IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR CRL.P. NO.4018/2019 BETWEEN 1. MR ARVIND JERAM KOTECHA (INCORRECTLY SHOWN IN THE FIR AS ARIVIND JERAM KOTECHA), SON OF JERAM DAMODAR KOTECHA, AGED AROUND 77 YEARS, R/AT NO. 6TH FLOOR, RAM MAHAL BUILDING, 8, DINSHAW WACHA ROAD, MUMBAI 2. MR. NARESH MADHAVA S/O. MADHAVA, AGED ABOUT 44 YEARS, ADDRESSEE OF MAVINKERE ESTATE, MAVINKERE VILLAGE, POST. KALASA, MUDIGERE TALUK 577 124 3. MR. N. CHANDRASHEKAR S/O. NANU POOJARY, AGED ABOUT 44 YEARS, ADDRESSEE OF MAVINKERE ESTATE, MAVINKERE VILLAGE, POST. KALASA, MUDIGERE TALUK 577 124 4. MR. CHANNAPPA SHETTY AGED ABOUT 60 YEARS, M/S. GOJANUR AND CO.
HAVING ITS OFFICE AT 1195/1561. WARD NO. 29, 2ND PARALLEL ROAD, DURGIGUDI, SHIVAMOGGA 577 201 ...PETITIONERS (BY SRI ASHOK HARANAHALLI, SR. ADV. FOR SRI C K NANDAKUMAR, ADVS.) AND 1. STATE OF KARNATAKA THROUGH KALASA POLICE STATION, KALASA MAIN ROAD, KALASA 577 124 REP BY SPP HIGH COURT BUILDING, BENGALURU.
2. MR. PRABHUDAS DAMODAR KOTECHA S/O. DAMODAR JINABHAI KOTECHA, AGED ABOUT 90 YEARS, THROUGH CONSTITUTED ATTORNEY MR.RUPIN DAMODAR KOTECHA S/O MR.PRABHUDAS DAMODAR KOTECHA AGED ABOUT 53 YEARS, BOTH COMPLAINANT AND GPA HOLDER R/AT NO. FLAT NO. 16, RAM MAHAL BUILDING, 5TH FLOOR, 8, DINSHAW WACHA ROAD, MUMBAI.
(BY SMT. K.P.YASHODHA, HCGP FOR R1, SRI RAVI B.NAIK, SR. ADV. FOR SRI K.G.SADASHIVAIAH, ADV. FOR R2.) ...RESPONDENTS THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.21/2019 FILED BY THE KALASA POLICE ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, MUDIGERE (ANNEXURE-C) THE COMPLAINT AND THE ENTIRE PROCEEDINGS IN PCR.NO.78/2019 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, MUDIGERE (ANNEXURE- A AND B) AS AGAINST THE PETITIONERS.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned senior counsel Sri. Ashok Haranahalli appearing on behalf of the petitioners and the learned senior counsel Sri. Ravi B. Naik appearing on behalf of the respondent.
2. The case is canvassed on a short point that the order referring the case for investigation by the jurisdictional police in exercise of the powers vested in the trial court under Section 156(3) of Cr.P.C stands vitiated on the twin grounds of the same being contrary to the law laid down by the Hon’ble Apex Court in the case of Anil Kumar and Others v.
M.K. Aiyappa and Another, reported in (2013) 10 SCC 705 wherein the Hon’ble Apex Court has reiterated its own dictum rendered in the case of Maksud Saiyed v. State of Gujarat reported in (208) 5 SCC 668. The learned Senior Counsel would also rely on the law laid down by the Hon’ble Apex Court in (2015) 6 SCC 287 in the case of Priyanka Srivastava and Another v. State of Uttar Pradesh and Others.
3. It is contended by the learned senior counsel Sri. Ashok Haranahalli appearing on behalf of the petitioners that the order dated 29.03.2019 is one that is passed without application of mind. That a bare reading of the order would clearly demonstrate that the Magistrate has neither adverted to the contents of the complaint or to any other material placed before the court prior to exercising its powers under Section 156(3) of Cr.P.C and thereby directing the P.S.I. Kalasa Police to investigate the matter and submit a report stands vitiated. In this regard the Hon’ble Apex Court in the case of Anil Kumar & Others, stated supra, after placing reliance on its own judgment in Maksud Saiyed’s case stated supra, has observed these in para 11, 14 and 15 as follows:-
“11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.
14. In State of W.B. v. Mohd. Khalid, this Court has observed as follows:
“13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out.”
The meaning of the said expression was also considered by this Court in Subramanian Swamy case.
15. The judgments referred to hereinabove clearly indicate that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre- cognizance stage.”
The Hon’ble Apex Court in the case of Priyanka Srivastava’s case referred to supra has in para 20 and 25 observed as follows:-
“20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:
“156.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 XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat, while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p. 456, para 22) “22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine ‘existence of sufficient ground to proceed’.”
4. Per contra the learned senior counsel Sri. Ravi B. Naik appearing on behalf of the respondent would submit that the High Court cannot stifle the investigation at the initial stage itself and that investigation ought to be allowed. The learned senior counsel for the respondent place reliance on the ruling of the Hon’ble Apex Court rendered in the case of Sau. Kamal Shivaji Pokarnekar vs. The State of Maharashtra & Ors. rendered in Crl.A. No.255/2019 vide order dated 12.02.2019 where the Hon’ble Apex Court in para 9 has held as follows:-
“9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.”
5. This court has adverted to the respective contentions and has also perused the rulings placed before the court. No doubt the learned senior counsel is right in contending that the investigations cannot be stifled at the initial stage on merits. Be that as it may, in the light of the law laid down by the Hon’ble Apex Court and as rightly contended by the learned senior counsel for the petitioners the same relates to the procedural aspects where the law mandate that a particular thing which is required to be done in a particular manner ought to be done in that manner only. The law laid down by the Hon’ble Apex Court is binding on the Justice Dispensation System and the trial court was required to adhere to the law laid down by the Hon’ble Apex Court in the Anil Kumar’s case and Priyanka Srivastava’s case both stated supra. The trial court has fallen in error, in the matter of procedure which could be addressed by quashing the order dated 29.03.2019 and remitting the matter back to the trial court for consideration of further action in accordance with law as stated by the Hon’ble Apex Court in the Anil Kumar’s case and Priyanka Srivastava’s case stated supra.
6. Accordingly, the petition is partly allowed. The order dated 29.03.2019 passed in P.C.R. No.78/2019 on the file of the Court of the Additional Civil Judge & JMFC, Mudigere is set-aside.
7. The setting aside of the order shall not come in the way of the trial court to proceed afresh in accordance with law as laid down by the Hon’ble Apex Court in the case of Priyanka Srivastava’s case & Anil Kumar’s case stated supra. Consequently, the FIR as Crime No.0021/2019 dated 26.04.2019 on the file of the First respondent police station also stands quashed.
8. It is made clear that the complainant shall appear before the trial court on 27.12.2019 without waiting for any notice from the trial court.
Copy of the order to be forwarded to the trial court.
Chs* CT-HR Sd/- JUDGE