Basavaraju vs The State
2021 Latest Caselaw 1401 Kant

     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.3128 OF 2020

BETWEEN:

Mr.Basavaraju,
S/o M.Shankrappa,
Aged about 52 years,
Panchayath Development Officer,
Yarabhalli Grama Panchayathi,
Hiriyur,
Chitradurga District - 577 545.
                                                     ... Petitioner
(By Sri. Mallegowda H.P., Advocate)

AND:

1.     The State
       Represented by
       Imangala Police Station,
       Hiriyur Tauk,
       Chitradurga District - 577 545.

2.     Mr.Jagadeesh,
       Aged about 35 years,
       Grama Panchayat Member
       Yarabahalli, Hiriyur Taluk,
       Chitradurga District - 577 545.
                                                  .. Respondents
(By Smt.Namitha Mahesh.B.G., HCGP for R1;
    R2 is served)
                          -----

      This Criminal Petition is filed under Section 482 of Cr.P.C.
praying to quash the entire proceedings in Annexure - C in PCR
No.27/2020 filed in Junior Civil Court and JMFC at Hiriyur and
etc.,
                                      2



      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 set aside the order passed by the

Junior Civil Court and JMFC at Hiriyur in PCR

No.27/2020 dated 05.05.2020 referring the matter under

section 156(3) of Cr.P.C. for investigation.

2. The factual matrix of the case is that

respondent No.2 had filed the private complaint that the

petitioner herein has committed an offence under Sections

149, 193, 406, 420, 421, 465, 468, 477A of IPC.

3. The learned Magistrate after receiving the

complaint has passed an order as follows:

            "Complainant        present        vide     VC      and
            submitted his arguments.
            The    complainant      has        exhausted         all

remedies available before approaching this Court. Hence, after perusing the materials on records.

The complainant has alleged that Yaraballi Grama Panchayat members an measuring

the Government funds and also not taking any action to provide water to location. Hence, concerned Police station @ Imangala PS is hereby directed as per Section 156(3) Cr.P.C. to register the FIR and investigate the matter."

4. The learned counsel appearing for the petitioner

would submit that the learned Magistrate has not applied

his mind by referring the matter under Section 156(3) of

Cr.P.C.

5. The learned counsel also relied upon the

judgment of Priyanka Srivastava and another Vs State

of Uttar Pradesh and others reported in (2015)6 SCC

287 would contend that not filed an affidavit as held by the

Apex Court. It is also the contention of the learned counsel

that the provisions under Section 197 of Cr.P.C. have not

been complied while registering the case.

6. Per contra, the learned counsel appearing for

the respondents would submit that the learned Magistrate

while passing the order made the reference that he had

perused the records and he has applied the mind and it

cannot be in an order for quashing.

7. The learned counsel appearing for the State

also would submit that the learned Magistrate has perused

the records and passed the order.

8. Having heard the respective counsel and on

perusal of the order impugned except mentioning that

perused the record, the learned Magistrate has not applied

his judicious mind while referring the matter under

Section 156(3) of Cr.P.C. The order has been passed

mechanically without application of mind whether the

offences invoked in the complaint constitute cognizable

offence or non-cognizable offence. In view of the judgment

of the Hon'ble Apex Court reported in (2008)5 SCC 668 in

case of Maksud Saiyed Vs State of Gujarat and others,

it is categorically held that before referring the matter

under Section 156(3) of Cr.P.C. the learned Magistrate has

to apply his judicious mind or otherwise it amounts to an

abuse of process.

In view of the discussion made above, I made the

following :-

ORDER

The petition is allowed.

The impugned order passed by the Junior

Civil Court and JMFC at Hiriyur in PCR

No.27/2020 dated 05.05.2020 is hereby quashed.

The matter is remitted back to the trial

Court for fresh consideration and pass an

appropriate order after applying the judicious

mind.

Sd/-

JUDGE ssb