Vinod vs State By K.G. Halli Police Station
2021 Latest Caselaw 1888 Kant

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 15TH DAY OF APRIL, 2021

                           BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

               CRIMINAL PETITION NO.1174/2021

BETWEEN:

VINOD,
S/O LATE KRISHNAIAH,
AGED ABOUT 53 YEARS,
PROPRIETOR,
SREE SAIRAM OIL TRADERS,
SY.NO.448-20,
C/O J.S. OIL MILL COMPOUND,
CHELURU ROAD, CHINTAMANI 563125.

AND ALSO AT: SREE SAIRAM OIL MILL,
D.NO.16/518-12, D.C.ROAD,
KADAPA-516 001, ANDHRA PRADESH.                ... PETITIONER

     [(BY SMT. SHWETHA ANAND, ADVOCATE (THROUGH V.C)]

AND:

1.     STATE BY K.G. HALLI POLICE STATION,
       BENGALURU-560045.

2.     VIKRAM C.T.,
       S/O THIMMAPPA,
       AGED ABOUT 30 YEARS,
       PROPRIETOR OF SRI SAI TRADERS,
       NO.2, NARASIMHIAH BLOCK,
       NAGAVARA MAIN ROAD,
       VENKATESHPURAM,
       ARABIC COLLEGE POST,
       BENGALURU 560045.                     ... RESPONDENTS

                [BY SRI SHOWRI, HCGP FOR R-1;
             DR. S. ARMUGHAM, ADVOCATE FOR R-2]
                                     2



      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO QUASH THE ORDER DATED 07.03.2020
PASSED BY THE XI ADDL.CHIEF METROPOLITAN MAGISTRATE,
BENGALURU     IN   PCR   No.51773/2017   THEREBY   TAKING
COGNIZANCE OF THE OFFENCE AND REFERRING THE MATTER FOR
POLICE INVESTIGATION PRODUCED VIDE ANNEXURE-A.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the order dated 07.03.2020 passed by the

XI ACMM, Bengaluru in P.C.R.No.51773/2017 for the offences

punishable under Sections 420, 422 and 506 of IPC.

2. The factual matrix of the case is that respondent

No.2 had filed a private complaint before the learned

Magistrate invoking Section 200 of Cr.P.C. and prayed the

Court to refer the matter under Section 156(3) of Cr.P.C. for

the offences punishable under Sections 420, 422 and 506 of

IPC. The learned Magistrate after receiving the complaint

passed the following order:

"Complainant is present. Counsel for complainant is present and advanced argument on complaint. Perused complaint and documents produced in support of complaint. At this stage complaint needs

to be investigated. Hence complaint is referred to PI of K.G. Halli Police Station for investigation and report under Section 156(3) of Cr.P.C."

Hence, the present petition is filed praying this Court to

set aside the said order.

3. The learned counsel for the petitioner would

vehemently contend that the learned Magistrate has not

applied his judicious mind while referring the matter under

Section 156(3) of Cr.P.C., except making the general

observation that perused the complaint and documents

produced in support of complaint. Whether the complaint

averments discloses the cognizable offences, which have been

invoked, has not been stated in the order. The learned

counsel would submit that the complaint is filed against this

petitioner with regard to non-payment of the amount towards

the supply of edible oil and it is purely a civil dispute between

the parties. The complaint does not disclose any ingredients of

the offence of invoking of Section 420 of IPC and hence there

cannot be any proceedings against the petitioner.

4. Per contra, the learned counsel for respondent

No.2 would contend that the learned Magistrate while passing

the order and referring the matter under Section 156(3) of

Cr.P.C. has taken note of the complaint averments and

documents and passed the pre-cognizance order invoking

Section 156(3) of Cr.P.C. and hence this Court cannot find

fault with the order of the Trial Court. The learned counsel

would contend that referring the matter under Section 156(3)

of Cr.P.C. is not taking of any cognizance and it is only

referring the matter for investigation and the Investigating

Officer has to investigate the matter and file the final report.

The Court has got the power under Section 173(8) of Cr.P.C.

to order for further investigation, if the investigation has not

been done properly by the Investigating Officer. Hence, prays

this Court to dismiss the petition.

5. Having heard the learned counsel for the petitioner

and the learned counsel for respondent No.2, this Court has to

peruse the order passed by the learned Magistrate, which is

extracted hereinabove. It discloses that the learned

Magistrate referred the matter under Section 156(3) of

Cr.P.C. and while referring the matter under Section 156(3) of

Cr.P.C., a reference was made that he has perused the

complaint and the documents produced in support of the

complaint and it requires investigation. When the complaint is

filed under Section 200 of Cr.P.C., the learned Magistrate has

to either proceed with the matter by taking the cognizance or

has to refer the matter under Section 156(3) of Cr.P.C. On

perusal of the prayer, it is clear that reference is sought by

the complainant. The question before the Court is whether

the learned Magistrate has applied his judicious mind or

mechanically passed the order. On perusal of the order, the

learned Magistrate has made an observation that perused the

complaint and documents and forms an opinion that the

complaint needs to be investigated. The learned Magistrate

has not applied his judicious mind whether the contents of the

complaint constitutes cognizable offence when the cognizable

offence has been invoked in the complaint and no such

observations is made in the order and instead of, mechanically

passed the order that the matter requires to be investigated.

The Apex Court in the judgment in the case of MAKSUD

SAIYED v. STATE OF GUJARAT AND OTHERS reported in

(2008) 5 SCC 668 has held that the learned Magistrate has

to apply his mind while referring the matter under Section

156(3) of Cr.P.C. and the same has not been done in the

present case.

6. The other contention of the learned counsel for the

petitioner that the offences invoked against the petitioner

herein does not attract the ingredients of the offence cannot

be looked into at this stage. The Court has to look into

whether the learned Magistrate has applied his judicious mind

and I have already pointed out that mechanical order has

been passed by the learned Magistrate and hence it requires

interference of this Court and the matter has to be remitted

back to the Trial Court to consider the matter afresh and pass

appropriate order.

7. In view of the discussions made above, I pass the

following:

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 07.03.2020 is hereby quashed. The matter is remitted back to the learned Magistrate to consider the matter afresh and pass the order in view of the judgment of the Apex Court referred supra and also the observations made by this Court.

In view of allowing of the main petition, I.A.No.1/2021

for stay does not survive for consideration and the same

stands disposed of.

Sd/-

JUDGE

MD