Karnataka High Court
Mrs Vilasini Seevanthan vs State Of Karnataka on 25 January, 2021
Author: H.P.Sandesh
1
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.4276/2020
BETWEEN:
MRS. VILASINI SEEVANTHAN
AGED ABOUT 35 YEARS,
D/O. SEEVANATHAN,
NO.TF03, MAY FLOWER APARTMENT,
WHEELER ROAD, FRAZER TOWN,
BENGALURU NORTH,
BENGALURU-560 005,
ALSO OFFICE AT
M/S. VYMIGRATE MIGRATION AND
EDUCATION CONSULTANTS INDIA PVT. LTD.,
NO.211, 2ND FLOOR, EVA MALL,
60 BRIGADE ROAD,
BENGALURU-560 025. ... PETITIONER
[BY SRI. AYANTIKA MONDAL, ADVOCATE (VC)]
AND:
1. STATE OF KARNATAKA
REP BY ASHOK NAGAR POLICE STATION,
REP BY PUBLIC PROSECUTOR,
BENGALURU.
2. MR. PURUSHOTTAM. K
S/O. KAMALA KANNAN,
AGED ABOUT 44 YEARS,
2
NO.75, 6TH CROSS, KAMANAHALLI MAIN ROAD,
BENGALURU CITY,
KARNATAKA-560 084. ... RESPONDENTS
[BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1 (PHYSICAL HEARING)
SRI. SANTOSH S. GOGI, ADVOCATE FOR R2(VC)]
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH FIR BEARING No.59/2020
DATED 20.02.2020 OF ASHOK NAGAR POLICE STATION,
BENGALURU CITY WHICH IS PENDING ON THE FILE OF THE
LEARNED XXIX ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE COURT MAYO HALL UNIT, BENGALURU CITY FOR
OFFENCES REGISTERED UNDER SECTIONS 419, 420 AND 506
OF IPC, 1860.
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 15.02.2020 passed by the
learned Magistrate in PCR No.50506/2020 for the offence
punishable under Sections 419, 420 and 506 of IPC.
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. and on presentation of the complaint, the learned
Magistrate passed the following order:-
"Heard the complainant and perused the
materials placed on record. This complaint is referred
to ashoknagar P.S. for investigation u/s 156(3) of
Cr.P.C. The concerned IO is directed to submit final
report by next date of hearing. Await final report, call
on 121.05.2020."
3. Learned counsel for the petitioner would submit that
learned Magistrate while referring the matter under Section
156(3) of Cr.P.C. has not applied his judicious mind and
mechanically referred the matter for investigation without
looking into the contents of the complaint and the documents
placed along with the complaint.
4. Per contra, learned counsel appearing for the
respondent No.2 would submit that learned Magistrate while
passing the order mentioned that he has perused the materials
placed on record and referred the matter for investigation under
Section 156(3) of Cr.P.C. Hence, the learned Magistrate has
applied his mind.
5. Having heard the learned counsel for the petitioner
and learned counsel appearing for the respondent and on perusal
of the order impugned except mentioning that perused the
materials on record, learned Magistrate has not applied his mind
whether the offences invoked are cognizable or non cognizable
offence and even nothing is mentioned in the order whether he
has looked into the contents of the complaint and documents
produced along with the complaint. Without application of mind
the learned Magistrate has referred the matter under Section
156(3) of Cr.P.C. for investigation.
6. 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.
7. 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.
8. 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.
9. 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 referring the
matter under Section 156(3) of Cr.P.C. 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.
10. 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.
11. In view of the discussion made above, I pass the
following:-
ORDER
(i) The petition is allowed.
(ii) The impugned order dated
15.02.2020 in PCR No.50506/2020 is hereby
set aside and the matter is remitted back to the
Magistrate to consider the same afresh and
pass an appropriate order applying the
judicious mind in accordance with the principles
laid down in the judgments referred supra.
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
