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.6633/2016 c/w CRIMINAL PETITION Nos.6205/2016, 6630/2016 & 6632/2016 IN CRL.P.No.6633/2016:
BETWEEN:
H.C. Byre Gowda, S/o. Late Chikkanna, Aged about 62 years, R/at: 1288/3, Basaveshwara Nilaya, 1st Main, 3rd Cross, K.H.B.Colony, Govindarajanagar, Bengaluru – 560 040. ... Petitioner (By Sri. D.S. Hosmath, Advocate) AND:
1. The State of Karnataka, By its Station House Officer, Gyana Bharathi Police Station, Bengaluru – 560 098.
Rep By: SPP, High Court of Karnataka At Bengaluru – 560 001.
2. Yogesh, S/o. Late Byyanna, Aged about 28 years, R/at: No.7, 2nd Main, Vijayanagara, Bengaluru – 560 040. ... Respondents (By Sri. C.R. Raghavendra Reddy, Advocate for R2; Sri. Vijayakumar Majage, Addl. SPP for R1) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the proceedings in PCR.No.4914/2016 on the file of IV ACMM, Bengaluru.
IN CRL.P.No.6205/2016:
BETWEEN:
H.C. Byre Gowda, S/o. Late Chikkanna, Aged about 62 years, R/at: 1288/3, Basaveshwara Nilaya, 1st Main, 3rd Cross, K.H.B. Colony, Govindarajanagar, Bengaluru – 560 040. ... Petitioner (By Sri. D.S. Hosmath, Advocate) AND:
1. The State of Karnataka, By its Station House Officer, Gyana Bharathi Police Station, Bengaluru – 560 098.
Rep By: SPP, High Court of Karnataka At Bengaluru – 560 001.
2. Yogesh, S/o. Late Byyanna, Aged about 28 years, R/at: No.7, 2nd Main, Vijayanagara, Bengaluru – 560 040. ... Respondents (By Sri. C.R. Raghavendra Reddy, Advocate for R2; Sri. Vijayakumar Majage, Addl. SPP for R1) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the proceedings in PCR.No.4913/2016 (Cr.No.43405/2016) on the file of IV ACMM, Bengaluru City.
IN CRL.P.No.6630/2016:
BETWEEN:
H.C. Byre Gowda, S/o. Late Chikkanna, Aged about 62 years, R/at: 1288/3, Basaveshwara Nilaya, 1st Main, 3rd Cross, K.H.B. Colony, Govindarajanagar, Bengaluru – 560 040. ... Petitioner (By Sri. D.S. Hosmath, Advocate) AND:
1. The State of Karnataka, By its Station House Officer, Gyana Bharathi Police Station, Bengaluru – 560 098.
Rep By: SPP, High Court of Karnataka At Bengaluru – 560 001.
2. Yogesh, S/o. Late Byyanna, Aged about 28 years, R/at: No.7, 2nd Main, Vijayanagara, Bengaluru – 560 040. ... Respondents (By Sri. C.R. Raghavendra Reddy, Advocate for R2; Sri. Vijayakumar Majage, Addl. SPP for R1) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the proceedings in PCR.No.4668/2016 on the file of IV ACMM, Bengaluru.
IN CRL.P.No.6632/2016:
BETWEEN:
H.C. Byre Gowda, S/o. Late Chikkanna, Aged about 62 years, R/at: 1288/3, Basaveshwara Nilaya, 1st Main, 3rd Cross, K.H.B. Colony, Govindarajanagar, Bengaluru – 560 040. ... Petitioner (By Sri. D.S. Hosmath, Advocate) AND:
1. The State of Karnataka, By its Station House Officer, Gyana Bharathi Police Station, Bengaluru – 560 098.
Rep By: SPP, High Court of Karnataka At Bengaluru – 560 001.
2. Yogesh, S/o. Late Byyanna, Aged about 28 years, R/at: No.7, 2nd Main, Vijayanagara, Bengaluru – 560 040. ... Respondents (By Sri. C.R. Raghavendra Reddy, Advocate for R2; Sri. Vijayakumar Majage, Addl. SPP for R1) This Criminal Petition is filed u/s.482 of Cr.P.C praying to quash the proceedings in PCR.No.4912/2016 on the file of IV ACMM, Bengaluru.
These Criminal petitions coming on for Admission, this day, the Court made the following:
O R D E R In these four petitions, a common petitioner has challenged the proceedings initiated against him in PCR Nos.4914/2016, 4913/2016, 4668/2016 and 4912/2016 pending on the file of the IV Addl. Chief Metropolitan Magistrate, Bengaluru. Respondent No.2 in all the above petitions filed four private complaints under Section 200 Cr.P.C. against the petitioner and others alleging commission of offences punishable under Sections 420, 406, 120(B) r/w 34 of IPC.
2. Learned Magistrate referred the complaints for investigation under Section 156(3) of Cr.P.C. The petitioner herein is shown as accused No.1 in all the proceedings. Petitioner has approached this Court invoking jurisdiction of this Court under Section 482 of Cr.P.C. seeking to quash the above proceedings.
3. The learned counsel for the petitioner submits that the order of reference made by the learned Magistrate suffers from patent error and illegalities. The said order is opposed to the guidelines laid down by the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287. That the allegations made in the complaints are purely civil in nature. Reading of the private complaints indicate that the grievance of the complainant relates to execution of the alleged power of attorney, in respect of which civil suits are pending between the parties. Therefore, there was no basis for respondent No.2 to initiate criminal action against the petitioner. Respondent No.2 has attempted to convert the civil dispute into a criminal offence with an intent to coerce the petitioner and other accused to agree to his unlawful demand. Hence, the action initiated against the petitioner being abuse of process of Court is liable to be quashed.
4. Refuting the contentions, the learned counsel for respondent No.2 would submit that there are clear allegations in the complaint which attract the offences alleged against the petitioner. The said allegations are not of civil in nature. Therefore, the impugned proceedings cannot be quashed on the purported plea set up by the petitioner. Further, he submits that the learned Magistrate has not committed any error or illegality in directing investigation and hence, there are no grounds to quash the proceedings.
5. The learned Addl. SPP appearing for respondent No.1 would submit that the principle laid down in PRIYANKA SRIVASTAVA’s case are not applicable to the facts of the case. Respondent No.2 did not seek reference under Section 156(3) of Cr.P.C., rather the Court on its own accord exercised its discretion under Section 156(3) of Cr.P.C. to refer the complaint before taking cognizance of the offences. Therefore, there is no error or illegality whatsoever in the procedure adopted by the learned Magistrate and thus prays for dismissal of the petition.
6. Considered the submissions and perused the records.
7. The order passed by the learned Magistrate reads as under:
“Complainant is present. Heard submissions of advocate for the complainant. On the perusal of the complaint cognizable and non-bailable offences are disclosed. If an order is passed for investigation, there is scope to collect evidence during the course of investigation. A detail investigation is necessary. Taking into consideration nature of offences and other materials placed before the court, I proceed to pass following order:
ORDER 1. Complaint is referred for investigation U/s.156(3) of Cr.P.C. to SHO, Jnanabharathi Police Station.
2. Await report.”
8. A reading of the said order on the face of it indicates that the learned Magistrate perused the complaints and found that the allegations made therein disclosed cognizable as well as non-cognizable offences and hence in order to gather evidence in support of the accusations directed the concerned police to investigate into the matter. In my view, the said order is in accordance with Section 190 of Cr.P.C. as well as in accordance with the guidelines laid down by the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA’s case.
9. Section 190 of Cr.P.C. empowers the learned Magistrate to take cognizance of the offences and proceed with the matter when the jurisdiction of the learned Magistrate in invoked under Section 200 of Cr.P.C. Section 200 Cr.P.C. provides that when the learned Magistrate takes cognizance of an offence, then in such event, he can proceed to record the sworn statement of the complainant and thereafter, proceed in the matter in accordance with Sections 203 or 204 of Cr.P.C.
10. In the instant case, the learned Magistrate before taking cognizance of the offences was of the view that in order to take cognizance of the offences, further material is necessary and in that light, the learned Magistrate having directed investigation, the same is in accordance with the provisions of Section 190 of Cr.P.C.
Hence, this order, in my view, does not suffer from any illegality warranting interference by this Court.
11. For the above reasons, the guidelines laid down by the Hon’ble Supreme Court in PRIYANKA SRIVASTAVA’s case are also not applicable to the instant case. In the said case, after reviewing various authorities on the subject in para 27 thereof, the Hon’ble Supreme Court has held thus:-
“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.”
In the above decision, the procedure to be followed by the learned Magistrate while considering the case under Section 156(3) of Cr.P.C, is laid. Therefore, even on this count, the objection raised by the learned counsel for the petitioner is liable to be dismissed.
12. Coming to the merits of the case, the contention of the learned counsel for the petitioner that the dispute between the parties is purely civil in nature cannot be accepted. From the reading of the complaint, it could be gathered that the grievance of the complainant is that even though his father died on 30.04.2009, petitioner and other accused persons made use of the power of attorney executed by his late father and on the strength of the said power of attorney executed a sale deed. Further, the allegations against the petitioner and other accused persons is that even though the complainant’s father died in the year 2009, a rectification deed was brought into existence in the year 2013 on the strength of the power of attorney of the father of the complainant. These allegations, in my view, are of purely criminal in nature attracting the offences alleged against the petitioner and other accused persons, which are required to be investigated. Therefore, the contentions raised by the learned counsel for the petitioner, on this count also cannot be accepted. As a result, the petitions are liable to be rejected.
Consequently, the petitions are rejected. It is made clear that the investigating officer or the trial Court dealing with the matter shall not be influenced by the observations made in this order.
Sd/- JUDGE SV