A Section 156(3) referral cannot be set aside on the mistaken finding that no affidavit was filed.

The petitioner filed a private complaint under Section 200 Cr.P.C. alleging that the second respondent had obtained an agreement of sale and power of attorney over the petitioner’s properties by coercion, and had threatened him.

The Magistrate referred the complaint to the jurisdictional police for investigation under Section 156(3) Cr.P.C.; the police registered Crime No. 81/2021.

In revision, the Sessions Court set aside the referral, finding that the complaint was unsupported by the affidavit required under Priyanka Srivastava and that the complainant had not first approached the police.

The petitioner challenged that order under Section 482 Cr.P.C.

Whether the Sessions Court was justified in setting aside the Magistrate’s Section 156(3) referral on the ground that the complainant had not filed an affidavit and had not approached the police.

Whether the pending civil suit concerning the properties warranted setting aside the referral for investigation.

Section 156(3) Cr.P.C. empowers a Magistrate to refer a complaint for police investigation.

Under Priyanka Srivastava v. State of Uttar Pradesh, a complainant seeking such a direction must support the application with an affidavit and demonstrate that the appropriate police authorities were approached before moving the Magistrate.

The High Court considered these requirements in reviewing the Sessions Court’s order under Section 482 Cr.P.C.

The Sessions Court’s decision rested principally on its finding that no affidavit had been filed and that the complainant had not approached the police.

The High Court reviewed the complaint and affidavit produced before it and found that the complainant had in fact approached the jurisdictional police, who allegedly refused to receive the complaint.

It therefore held that the Sessions Court’s contrary finding was factually incorrect.

The existence of a pending civil suit did not, by itself, resolve the allegations or preclude investigation; the High Court treated that matter as one for investigation.

It remitted the matter to the Magistrate for fresh consideration from the stage at which it stood and directed the police, who had already registered Crime No. 81/2021, to investigate in accordance with law.