Karnataka High Court

M/S Umrah Developers vs The State Of Karnataka on 2 April, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

                                               -1-
                                                              NC: 2024:KHC:13575
                                                          WP No. 1572 of 2024




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 2ND DAY OF APRIL, 2024

                                            BEFORE
                        THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                        WRIT PETITION NO. 1572 OF 2024 (GM-RES)
                   BETWEEN:

                   M/S UMRAH DEVELOPERS
                   HAVING ITS OFFICE AT NO 22/1,
                   MILLERS TANK BUND ROAD,
                   KAVERIAPPA LAYOUT,
                   BENGALURU - 560052
                   REPRESENTED BY ITS PROPRIETOR,
                   SRI . YUSUF SHERIFF

                                                                    ...PETITIONER
                   (BY SRI. C.V. NAGESH, SENIOR COUNSEL FOR
                       SRI. GAURAV N.,ADVOCATE)

                   AND:

                   1.   THE STATE OF KARNATAKA
                        THROUGH JAYANAGAR POLICE STATION,
                        REPRESENTED BY STATE PUBLIC PROSECUTOR,
Digitally signed        HIGH COURT BUILDING,
by                      BENGALURU - 560001
NARAYANAPPA
LAKSHMAMMA
                   2.   SRI. NAVEED MOHAMMED
Location: HIGH          AGED ABOUT 51 YEARS
COURT OF
KARNATAKA               S/O MOHAMMED ATTAULLA,
                        R/AT J. SONS DEVELOPERS,
                        NO 128/3, 19TH B CROSS,
                        ELEPHANT ROCK ROAD,
                        3RD BLOCK, JAYANAGAR,
                        BENGALURU - 560011

                                                                  ...RESPONDENTS
                   (BY SRI. PRAMOD NARI., SENIOR COUNSEL FOR
                       SRI. ANAND MUTTALI.,ADVOCATE FOR R2;
                       SRI. CHANNAPPA ERAPPA., HCGP FOR R1)
                                  -2-
                                               NC: 2024:KHC:13575
                                             WP No. 1572 of 2024




      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH FIR DATED
06/04/2019 BEARING CRIME NO. 0073/2019 PRODUCED HERETO AS
ANNEXURE-A WHICH WAS REGISTERED BY THE R1 HEREIN, BASED
ON A COMPLAINT LODGED BY R2 HEREIN, PRODUCED HERETO AS
ANNEXURE-B, IN SO FAR AS THE AS THE PRESENT PETITIONER IS
CONCERNED, FOR THE ALLEGED OFFENCES PUNISHABLE U/S 406,
420 IPC, 1860 AND ETC.

     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

1. The petitioners are before this Court seeking for the

following reliefs:

i. Quash the FIR dated 06/04/2019 bearing Crime No. 0073/2019 produced hereto as Annexure-A which was registered by the R1 herein, based on a complaint lodged by R2 herein, produced hereto as Annexure-B, in so far as the as the present petitioner is concerned, for the alleged offences punishable u/s 406, 420 IPC, 1860.-

ii. To quash the charge sheet dated 28/03/2023, produced hereto as Annexure-E, filed before the IV Addl. Chief Magistrate, Bengaluru, in so far as the present petitioner is concerned, for the alleged offences punishable u/s 406, 420 of the Indian Penal Code 1860.-

iii. To quash entire proceedings in CC No. 10899/2023, pending on the file of the IV Addl Chief Metropolitan Magistrate, Bengaluru, in so far as the present petitioner is concerned. A copy of the entire order sheet maintained in the case in Cc No. 10899/2023, which is presently pending on the file of the IV Addl. Chief Metropolitan Magistrate, Bengaluru, is produced hereto as Annexure-F.

NC: 2024:KHC:13575

iv. Grant any such Order, Direction and/or Relief or Reliefs as deemed fit and proper in the circumstances of the case in the interest of justice.

2. Sri.C.V.Nagesh, learned Senior Counsel though

submits that there are various other grounds for the

present petition, he restricts the arguments to the

order of cognizance taken on 04.05.2023.

3. His submission is that after the trial Court had

granted bail, the matter was adjourned to

13.06.2019 and on 13.06.2019, the trial Court had

directed for the case to be put up after the receipt of

final report. The final report having been received on

04.05.2023, an order was passed taking cognizance.

By distinguishing two portions of the said order, his

submission is that the first portion of the order is one

which is not recorded by the Magistrate but by a

ministerial officer and the second portion of the order

does not indicate any application of mind by the

Magistrate to take cognizance and therefore, he

submits that the order of taking cognizance is bad in

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law. His submission is also that if the Magistrate has

not applied his mind to the charge sheet which has

been filed to ascertain if there are any offences made

out punishable as alleged in the charge sheet, then

the order of cognizance would not be sustainable.

4. Sri.Pramod Nair, learned Senior Counsel appearing

for respondent No.2 would submit that both the

portions of the order are by the Magistrate and are

typed to the dictation of the Magistrate. If both

portions are taken together, they would indicate that

there is an application of mind by the Magistrate

since in the first portion it is categorically indicated

that the statement of the witnesses were perused so

also material on record and thereafter cognizance

was taken. On this basis, he submits that this

ground has not been made out and the petition

cannot be allowed on that sole basis.

5. Having heard both the counsel, being of the

considered opinion that this particular ground is now

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sufficient to decide the petition, the other arguments

of both counsels were not heard.

6. The order dated 04.05.2023 is reproduced hereunder

for easy reference:-

"The charge sheet submitted by PSI, Jayanagar PS against accused No.1 in Crime No.73/2019 for the offence punishable U/s. 406, 420 IPC. The Original FIR and complaint enclosed. Charge Sheet and connected papers checked. Perused the statement of the witnesses and materials on record. Accused No.1 is on regular bail. Charge Sheet copy furnished. For orders.

Order Cognizance is taken for the offence punishable U/s 406, 420 IPC. Register the criminal case in Criminal Case Register No. III against accused No.1. Issue SS to accused no.1. Returnable by 03.08.2023."

7. A perusal of the first portion of the order indicates

that a charge sheet has been submitted by the PSI,

Jayanagar and that the original FIR and complaint

are enclosed. It is further submitted that the charge

sheet and connected papers are checked. A further

noting has been made that the accused No.1 is on

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regular bail and charge sheet copy has been

furnished. These statements made in the order

sheet in my considered opinion cannot be said to be

a judicial order but can only be a ministerial act of

the file being put up. The only portion which could

be said to be a judicial order is the portion which

indicates 'perused the statement of the witnesses

and materials on record'.

8. The proceedings being criminal in nature it is not

only at the time of passing the judgment and

conviction that the benefit is to be extended to the

accused but even at the interlocutory stage. Having

perused the so called order dated 04.05.2023, I am

unable to come to a conclusion that the first portion

is one which would qualify to be a judicial order

passed by the Magistrate to the contra I am of the

opinion that the same is a note which has been put

up by a ministerial officer as aforesaid.

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9. If the first portion of the order dated 04.05.2023 is

eschewed, the second portion of the order only

indicates that cognizance is taken for offences

punishable under Section 406, 420 IPC and the

direction having been issued to register the criminal

case. This in my considered opinion would not

amount to proper application of mind by the

concerned Magistrate while taking cognizance since

there is no reference made to the charge sheet or

the offence, nature of the offence or the like. In that

view of the matter, I am of the considered opinion

that at this stage itself it would be proper for the said

order dated 04.05.2023 to be set aside and matter

remitted to the Magistrate to enable the Magistrate

to pass appropriate orders by applying his mind to

the charge sheet presented lest it becomes an issue

in future.

10. It would also be required that a detailed enquiry be

held into the matter by the Chief Metropolitan

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Magistrate to ascertain as to who has made the entry

of the first portion of the order dated 04.05.2023

since it appears that a Ministerial Officer has made

such an entry. In the event of it being found that it

is the Ministerial Officer who has made such an

entry, the Chief Metropolitan Magistrate to take

action as required since the Ministerial Officer has

made use of the portion of right side of the order

sheet which is exclusively reserved for judicial

orders. Ministerial officers are prohibited from

making any entry on the right side of the order

sheet. Enquiry to be conducted and report to be

submitted within 6 weeks from the date of receipt of

copy of this order.

11. The Registrar (General) is also directed to issue

necessary instructions to all the Ministerial Officers to

not write or type anything on the right side of the

order sheet but to use only the left side. Any such

note to be made under the heading as an office note

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and signed by the Ministerial Officer. In view of the

above, I pass the following:

ORDER

i) The Criminal Petition is partly allowed.

ii) The second portion after the heading of the

order taking cognizance of the offence under

Section 406, 420 IPC dated 04.05.2023 is set

aside since I have come to a conclusion that

first portion is only an entry made to put up the

charge sheet.

iii) The matter is remitted to the Magistrate for

passing fresh orders on the charge sheet by

applying his mind. Such orders to be passed

within a period of 15 days from the date of

receipt of copy of this order and in the event

the Magistrate were to take cognizance, the

Magistrate would proceed thereon in

accordance with law.