Sri Nagaraju vs State Of Karnataka
2021 Latest Caselaw 1380 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF JANUARY, 2021

                          BEFORE

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

              CRIMINAL PETITION No.5077/2020

BETWEEN:

1.     SRI. NAGARAJU
       S/O. LATE BORAIAH
       AGED ABOUT 55 YEARS
       RESIDING AT DOOR NO.2,
       MANIVILAS GARDEN,
       5TH MAIN, AGADI P. RUDRAPPA ROAD,
       BEML LAYOUT,
       BASAVESHWARA NAGAR,
       BENGALURU - 560 079.

2.     SMT. HONNAMMMA
       W/O. RANGAPPA
       AGED ABOUT 75 YEARS
       RESIDING AT MACHOHALLI VILLAGE
       DASANAPURA HOBLI
       BENGALURU NORTH TALUK
       PIN - 560 091.                 ... PETITIONERS

            (BY SRI. VIJAYA KUMAR K., ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY MADANAYAKANAHALLI POLICE STATION
       BY STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING,
       BENGALURU - 560 001.
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2.    M/S. MATHAVIDYA KENDRA TRUST (R).
      NO.13, MATHA, 80 FEET ROAD,
      AMARJYOTHI NAGAR,
      VIJAYANAGAR,
      BENGALURU - 560 040.

      REPRESENTED BY ITS PRESIDENT
      SRI B.S. PUTTARAJU.                      ... RESPONDENTS

        (BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1
        SRI. S. KALYAN BASAVARAJ, ADVOCATE FOR R2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE PRIVATE COMPLAINT IN
PCR No.149/2020 DATED 13.08.2020 NOW PENDING ON THE
FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC,
NELAMANGALA (ANNEXURE-B) AND QUASH THE FIR IN
CR.NO.345/2020 (ANNEXURE-A) REGISTERED ON 09.09.2020
BY RESPONDENT No.1 POLICE AGAINST THE PETITIONERS FOR
THE ALLEGED OFFENCES PUNISHABLE UNDER SECTIONS 420,
467, 468 OF IPC.

     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 14.08.2020 passed by the

learned Magistrate in P.C.R.No.149/2020 pending on the file of I

Additional Civil Judge and JMFC and JMFC, Nelamangala,

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

investigation and to file Report.

2. The factual matrix of the case is that respondent

No.2 herein had filed the private complaint invoking Section 200

of Cr.P.C. for the offence punishable under Sections 420, 467

and 468 of IPC. Learned Magistrate having received the

complaint passed an order as follows:-

"Advocate Sri.Kallappa, Advocate for complainant present and presented the complaint. Heard. Office to register PCR and refer the matter to SHO, M.N.Halli P.S. for investigation and Report U/s.156(3) of CrPC."

3. Learned counsel appearing for the petitioners would

submit that the learned Magistrate has not applied his judicious

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

for investigation. While referring the matter for investigation, the

learned Magistrate has even not considered the contents of the

complaint and documents placed along with the complaint.

4. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

after referring the matter for investigation, FIR was registered

and almost investigation has been completed. However, not yet

filed the charge sheet.

5. Having heard both the learned counsel for the

parties with regard to non-application of mind is concerned,

referring the order above, the learned Magistrate except

ordering to register the case as PCR, he has not applied his

judicious mind even not referred as to whether he has perused

the contents of complaint and documents, but has mechanically

passed the order invoking Section 156(3) of Cr.P.C. The Apex

Court in the case of MAKSUD SAIYED V. STATE OF

GUJARATH AND OTHERS reported in (2008) 5 SCC 668

categorically held that the learned Magistrate before referring

the matter under Section 156(3) of Cr.P.C. has to apply his

judicious mind and pass appropriate orders.

6. With reference to the submission of non-compliance

of the principles laid down in the case of PRIYANKA

SRIVASTAVA AND ANOTHER v. STATE OF UTTAR PRADESH

AND OTHERS reported in (2015) 5 SCC 287, the Apex Court

has come to the conclusion that referring the matter for

investigation is nothing but an abuse of process. The factual

aspects of the case in Priyanka Srivastava's case is when there is

a protection under Section 32 of SARFAESI Act, and when the

proceedings was initiated against the Bank officials and when

they took recourse to recover the balance amount, a false

complaint was filed. Hence, the Apex Court has made an

observation that same is nothing but an abuse of process.

7. This Court would like to refer to the judgment of the

Apex Court rendered subsequent to the judgment of Priyanka

Srivastava's case i.e., in the case of HDFC Securities Ltd. and

Others v. State of Maharashtra and Another reported in AIR

2017 SC 61 with regard to referring the matter under Section

156(3) of Cr.P.C., it is held that stage of cognizance would arise

only after investigation report is filed before the Magistrate. The

order directing the Investigating does not amount to causing an

injury of irreparable nature and the said order cannot be

quashed at a premature stage. The Apex Court in paragraph

No.24 of the judgment held that exercising the powers under

Section 482 of Cr.P.C. at the stage of referring the matter under

Section 156(3) is nothing but premature and the same has to be

exercised sparingly.

8. The Apex Court in the case of DINESHBHAI

CHANDUBHAI PATEL V. STATE OF GUJARAT AND OTHERS

reported in 2018(3) SCC 104 with regard to considering the

quashing of FIR has summarized the principles as to how to deal

with context to challenge to FIR. It is held that the power vests

with the Investigating Officer under Section 157 of Cr.P.C. to

investigate the matter and the Court cannot act like an

investigating agency nor can exercise the powers like an

appellate Court, question is required to be examined, keeping in

view of the contents of the FIR and prima facie material, if any,

requiring no proof. Once the Court finds that FIR does discloses

prima facie commission of any cognizable offence, it should stay

its hand and allow the investigating machinery to step in to

initiate the probe to unearth the crime in accordance with the

procedure prescribed in the Cr.P.C.

9. Having perused the principles laid down in the

judgments referred supra HDFC Securities Ltd. and Others case

and Dineshbhai Chandubhai Patel's case (supra) and also taking

into consideration of the principles laid down in the Priyanka

Srivastava's case (supra), the Court has to look into the facts

and circumstances of each case. I have already pointed out that

when the lawful recourse was exercised by the bank officials, a

false case was filed against them and at that juncture,

considering the facts and circumstances of the case, the Apex

Court held in the Priyanka Srivastava's case (supra), that it is

nothing but an abuse of process. By considering the factual

aspects of the case is considered, in view of the decision

rendered by the Apex Court in HDFC Securities Ltd. and Others

case, subsequent to the said judgment, held that the order

directing the Investigating does not amount to causing an injury

of irreparable nature and the order cannot be quashed at a

premature stage.

10. In view of the discussion made above, I pass the following:-

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 14.08.2020 passed by the learned Magistrate in P.C.R.No.149/2020 pending on the file of I Additional Civil Judge and JMFC at Nelamangala, is quashed and the matter is remitted back to the learned Magistrate to consider the matter afresh and pass an appropriate order applying the judicious mind.

In view of the disposal of the main petition, I.A., if any does not survive for consideration and the same stands disposed of.

Sd/-

JUDGE PYR