Mr. Kashif Ali Khan vs State Of Karnataka
2021 Latest Caselaw 1438 Kant

                              1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 27TH DAY OF JANUARY, 2021

                          BEFORE

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

         CRIMINAL PETITION NO.5192 OF 2020

Between:

1.     Mr. Kashif Ali Khan,
       Aged about 63 years,
       S/o. Late Mr. Mir Ahmed Ali Khan,

2.     Mrs. Rubina Ali Khan,
       Aged about 52 years,
       W/o. Mr. Kashif Ali Khan,

       Both residing at
       No.A2902, Brigade Exotica,
       35 Old Madras Road,
       Bengaluru-560049.
                                           ... Petitioners
(By Sri. Akshaya B.M., Advocate)

And:

1.     State of Karnataka
       By Ashok Nagar Police Station,
       Represented by
       State Public Prosecutor,
       High Court Building,
       Bengaluru-560001.

2.     M/s. Skyline Developers
       A Company incorporated under
       Companies Act having office at
       No.206 & 207, 2nd Floor,
       Sophia's Choice,
       St. Marks Road, Bengaluru-560001
                              2



      Represented by its Authorized
      Representative, Mr. Avinash Prabhu,
                                               ... Respondents
(By Sri. K.S.Abhijith, HCGP for R1,
 R2 is served)

      This Criminal Petition is filed under Section 482 of
CR.P.C. praying to quash the order dated 24.07.2020
(Annexure-A) passed by the Hon'ble 29th A.C.M.M., Mayo
Hall, Bengaluru and quash all proceedings in PCR
No.53057/2020 before the Hon'ble 29th A.C.M.M., and etc

      This Criminal Petition coming on for Admission this
day, the court made the following:

                         ORDER

This petition is field under Section 482 of Cr.P.C.

praying this court to quash the order dated 24.07.2020

passed by the 29th ACMM, Mayo Hall, Bengaluru and

consequently the FIR dated 25.07.2020 and pass such

other orders.

2. The factual matrix of the case is that respondent

no.2 had filed the PCR before learned Magistrate and the

same is numbered as PCR.No.53057/2020 and the learned

magistrate after receiving the complaint through video,

passed the order after perusing the materials placed on

record register as PCR. This complaint is referred for

investigation. The concerned investigating officer is

directed to submit the report by next date of hearing.

Hence the petitioner is before the court.

3. The learned counsel would also submit that learned

magistrate has not applied his mind and mechanically

referred the matter for investigation and hence the

impugned order is liable to be set aside by exercising power

under Section 482 of Cr.P.C. This court has issued notice

against respondent no.2. Inspite of service of notice, the

second respondent did not choose to appear before the

court. The counsel for the State would submit that learned

Magistrate considering the materials on record passed an

order.

4. Having heard the argument of the learned counsel

and also on perusal of the order sheet dated 24.07.2020,

the learned magistrate has mechanically referred the

matter for investigation under Section 156(3). The learned

magistrate has not applied his mind as to whether it is fit

case to refer the matter for investigation or not as laid

down by the Apex Court in the case of MAKSUD SAIYED

v. STATE OF GUJARAT AND OTHERS reported in (2008)

5 SCC 668. The Apex Court in the said judgment held

that the learned magistrate has to apply his judicious mind

while referring the matter under Section 156(3) and form

an opinion whether it is a fit case to refer the matter for

investigation considering the contents of the complaint as

well as the documents produced. In the case on hand,

except mentioning that he perused the materials placed on

record, the learned magistrate has referred the matter for

investigation under Section 156(3) of Cr.P.C. Hence

requires inference of this court. In view of the above

observations, I pass the following:

ORDER

Petition is allowed. The order dated 24.07.2020

passed by the 29th Addl. Chief Metropolitan Magistrate,

Mayo Hall, Bengaluru is hereby quashed. Consequently FIR

dated 25.07.2020 is also quashed. The matter is remitted

back to learned Magistrate to pass appropriate order

applying his judicious mind as observed in the judgment

referred supra.

Sd/-

JUDGE

sd