[Cites 24, Cited by 0]
Karnataka High Court
Sri Mahadevaiah vs The State Of Karnataka on 7 April, 2026
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 4250 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4250 OF 2026
BETWEEN:
1. SRI MAHADEVAIAH
S/O KIKKERIGOWDA
AGED ABOUT 63 YEARS
R/O NO.13, 5TH CROSS,
KHB MAIN ROAD
MARAGOWDANAHALLI
GOPALAPPA LAYOUT
BENGALURU CITY - 560 032
2. SRI DHARMA
S/O KIKKERIGOWDA
AGED ABOUT 53 YEARS
NO.4, 2ND B CROSS
Digitally MUNESHWARA LAYOUT
signed by
SANJEEVINI J MANORAYANAPALYA
KARISHETTY
BENGALURU CITY - 560 032
Location: High
Court of ...PETITIONERS
Karnataka (BY SRI. NATARAJ G.M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY SALIGRAMA POLICE STATION
K R NAGARA TALUK
MYSURU DISTRICT - 571 604
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA BUILDING
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CRL.P No. 4250 of 2026
HC-KAR
BENGALURU-560001
2. SMT KANTHAMANI
W/O KULLEGOWDA
AGED ABOUT 48 YEARS,
ANKANAHALLI VILLAGE,
CHUNCHANAKATTE HOBLI
K R NAGARA TALUK
MYSURU DISTRICT
PIN-571604
...RESPONDENTS
(BY SRI. B.N. JAGADEESHA, ADDL. SPP FOR R1)
THIS CRL.P FILED U/S 482 CR.PC (FILED U/S 528 BNSS)
BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONOURABLE COURT MAY BE PLEASED TO QUASH THE ORDER
DATED 17-02-2026 IN P.C.R NO. 24/2026 ON THE FILE OF THE
I ADDL. CIVIL JUDGE AND J.M.F.C. AT K.R.NAGARA, MYSURU
DISTRICT AND CONSEQUENTLY QUASH THE FIRST
INFORMATION REPORT IN CRIME NO. 0075/2026 DATED 23-
02-2026 REGISTERED BY SALIGRAMA POLICE STATION, K.R.
NAGARA TALUK, MYSURU DISTRICT, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 318, 319, 335 R/W 3(5) OF
THE BHARATIYA NYAYA SAMHITA, 2023, TO THE EXTENT IT
CONCERNS THE PETITIONERS/ACCUSED NO. 1 AND 2.
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CRL.P No. 4250 of 2026
HC-KAR
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners are before this Court calling in question
the order of reference dated 17-02-2026 passed in P.C.R.No.24
of 2026 and the subsequent registration of a crime in Crime
No.75 of 2026, for the offences punishable under Sections 318,
319, 335 read with Section 3(5) of the BNS, 2023.
2. Heard Sri. Nataraj G.M., learned counsel appearing
for the petitioners, Sri. B.N. Jagadeesha, learned Addl. SPP
appearing for respondent No.1 and have perused the material
on record.
3. The petitioners are accused Nos.1 and 2.
Respondent No.2 is the complainant. The complainant registers
a private complaint invoking Section 223 of the Cr.P.C. for
several offences. The concerned Court refers the matter to the
jurisdictional police for investigation under Section 175(3) of
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the BNSS. Pursuant to the investigation, the jurisdictional
police then register a crime in Crime No.75 of 2026 for the
aforesaid offences. The issue in the lis is not with regard to the
merit of the complaint before the concerned Court. The
concerned Court refers the matter for investigation without
following the procedure as stipulated under Section 175 of the
BNSS. The order of the concerned Court reads as follows:
"1. Complainant is present along with her counsel and
filed the present complaint. Perused the complaint and
the documents submitted along with the complaint. The
offence alleged in the present complaint are punishable
under section 318, 319, 335 R/w Sec.3(5) of Bharathiya
Nyaya Sanhitha (for the seek of brevity the same is
hereinafter referred to as BNS). The alleged offences are
cognizable offence. I have perused the complaint
averments as well as the documents submitted by the
complainant along with the complaint. It discloses that
before filing this complaint before this court the complaint
has approached the PSI of Saligrama P.S as well as the
Superintendent of Police, Mysuru to take appropriate
action against the accused. Furthermore, even the
complainant has also filed affidavit for having exhausted
all the remedies available under Section 173(1) and
173(4) of Bharathiya Nagarik Suraksha Sanhitha. But the
police have not taken any action against the accused.
Therefore, ultimately the complainant has filed the
present complaint.
2. The complaint as well as the documents discloses that
the complainant has exhausted the remedies available
under Section 173(1) and 173(4) of Bharathiya Nagarik
Suraksha Sanhitha. (for the seek of brevity the same is
hereinafter referred to as BNSS). In that regard, the
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complainant has also filed her affidavit. Thereby the
complainant has complied with the mandates imposed by
the Hon'ble Apex Court in the case of Priyanka Srivastava
and another Vs. State of U.P and others reported in
(2015) 6 SCC 287 which is reiterated by the Hon'ble High
Court of Karnataka in the case of Sri. Sathya Sai Central
Trust and another Vs. State of Karnataka and others in
Crl. Petition No.1422/2021 dated: 22.07.2021.
3. The complaint averments and the documents
submitted along with the complaint prima facie discloses
the commission of offence by the accused persons.
Hence, in the above background this court proceed to
pass the following:
ORDER
Acting under section 175(3) of B.N.S.S this case is
referred to the concerned jurisdictional P.S to
investigate into the matter and to submit the
report.
Await final report.
Call on:05/06/2026"
The concerned Court appears to have blissfully ignored
the rigour of Section 175(3) of the BNSS insofar as referring
the matter to the jurisdictional police for investigation without
hearing the concerned police officer.
4. Section 175 of the BNSS and the procedure to be
followed under the said section has borne interpretation at the
hands of this Court in the case of C.N. GOVINDARAJU v.
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STATE OF KARNATAKA1. This court, in the aforesaid case
observes as follows:
"....... ....... .......
11. But, what has merited consideration is the
subsequent development after filing of the petition which is
the judgment of the Apex Court in the case Om
Prakash (supra). The private complaint against the
petitioners comes to be registered invoking Section 223 of
BNSS on 11-09-2024. The prayer sought in the private
complaint is as follows:
"WHEREFORE, we most humbly pray that this
Hon'ble Court be pleased to refer the above
complaint to the jurisdictional police i.e.,
Bellandur Police for investigation under Section
175(3) of Bharatiya Nagarika Suraksha Sanhita,
2023 and to submit report before this Hon'ble
Court, in the interest of justice."
(Emphasis added)
Investigation was sought from the hands of the
jurisdictional police under Section 175(3) of the BNSS,
rightly so as by then BNSS was in place with effect from 01-
07-2024. Since the complaint itself is registered after 01-
07-2024, the procedure under BNSS ought to have been
followed by the concerned Court in terms of Section 175(3)
of BNSS. Section 175 of BNSS reads as follows:
"175. Police officer's power to investigate
cognizable case.--(1) Any officer in charge of a
police station may, without the order of a
Magistrate, investigate any cognizable case
which a Court having jurisdiction over the local
area within the limits of such station would have
power to inquire into or try under the provisions
of Chapter XIV:
Provided that considering the nature and gravity of
the offence, the Superintendent of Police may require
the Deputy Superintendent of Police to investigate the
case.
(2) No proceeding of a police officer in any such
case shall at any stage be called in question on the
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ground that the case was one which such officer was
not empowered under this section to investigate.
(3) Any Magistrate empowered under Section
210 may, after considering the application
supported by an affidavit made under sub-
section (4) of Section 173, and after making
such inquiry as he thinks necessary and
submission made in this regard by the police
officer, order such an investigation as above-
mentioned.
(4) Any Magistrate empowered under Section 210,
may, upon receiving a complaint against a public
servant arising in course of the discharge of his official
duties, order investigation, subject to--
(a) receiving a report containing facts and
circumstances of the incident from the officer
superior to him; and
(b) after consideration of the assertions made by the
public servant as to the situation that led to the
incident so alleged."
(Emphasis supplied)
Section 175 deals with Police Officer's power to
investigate a cognizable offence. Sub-section (3)
thereof mandates that any Magistrate empowered
under Section 210 of the BNSS may, after considering
the application supported by an affidavit under sub-
section (4) of Section 173 and after making such
inquiry as he thinks necessary and submission made
in this regard by the Police Officer, order an
investigation which would mean that prior to
directing investigation to be ordered, the Police
Officer of the jurisdictional police must be heard.
12. In the case at hand, the order of reference for
investigation does not indicate following of any of the
procedure as necessary in law. Whether this would vitiate
the order of reference or otherwise, need not detain this
Court for long or delve deep into the matter. The Apex
Court in the case of Om Prakash (supra) considered this
issue and held as follows:
".........
28. However, before we part with the matter,
we deem it necessary to discuss the changes
brought to the scheme of Section 156 of the Cr.
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P.C. by the enactment of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (for short, "the BNSS").
29. Section 175 of the BNSS corresponds to
Section 156 of the Cr. P.C. Sub-section (1) of
Section 175 of the BNSS is in parimateria with
sub-section 156(1) of the Cr. P.C. except for the
proviso which empowers the Superintendent of
Police to direct the Deputy Superintendent of
Police to investigate a case if the nature or
gravity of the case so requires. Sub-section (2) of
Section 175 the BNSS is identical to
Section 156(2) of the Cr. P.C. Section 175(3) of
the BNSS empowers any Magistrate who is
empowered to take cognizance under Section 210
to order investigation in accordance with Section
175(1) and to this extent is in parimateria with
Section 156(3) of Cr. P.C. However, unlike
Section 156(3) of the Cr. P.C., any Magistrate,
before ordering investigation under Section
175(3) of the BNSS, is required to:
a. Consider the application, supported by an
affidavit, made by the complainant to the
Superintendent of Police under Section
173(4) of the BNSS;
b. Conduct such inquiry as he thinks necessary;
and
c. Consider the submissions made by the police
officer.
30. Sub-section (4) of Section 175 of the BNSS
is a new addition to the scheme of investigation
of cognizable cases when compared with the
scheme previously existing in Section 156 of
the Cr. P.C. It provides an additional safeguard to
a public servant against whom an accusation of
committing a cognizable offence arising in the
course of discharge of his official duty is made.
The provision stipulates that any Magistrate who
is empowered to take cognizance under Section
210 of the BNSS may order investigation against
a public servant upon receiving a complaint
arising in course of the discharge of his official
duty, only after complying with the following
procedure:
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a. Receiving a report containing facts and
circumstances of the incident from the officer
superior to the accused public servant; and
b. Considering the assertions made by the
accused public servant as regards the
situation that led to the occurrence of the
alleged incident.
31. A comparison of Section 175(3) of the
BNSS with Section 156(3) of the Cr. P.C. indicates
three prominent changes that have been
introduced by the enactment of BNSS as follows:
a. First, the requirement of making an application
to the Superintendent of Police upon refusal
by the officer in charge of a police station to
lodge the FIR has been made mandatory, and
the applicant making an application under
Section 175(3) is required to furnish a copy of
the application made to the Superintendent of
Police under Section 173(4), supported by an
affidavit, while making the application to the
Magistrate under Section 175(3).
b. Secondly, the Magistrate has been empowered
to conduct such enquiry as he deems
necessary before making an order directing
registration of FIR.
c. Thirdly, the Magistrate is required to consider
the submissions of the officer in charge of the
police station as regards the refusal to
register an FIR before issuing any directions
under Section 175(3).
32. The introduction of these changes by the
legislature can be attributed to the judicial
evolution of Section 156 of the Cr.
P.C. undertaken by a number of decisions of this
Court. In the case of Priyanka Srivastava v. State of
U.P., (2015) 6 SCC 287, this Court held that prior to
making an application to the Magistrate under
Section 156(3) of the Cr. P.C., the applicant must
necessarily make applications under Sections
154(1) and 154(3). It was further observed by
the Court that applications made under
Section 156(3) of the Cr. P.C. must necessarily be
supported by an affidavit sworn by the applicant.
The reason given by the Court for introducing
such a requirement was that applications under
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Section 156(3) of the Cr. P.C. were being made in
a routine manner and in a number of cases only
with a view to cause harassment to the accused
by registration of FIR. It was further observed
that the requirement of supporting the complaint
with an affidavit would ensure that the person
making the application is conscious and also to
see that no false affidavit is made. Once an
affidavit is found to be false, the applicant would
be liable for prosecution in accordance with law.
This would deter him from casually invoking the
authority of the Magistrate under Section 156(3).
The relevant observations made by the Court are
reproduced hereinbelow:
"27. Regard being had to the aforesaid
enunciation of law, it needs to be reiterated that the
learned Magistrate has to remain vigilant with
regard to the allegations made and the nature of
allegations and not to issue directions without
proper application of mind. He has also to bear in
mind that sending the matter would be conducive to
justice and then he may pass the requisite order.
The present is a case where the accused persons are
serving in high positions in the Bank. We are
absolutely conscious that the position does not
matter, for nobody is above the law. But, the
learned Magistrate should take note of the
allegations in entirety, the date of incident and
whether any cognizable case is remotely made out.
It is also to be noted that when a borrower of the
financial institution covered under the Sarfaesi Act,
invokes the jurisdiction under Section 156(3) Cr.
P.C. and also there is a separate procedure under
the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, an attitude of more care,
caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the
application" to lodge an FIR creates a very
unhealthy situation in society and also reflects the
erroneous approach of the learned Magistrate. It
also encourages unscrupulous and unprincipled
litigants, like Respondent 3, namely, Prakash Kumar
Bajaj, to take adventurous steps with courts to bring
the financial institutions on their knees. As the
factual exposition would reveal, Respondent 3 had
prosecuted the earlier authorities and after the
matter is dealt with by the High Court in a writ
petition recording a settlement, he does not
withdraw the criminal case and waits for some kind
of situation where he can take vengeance as if he is
the emperor of all he surveys. It is interesting to
note that during the tenure of Appellant 1, who is
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presently occupying the position of Vice-President,
neither was the loan taken, nor was the default
made, nor was any action under the SARFAESI Act
taken. However, the action under the SARFAESI
Act was taken on the second time at the instance of
the present Appellant 1. We are only stating about
the devilish design of Respondent 3 to harass the
appellants with the sole intent to avoid the payment
of loan. When a citizen avails a loan from a financial
institution, it is his obligation to pay back and not
play truant or for that matter play possum. As we
have noticed, he has been able to do such
adventurous acts as he has the embedded
conviction that he will not be taken to task because
an application under Section 156(3) Cr. P.C. is a
simple application to the court for issue of a
direction to the investigating agency. We have been
apprised that a carbon copy of a document is filed to
show the compliance with Section 154(3), indicating
it has been sent to the Superintendent of Police
concerned.
29. At this stage it is seemly to state that power
under Section 156(3) warrants application of judicial
mind. A court of law is involved. It is not the police
taking steps at the stage of Section 154 of the Code.
A litigant at his own whim cannot invoke the
authority of the Magistrate. A principled and really
grieved citizen with clean hands must have free
access to invoke the said power. It protects the
citizens but when pervert litigations takes this route
to harass their fellow citizens, efforts are to be made
to scuttle and curb the same.
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 taking 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.
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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 be clearly spelt out in the
application and necessary documents to that effect
shall be 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, [(2014) 2 SCC 1 : (2014) 1 SCC
(Cri) 524] are being filed. That apart, the learned
Magistrate would also be aware of the delay in
lodging of the FIR."
(Emphasis supplied)
33. In a recent pronouncement of this Court in
the case of Babu Venkatesh v. The State of
Karnataka, (2022) 5 SCC 639, the observations
made in Priyanka Srivastava (supra) were referred
to and it was held as follows:
"24. This Court has clearly held that, a stage
has come where applications under
Section 156(3) Cr. P.C. are to be supported by an
affidavit duly sworn by the complainant who seeks
the invocation of the jurisdiction of the Magistrate.
25. This Court further held that, in an
appropriate case, the learned Magistrate would be
well advised to verify the truth and also verify the
veracity of the allegations. The Court has noted
that, applications under Section 156(3) Cr. P.C. are
filed in a routine manner without taking any
responsibility only to harass certain persons.
26. This Court has further held that, prior to the
filing of a petition under Section 156(3) Cr. P.C.,
there have to be applications under
Sections 154(1) and 154(3) Cr. P.C. This Court
emphasises the necessity to file an affidavit so that
the persons making the application should be
conscious and not make false affidavit. With such a
requirement, the persons would be deterred from
causally invoking authority of the Magistrate, under
Section 156(3) Cr. P.C. Inasmuch as if the affidavit
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is found to be false, the person would be liable for
prosecution in accordance with law."
(Emphasis supplied)
34. In light of the judicial interpretation and
evolution of Section 156(3) of the Cr. P.C. by
various decisions of this Court as discussed above,
it becomes clear that the changes introduced by
Section 175(3) of the BNSS to the existing scheme
of Section 156(3) merely codify the procedural
practices and safeguards which have been
introduced by judicial decisions aimed at curbing
the misuse of invocation of powers of a Magistrate
by unscrupulous litigants for achieving ulterior
motives.
35. Further, by requiring the Magistrate to
consider the submissions made by the concerned
police officer before proceeding to issue directions
under Section 175(3), BNSS has affixed greater
accountability on the police officer responsible for
registering FIRs under Section 173. Mandating the
Magistrate to consider the submissions of the
concerned police officer also ensures that the
Magistrate applies his mind judicially while
considering both the complaint and the
submissions of the police officer thereby ensuring
that the requirement of passing reasoned orders is
complied with in a more effective and
comprehensive manner."
(Emphasis supplied)
In the light of the issue already considered by the
Apex Court, the order of reference is rendered
unsustainable for it being in violation of sub-section
(3) of Section 175 of BNSS, inasmuch as the Police
Officer was not heard prior to order of reference for
investigation to the jurisdictional Police. In that light,
the petition deserves to succeed, albeit in part and the
matter requires to be remitted back to the hands of the
learned Magistrate to redo the exercise of reference.
13. The Apex Court elucidates the reason behind
the change and observes that the hearing of the
concerned police officer before proceeding to issue
direction for reference under Section 175(3) of the
BNSS, fixes a greater accountability on the police
officer responsible for registering a FIR under Section
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175(3) of the BNSS. It further mandates that the
concerned Court to consider the submissions of the
concerned police officer and ensures that the
Magistrate would apply his mind while referring the
matter for investigation on consideration of the
complaint and submissions of the police officer.
14. This Court is coming across plethora of cases
where the concerned Courts do not follow the
conditions stipulated in Section 175 or Section 223 of
the BNSS. The concerned Courts should mandatorily
follow the procedure stipulated in Section 175(3)
while referring the matter to investigation by the
jurisdictional police. The marked difference of Section
175(3) of the BNSS and Section 156(3) of the IPC, the
earlier regime is that, the opinion of the police officer
to whom the matter was to be referred for
investigation is a prerequisite for reference. It was
not even a requisite. Section 175(3) has brought
about a change. The change is, prior to referring the
matter for investigation under Section 175(3) of the
BNSS, the police officer is required to be heard.
Therefore, this procedure under Section 175(3) of the
BNSS should be mandatorily followed by every Court,
be it the Magistrate or the Court of Sessions of
particular jurisdiction, so that it would avoid
mushrooming of litigations before this Court alleging
that particular procedural aberration.
15. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed in part.
(ii)The order of reference dated 26-10-2024 and the
subsequent registration of FIR pursuant to the order
of reference stand quashed.
(iii)The matter is remitted back to the hands of the
concerned Court to redo the exercise in terms of sub-
section (3) of Section 175 of BNSS as is held by the
Apex Court bearing in mind the observations made in
the course of the order. The said exercise shall be
concluded within 4 weeks from the date of receipt of
a copy of this order.
(iv) The Registry is directed to circulate this order to all
the concerned Courts for strict adherence of the
procedure stipulated under section 175(3) of the
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BNSS to all the complaints that at registered post
01.07.2024."
(Emphasis supplied)
The order passed by the concerned Court referring the
matter for investigation though is reasoned and lengthy, it
suffers from the procedural aberration, but not non-application
of mind.
5. In the light of the aforesaid judgment of this Court and
the procedures as stipulated under Section 175 of the BNSS not
being followed, I deem it appropriate to obliterate the order
and remit the matter back to the hands of the concerned Court
for consideration afresh, bearing in mind the observations
made in the course of the order.
6. For the aforesaid reasons, the following:
ORDER
(i) The petition is allowed-in-part.
(ii) The order of reference dated 17-02-2026 passed in
P.C.R.No.24 of 2026 pending before the file of the
I Additional Civil Judge and JMFC,
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Krishnarajanagara, Mysuru and the subsequent
registration of FIR in Crime No. 75 of 2026 qua the
petitioners stands quashed.
(iii) The matter is remitted back to the hands of the
concerned Court to redo the exercise in terms of
sub-section (3) of Section 175 of BNSS bearing in
mind the observations made in the course of this
order. The said exercise shall be concluded within
four (4) weeks from the date of receipt of a copy of
this order.
Sd/-
(M.NAGAPRASANNA)
JUDGE
SJK
List No.: 1 Sl No.: 40
CT:SG
