IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.394 OF 2016 BETWEEN:
1. SMT. A. BHARATHI W/O A.NARAYANA RAJU, AGED ABOUT 42 YEARS, R/AT NO.1, HIG, 1ST PHASE, ’A’ SECTOR, YELAHANKA NEW TOWN, BENGALURU-560 064.
2. SRI.V.SRINIVASA RAJU S/O VARADA RAJU, AGED ABOUT 57 YEARS, R/AT NO.12, 10TH MAIN ROAD, RAJMAHAL VILAS EXTENSION, SADASHIVANAGAR, BENGALURU-560 080. ... PETITIONERS (BY SRI: V B SHIVA KUMAR, ADVOCATE) AND 1. STATE OF KARNATAKA BY STATION HOUSE OFFICER, YELAHANKA NEW TOWN POLICE STATION, YELAHANKA, BENGALURU.
2. SRI.V.SRINIVAS S/O LATE VENKATESHAPPA, AGED ABOUT 38 YEARS, AUTO DRIVER, NO.46, GANTIGANAHALLI, SINGANAYAKANAHALLI POST, YELAHANKA HOBLI, BENGALURU-560 065. ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: K.V.THIMMAIAH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 07.11.2015 PASSED IN PCR NO.13634/2015 ORDERING REFERENCE OF THE COMPLAINT OF THE FIRST RESPONDENT BEFORE THE SECOND RESPONDENT POLICE AUTHORITIES FOR INVESTIGATION AND REPORT PRESUMABLY IN EXERCISE OF THE JURISDICTION VESTED IN HIM U/S 156(3) OF THE CODE OF CRIMINAL PROCEDURE AND FURTHER BE PLEASED TO QUASH THE FIR IN CR.NO.340/2015 REGISTERED AT YELAHANKA NEW TOWN POLICE STATION, BENGALURU FOR THE OFFENCES WHICH ARE PENDING U/S 423, 465, 468, 471, 120(B) R/W 34 OF IPC AGAINST THE PETITIONERS NO.1 AND 2 PURSUANT TO THE ORDER OF REFERENCE MADE BY THE TRIAL MAGISTRATE.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard learned counsel for petitioners, learned counsel for respondent No.2 and learned Additional State Public Prosecutor for respondent No.1.
2. Even though petitioners have urged various grounds in the petition, learned counsel appearing for the petitioners has confined his submissions on the illegality committed by the learned Magistrate while referring the complaint for investigation under Section 156(3) of Cr.P.C. The order of reference reads as under:
“Complainant present. Complaint presented in open court through counsel. Register on PCR side. Complaint is referred to PSI, Yelahanka P.S., under section 156(3) Cr.P.C. for investigation. Await report and call on 7.12.2015.”
3. It only needs to be emphasized that the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287, after reviewing various authorities on the subject in para 27 thereof has held thus:-
“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.”
Further, in paras 30 and 31, it is held as under:-
“30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC 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.
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 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.”
4. In view of the above proposition of law and in the light of the observations made above, the impugned order cannot be sustained. Consequently, petition is allowed. The impugned order dated 7.11.2015 passed by the Chief Metropolitan Magistrate, Bengaluru city in PCR No.13634/2015 and all consequent proceedings arising subsequent thereto are quashed. The matter is remitted to the learned Magistrate to consider the complaint afresh in the light of the observations made in the above decisions. All other contentions urged by the parties are kept open.
bkp Sd/- JUDGE