguards.

Case Title: Hari Shankar Patnaik v. State of Orissa & Ors.

Case No: CRLMP No. 1448 of 2024

Date of Judgment: August 06, 2025

Counsel for the Petitioner: Mr. D.K. Mohapatra, Advocate

Counsel for the Respondents/OPs: Mr. A.K. Apat, Addl. Standing Counsel

Citation: 2025 LiveLaw (Ori) 102

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