Sri Mohammed Fazal Yakoob vs State Of Karnataka
2021 Latest Caselaw 789 Kant

                            1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY, 2021

                         BEFORE

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

             CRIMINAL PETITION No.4208/2020

BETWEEN:

1.   SRI MOHAMMED FAZAL YAKOOB,
     S/O YAKOOB SAMAD,
     AGED ABOUT 32 YEARS.

2.   SMT. KEHKASHA NIZAM SIDDIQUI,
     W/O MOHAMMED FAZAL YAKOOB,
     AGED ABOUT 26 YEARS.

3.   SRI MOHAMMED FASEEM YAKOOB,
     S/O YAKOOB SAMAD,
     AGED ABOUT 31 YEARS.

4.   SRI MOHAMMED HASEEB YAKOOB,
     S/O YAKOOB SAMAD,
     AGED ABOUT 32 YEARS.

5.   SRI YAKOOB SAMAD,
     S/O SRI S.A. SAMAD,
     AGED ABOUT 64 YEARS.

     PETITIONER NOS.2 TO 5 ARE REPRESENTED
     BY THE FIRST PETITIONER AS GPA HOLDER

     ALL ARE RESIDING AT NO.118,
     HENNUR MAIN ROAD,
     1ST CROSS, SAMAD SAHIB ROAD,
     KACHARAKANAHALLI,
                              2



       ST. THOMAS TOWN,
       BENGALURU-560 084.                     ... PETITIONERS

               (BY SRI SRIVASTHAVA H.K., ADVOCATE)

AND:

1.     STATE OF KARNATAKA,
       REP. BY SPECIAL PUBLIC PROSECUTOR,
       THE POLICE INSPECTOR,
       CHIKKAMAGALURU RURAL CIRLCE,
       ALDUR P.S, CHIKKAMAGALURU DISTRICT,
       KARNATAKA - 577 101.

2.     PADMASKSHE GOWDA,
       S/O LATE PITTASWAME GOWDA,
       AGED ABOUT 60 YEARS,
       RESIDING AT A.P. HOUSE,
       AGALA HANGARAVALLI,
       VASTHARE HOBLI,
       CHIKKAMAGALURU,
       KARNATAKA - 577 101.                  ... RESPONDENTS

              (BY SRI K.S. ABHIJITH, HCGP FOR R-1,
        SRI H.N. MANJUNATH PRASAD, ADVOCATE FOR R-2)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.PC PRAYING TO QUASH THE ORDER DATED 18.06.2020 PASSED
BY THE PRL.CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS
COURT,       CHIKKAMAGALURU        AT     CHIKKAMAGALURU
CONSEQUENTIALLY QUASHING THE FIR IN CR.NO.97/2020 DATED
21.06.2020 PENDING ON THE FILE OF THE PRL.CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS COURT, CHIKKAMAGALURU
AT CHIKKAMAGALURU AND ALL FURTHER PROCEEDINGS
PURSUANT THERE TO SECURE.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 07.01.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
                                 3



                           ORDER

This petition is filed under Section 482 of Cr.P.C. praying

this Court to quash the order dated 18.06.2020 passed by the

Principal Civil Judge and Judicial Magistrate, First Class Court,

Chikkamagalore and consequently quashing the FIR in Crime

No.97/2020 dated 21.06.2020 and pass such other relief as

deemed fit in the circumstances of the case.

2. The factual matrix of the case is that the

complainant had filed the complaint under Section 200 of Cr.P.C.

making the allegation in the complaint that accused No.5 had

entered into an agreement of sale with the complainant in terms

of the sale agreement dated 01.03.2019 and the same was

cancelled on 29.06.2019. It is the allegation in the complaint

that on the very same day, the sale deed is obtained

fraudulently by the accused persons and no consideration was

paid. The said complaint was presented before the learned

Magistrate and the learned Magistrate registered the case and

thereafter hearing the complainant, referred the matter to

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

3. The learned counsel for the petitioners vehemently

contend that in support of the complaint, no affidavit is filed and

the Magistrate did not apply his mind while referring the matter

under Section 156(3) of Cr.P.C. The learned counsel in support

of his contentions relied upon 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. Referring paragraph Nos.24, 30, 32 and 27

of the judgment, the learned counsel would submit that non-

filing of the affidavit or otherwise it amounts to abuse of process

and the Apex Court held that in order to prevent abuse of

process, affidavit has to be filed.

4. The learned counsel also relied upon the judgment of

the Apex Court in the case of ANIL KUMAR AND OTHERS v.

M.K. AIYAPPA AND ANOTHER reported in (2014) 1 SCC

(CRI) 35 with regard to the Magistrate is required to apply his

mind and cannot refer the matter under Section 156(3) of

Cr.P.C. against a public servant without a valid sanction order

and order must reflect the application of mind.

5. The learned counsel also relied upon the judgment of

this Court passed in Crl.P.No.9666/2017 dated 20.06.2019

and would submit that this Court has set aside the order on the

ground that the impugned order is contrary to the guidelines laid

down by the Hon'ble Apex Court in the case of MAKSUD

SAIYED v. STATE OF GUJARAT AND OTHERS reported in

(2008) 5 SCC 668. The learned counsel referring the principles

laid down in the judgment referred supra, would contend that no

detailed order has been passed by the Magistrate while referring

the matter for investigation and the same is not supported by

any affidavit of the complainant and inspite of the same, the

Magistrate has committed an error.

6. Per contra, the learned counsel appearing for the

respondent would contend that the Magistrate while registering

the case also heard the complainant and thereafter registered

the case. Apart from that, while directing the Investigating

Officer to investigate matter, heard the complainant and perused

the complaint and the documents which have been produced

along with the complaint. The Magistrate applied his mind and

passed the order that the complainant has made out sufficient

grounds and then only referred the matter to the Investigating

Officer under Section 156(3) of Cr.P.C.

7. The learned counsel for the respondent in support of

his arguments relied upon the judgment of the Apex Court in the

case of HDFC SECURITIES LTD. AND OTHERS v. STATE OF

MAHARASHTRA AND ANOTHER reported in AIR 2017 SC 61.

Referring this judgment, the learned counsel would submit that

directing the Investigating Officer, does not amount to causing

an injury of irreparable nature and the said order cannot be

quashed at a premature stage. The learned counsel brought to

the notice of this Court paragraph No.24 of the judgment and

would submit that the Apex Court held that while passing an

order under Section 156(3) of Cr.P.C. requiring investigation by

the police, cannot be said to have caused an injury of irreparable

nature which, at this stage, requires quashing of the

investigation. It is further observed that the stage of cognizance

would arise only after the investigation report is filed before the

Magistrate. Hence, power under Section 482 of Cr.P.C. cannot

be exercised and should be sparingly used.

8. The learned counsel also relied upon the order of this

Court passed in W.P.Nos.36759-36760/2019 dated

14.01.2020 and would submit that the judgment in the case of

Priyanka Srivastava (supra) was also referred in the said order

and this Court referring the judgment of the Apex Court referred

supra, has held that it is well settled proposition of law that

power under Section 482 of Cr.P.C. has to be exercised sparingly

and as the matter requires to be investigated and final report

has to be filed, without discussing the case on merits, held that

it is not a case to exercise the power under Section 482 of

Cr.P.C. However, liberty is given to the petitioners to challenge

the charge-sheet.

9. The learned counsel referring the above two

judgments would submit that the complaint averments are very

specific how the petitioners have committed the fraud and

cheated the complainant and the Magistrate has applied his mind

and not passed any mechanical order and considering the

complaint averments and the documents produced along with

the complaint, referred the matter for investigation. Hence, it

does not require any interference of this Court by exercising the

powers under Section 482 of Cr.P.C.

10. Having heard the submissions of the respective

learned counsel and also the principles laid down in the

judgments referred by both the learned counsel for the

petitioners and the learned counsel for the respondent, this

Court has to examine whether it is a fit case to exercise the

powers under Section 482 of Cr.P.C. to quash the order of

referring the matter for investigation.

11. Having perused the complaint, specific allegation is

made in the complaint how the documents of sale deed came

into existence in paragraph Nos.2 to 8 and enclosed 16

documents. On perusal of the order sheet, which is enclosed

along with this petition at Annexure-A discloses that when the

complaint was presented, the Magistrate heard the learned

counsel for the complainant and passed an order that the Court

is satisfied and thereafter ordered to register the PCR vide order

dated 17.06.2020. On perusal of the order dated 18.06.2020

when the matter came up before the Magistrate, the Magistrate

again heard the learned counsel for the complainant and passed

the order as follows:

"Heard learned counsel for complainant. Perused the complaint and documents. The complainant has made out sufficient grounds. Hence matter is referred to jurisdictional police for investigation under Section 156(3) of Cr.P.C. For await report by 18.08.2020."

12. Having perused the impugned order both in respect

of registering the same as PCR and also referring the matter

under Section 156(3) of Cr.P.C., heard the learned counsel for

the complainant and satisfied to register the case. Thereafter

heard the learned counsel for the complainant and the Trial

Judge applied his mind and specifically mentioned that he has

perused the complaint and also the documents. The learned

Magistrate also having perused the complaint and the

documents, formed an opinion that the complainant has made

out sufficient grounds to refer the matter for investigation.

Hence, the very contention that the learned Magistrate has not

applied his mind, cannot be accepted. No doubt, the Apex Court

in the case of Priyanka Srivastava (supra) held that it should

be supported by an affidavit and each case and facts and

circumstances has to be considered. In the said case, the Apex

Court has made an observation that in order to prevent the

abuse of process, affidavit is required to be filed and in the said

case, private complaint is filed against the officials of the bank

who have initiated the proceedings to recover the money against

the accused and hence the Apex Court held that it should not be

in routine and casual manner referring the matter and the Court

has to prevent abuse of process.

13. The factual aspects of the present case is different.

In the present case, allegation is that there was an agreement

between the parties and the same was cancelled on the

particular day. It is also the allegation against the accused

persons that on the very same day while canceling the sale

agreement, obtained the said deed fraudulently without payment

of any sale consideration and cheated the complainant and the

Court has to distinguish the facts and circumstances of the each

case. The learned counsel for the petitioners relied upon the

judgment of the Apex Court in the case of Anil Kumar (supra)

and judgment of this Court passed in Crl.P.No.9666/2017 and

this Court while setting aside the order, considered the judgment

of Maksud Saiyed (supra). The Apex Court in the recent

judgment which has been referred by the respondent counsel, in

the case of HDFC Securities Ltd. (supra) discussed the

judgment of Anil Kumar and Maksud Saiyed case and formed

an opinion in paragraph No.24, which I would like to refer. The

Apex Court in this judgment has categorically held that referring

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

investigation by the police, cannot be said to have caused an

injury of irreparable nature which, at this stage, requires

quashing of the investigation and if any power is exercised under

Section 482 of Cr.P.C., the same is nothing but premature and

further observed that Section 482 of Cr.P.C. has to be exercised

sparingly.

14. Having perused the principles laid down by the Apex

Court in the case of HDFC Securities Ltd. (supra), which has

considered other two judgments, though not considered the case

of Priyanka Srivastava (supra), but principle is very clear that

order directing investigation not causing an injury of irreparable

nature and cannot be quashed at premature stage when the

matter was referred under Section 156(3) of Cr.P.C. In the case

on hand also, I have already pointed out that the Magistrate not

only heard the learned counsel for the complainant and he has

satisfied to register the case as PCR and thereafter also with

regard to before passing the order under Section 156(3) of

Cr.P.C., heard the learned counsel for the complainant, perused

the complaint and also the documents enclosed along with the

complaint. But the Magistrate also formed his opinion that he is

satisfied with the contents of the complaint and the documents

and specific order has been passed that the complainant has

made out sufficient grounds. When the Magistrate has applied

his judicial mind and referred the matter under Section 156(3) of

Cr.P.C., the same cannot be held that no detailed order has been

passed. There is no need to pass detailed order also. Only it

requires application of mind while referring the matter for

investigation. Hence, I do not find any merit in the petition to

invoke Section 482 of Cr.P.C. to quash the proceedings referring

the matter under Section 156(3) of Cr.P.C. It is settled law that

Section 482 of Cr.P.C. has to be used sparingly only when there

is an abuse of process which leads to miscarriage of justice and

not otherwise. I do not find any such circumstances.

15. In view of the discussions made above, I pass the

following:

ORDER

(i) The petition is rejected.

(ii) The petitioners are given liberty to approach this Court, if charge-sheet is filed against them.

Sd/-

JUDGE

MD