Sri Ravi B R vs State Of Karnataka
2022 Latest Caselaw 2150 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                          BEFORE

     THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

            CRIMINAL PETITION NO.8431 OF 2019

BETWEEN:

1.   SRI RAVI B R
     S/O RAMA MURTHY B G
     AGED ABOUT 34 YEARS,
     R/AT FLAT NO.TF-1

2.   SRI VIJAYKUMAR R
     S/O SRI RAGAVENDRA RAO
     AGED ABOUT 49 YEARS
     R/AT FLAT NO.GF-3

3.   SRI PRADEEP PRAHLAD JOSHI
     S/O SRI PRAHLAD JOSHI
     AGED ABOUT 42 YEARS
     R/AT FLAT NO.TF-2

4.   SRI GURUDATT PATAKI
     S/O SRI JIVAJI VINAYK PATAKI
     AGED ABOUT 35 YEARS,
     R/AT FLAT NO.FF-1

5.   SRI LOKESWARA S.CH
     S/O SRI CH.NAGENDRA RAO,
     AGED ABOUT 38 YEARS,
     R/AT FLAT NO.FF-2,

     ALL ARE RESIDING AT
     CHAITHANYA ELITE APARTMENTS,
     NANJAPPA LAYOUT,
                                  2


       ARAKERE VILLAGE, B.G.ROAD,
       BENGALURU CITY - 560 076
       KARNATAKA.                            ...PETITIONERS

(BY SRI MURTHY.D.NAIK, SENIOR COUNSEL FOR
 SRI MAHENDRA.G., ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY HULIMAVU PS,
       SADASHIVANAGAR
       BENGALURU - 560 080.

       REPRESENTED BY
       STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       BENGALURU - 560 001.

2.     SMT.SARASWATHI
       W/O CHANDRASHEKHARA
       AGED ABOUT 46 YEARS,
       R/AT NO.250, 3RD PHASE,
       J.P.NAGAR,
       BENGALURU - 560 078.                 ...RESPONDENTS

(BY SRI ROHITH.B.J., HCGP FOR R1;
 SRI P M MATHEW, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION U/S 482 CR.PC PRAYING TO
QUASH THE FIR IN CR.NO.193/2019 ARISING OUT OF PCR
NO.9113/2019 FOR THE OFFENCE P/U/S 120B, 143, 352, 442, 354
OF IPC AS AGAINST THE PETITIONERS HEREIN, REGISTERED BY
HULIMAVU P.S., AND PENDING ON THE FILE OF THE V A.C.M.M.,
BENGALURU CITY PRODUCED AS ANNEXURE-A.

     THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
                               3


                          ORDER

This petition is filed seeking for quashing of the First

Information Report in Crime No.193 of 2019 arising out of

PCR No.9113 of 2019 for the offenceSs punishable under

Sections 120-B, 143, 352, 442, 354 of the Indian Penal Code,

1860.

2. The Respondent No.2 filed a private complaint

under Section 200 of the Criminal Procedure Code, 1973

alleging that on 24.03.2019 when the complainant was in her

home, all the accused trespassed into her home and started

abusing her. It is further alleged that the accused forced her

to go to the house of accused No.2 where they threatened her

that they would kill her children and her husband. They also

threatened her that their ladies will file a rape complaint

against her husband and her son so that their future will be at

stake. Thereby, constitute an offence under Sections 504 and

506 of IPC.

3. The learned Magistrate referred the complaint to

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

The police registered the FIR in Cr.No.193 of 2019. Being

aggrieved by the registration of the FIR, the present petition

is filed.

4. Shri Murthy.D.Naik, learned Senior Counsel

appearing for the petitioners' counsel made the supporting

submissions:

• The private complaint filed by Respondent No.2 is not

maintainable since the complainant has not satisfied

the requirements of Sections 154(1) and 154(3) of

Cr.P.C.

• In support of his submission, reliance is placed on the

decision of the Apex Court in the case of PRIYANKA

SRIVASTAVA AND ANOTHER Vs. STATE OF UTTAR

PRADESH AND OTHERS reported in 2015(6) SCC 287.

• He further submits that the second respondent having

suffered an order of temporary injunction in O.S.No.

8091 of 2018 has filed a complaint as a counter blast

so as to circumvent the orders passed by the Civil

Court.

• He further submits that the second respondent without

giving a notice in writing asking the petitioner to

withdraw from the premises belonging to her as

required under Section 441 of Karnataka Amendment

Act 40 of 2014, the present complaint filed by the

complainant for the offence punishable under Section

442 is not maintainable.

5. On the other hand, learned counsel appearing for

Respondent No.2 would submit that the allegations made in

the complaint constitute an offence punishable for the

offences alleged against the petitioner. He further submits

that the documents annexed along with the private complaint

clearly establishes that the petitioner assaulted the

complainant. Hence, he submits that referring of the

complaint to the police for investigation under Section 156(3)

of Cr.P.C. is perfectly legal and the same does not warrant

any interference.

6. I have examined the submissions made by the

learned counsel for the parties.

7. A perusal of the complaint discloses that

Respondent No.2 has not filed an affidavit stating that before

lodging the private complaint, the requirements of Sections

154(1) and 154(3) of Cr.P.C. were complied. The Apex Court

in the case of Priyanaka Srivastava (supra) at Paragraphs

No.30 and 31 has held as under:

"30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C.

applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without tasking any

responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial

dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR".

8. The Co-ordinate Bench of this Court in Criminal

Petition No.1422 of 2021 and connected petitions disposed of

on 22.07.2021 at Paragraph No.28 has held as under:

"The direction given in Priyanka Srivastava has been held to be mandatory in many judgments of this court (referred supra). It is not mere directory or recommendatory as argued by Sri.Sushil Kumar Jain. In the case on hand, of course an affidavit has been filed, it is just a verifying affidavit and does not indicate that the complainant exhausted the remedies under Section 154(1) and Section 154(3) Cr.P.C. There is nothing to show that he approached the jurisdictional police first and then the Superintendent of Police. The case on hand is such that the complainant cannot straight away approach the court of Magistrate with a complaint under Section 200 Cr.P.C., unlike, for instance, a complaint

for the offence under Section 138 of N.I. Act, where the law itself prescribes that the Magistrate can only entertain a complaint. The Magistrate appears to have not applied his mind before proceeding further. He ought to have directed the complainant to file a proper affidavit. Thus looked, entertaining the complaint is bad in law, the complaint should have been rejected at the threshold. Therefore point No.(iii) is answered in affirmative".

9. In the complaint, Respondent No.2 has stated that

the husband of the complainant has filed a complaint before

the jurisdictional police registered as NCR No.300 of 2019. It

is further stated that the police neither warned the accused

nor took any action against the accused. Hence, it is implied

that the second respondent has not complied with the

requirement under Sections 154(1) and 154(3) of Cr.P.C.

Hence, the private complaint filed by Respondent No.2

without complying with the requirements of Sections 154(1)

and 154(3) of Cr.P.C.n is not maintainable.

10. It is undisputed that in O.S.No.8091 of 2018, the

jurisdictional Civil Court has restrained Respondent No.2 from

making further construction on the schedule property in

violation of the sanctioned plan. Hence, it is implied that

Respondent No.2 as an after-thought has filed the complaint

to circumvent the order passed by the Civil Court with malice

and without probable cause. In view of the preceding

analysis, I am of the considered view that the private

complaint field by Respondent No.2 without complying the

requirements of Sections 154(1) and 154(3) of Cr.P.C. is not

maintainable. Accordingly, I pass the following:

ORDER

i) The criminal petition is allowed.

ii) The impugned First Information Report in Crime

No.193 of 2019 arising out of PCR No.9113 of 2019

pending on the file of V Additional Chief Metropolitan

Magistrate, Bengaluru is hereby quashed.

Sd/-

JUDGE

DH