Karnataka High Court
Srinivas N 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.3683/2020
BETWEEN:
1. SRINIVAS N
S/O NARAYANAPPA C
AGED ABOUT 47 YEARS,
2. VENKATESH N
S/O NARAYANAPPA C
AGED ABOUT 52 YEARS,
BOTH ARE RESIDING AT
NO.59, 2ND MAIN ROAD
MANI VILAS GARDEN
VRUSHABAVATHINAGAR,
KAMAKSHIPALYA,
BENGALURU NORTH
BASAVESHWARANAGAR,
BENGALURU-560 079. ... PETITIONERS
(BY SRI. M. SHASHIDHARA,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY RAJNUKUNTE P.S.
REP BY SPP
HIGH COURT OF KARNATAKA,
AT BENGLAURU-560 001.
2
2. SMT.LAKSHAMIDEVAMMA C
W/O LATE VENKATARAMANAPPA N
AGED 55 YEARS,
R/AT 59, 2ND CROSS, 2ND MAIN,
AMARAVATHI SCHOOL, MANIVILAS,
GARDEN KAMAKSHIPALYA,
BENGALUR NORTH
BENGLAURU-560 079. ... RESPONDENTS
(BY SMT. NAMITHA MAHESH B.G., HCGP FOR R1
SRI. KALYAN R., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO QUASH THE FIR IN CR.NO.36/2019 OF
RESPONDENT RAJANUKUNTE POLCE, REGISTERED ON THE
BASIS OF THE PCR No.148/2019 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 198, 199, 200, 120(B), 415,
417, 418, 419, 420, 425, 427, 464(A), 465, 468, 470 AND 471
READ WITH SECTION 34 OF IPC WHICH IS PENDING ON THE
FILE OF II ADDL.C.J.M., BENGALURU RURAL, BENGALURU.
THIS CRIMINAL PETITION COMING ON FOR ORDERS 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 11.03.2019 passed in PCR
No.148/2019 on the file of II Additional C.J.M. Bengaluru Rural
at Bengaluru against the petitioners for the offence punishable
under Sections 198, 199, 200, 120B, 415, 417, 418, 419, 420,
425, 427, 464A, 465, 468, 470 and 471 read with Section 34 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. for the offences referred above and the learned
Magistrate after receiving the complaint, passed the following
Order:-
"Presented on 11/03/2019 at 5.00 p.m.
Register the case as PCR complainant referred to
jurisdiction Police U/Sec. 156(3) of Cr.P.C. for
enquiry and report. For sworn statement Call on
27/04/2019."
3. Learned counsel for the petitioners would submit
that learned Magistrate while referring the matter under Section
156(3) of Cr.P.C. has not applied his mind and mechanically
passed the impugned order. While referring the matter to
investigation, the learned Magistrate has even not considered
the contents of the complaint and documents placed along with
the complaint.
4. Learned counsel for the petitioners would submit
that the complainant has not filed the affidavit as mandated in
view of the principles laid down in the judgment of the Apex
Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER
v. STATE OF UTTAR PRADESH AND OTHERS reported in
(2015) 5 SCC 287. Hence, the powers under Section 482 of
Cr.P.C. is to be exercised.
5. 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.
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 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.
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 in the Priyanka Srivastava's case (supra), held 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
11.03.2019 is 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
