IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 03RD DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.264 OF 2013 BETWEEN:
K SHIVEGOWDA S/O KEMPEGOWDA AGED ABOUT 49 YEARS OCC: EXECUTIVE OFFICER HASSAN TALUK PACHAYAT HASSAN TALUK, HASSAN DISTRICT-573201 ... PETITIONER (BY SRI: R B DESHPANDE, ADVOCATE) AND:
1. THE STATE BY LOKAYUKTA POLICE HASSAN-573201.
2. A.B. UMESH S/O BASAVARAJ AGED ABOUT 37 YEARS R/AT HEMAVATHI NAGAR BENAK, 2ND MAIN ROAD, HASSAN TOWN-573201. ... RESPONDENTS (BY SRI: VENKATESH S.ARBATTI, SPECIAL PP FOR R1 SRI: NAGARAJU H.R., ADVOCATE FOR M.SHARASS CHANDRA, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT NO.2/2012 PENDING ON THE FILE OF THE PRL. DIST. & S.J., HASSAN AND ITS CONSEQUENTIAL PROCEEDINGS.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard the learned counsel for the petitioner and learned Special Public Prosecutor for respondent No.1 and learned counsel for respondent No.2.
2. The only ground on which the petitioner has sought to quash the private complaint filed by the second respondent is that the learned Special Judge has referred the said complaint to the Lokayukta police under section 156(3) of Cr.P.C. without applying his judicious mind and without even looking into the contents of the said complaint to ascertain whether the allegations made therein constitute cognisable or non-cognisable offence against the petitioner. It is further contended that except making bald and general allegations, the complainant has not alleged any specific instance of misappropriation or acts of corruption by the petitioner attracting the offences either under the provisions of Prevention of Corruption Act or under the provisions of Indian Penal Code and hence on both these grounds, the impugned action against the petitioner is liable to be quashed.
3. Defending the impugned order, learned counsel appearing for respondent No.2 however would submit that the matter is of the year 2012. Merely on the ground that the learned Special Judge has not stated in so many words that the complaint in question was perused by him cannot be a ground to quash the proceedings at this length of time as it would result in failure of justice, if the investigating agency is asked to investigate into the offence which is alleged to have taken place in the year 2006.
4. Without expressing any opinion on the rival contentions urged by the parties, suffice it note that the learned Special Judge while referring the complaint for investigation by the Lokayukta police has not even cared to peruse the allegations made in the complaint so as to ascertain whether the matter requires to be investigated. The impugned order reads as follows:
“Complaint received on 03-04-2012 at 3:15 p.m., and the matter is referred to Lokayuktha Police, under Section 156(3) Cr.P.C. to investigate and report by 10-05-2012.”
5. It is now well settled that even at the stage of referring the complaint for investigation by the police, learned Special Judge is required to apply his judicious mind and ascertain as to whether the allegations made in the complaint make out any cognisable or non-cognisable offence requiring investigation by the police or any other authorities. In MAKSUD SAIYED vs. STATE OF GUJARAT AND OTHERS, (2008) 5 SCC 668, the Hon’ble Supreme Court has held that the requirement of application of mind by the Magistrate before exercising jurisdiction under Section 156(3) Cr.P.C. is of paramount importance. The learned Special Judge having failed to apply his mind to the facts of the case, in my view, the impugned order directing investigation by the Lokayukta Police under Section 156(3) Cr.P.C. and the consequent registration of the FIR is liable to be set aside.
Accordingly, the petition is allowed. The impugned direction dated 03.04.2012 referring the complaint for investigation by the Lokayukta Police under section 156(3) Cr.P.C. and the consequent registration of the FIR in Cr.No.4/2012 is hereby set-aside. The matter is remitted to the learned Special Judge to pass appropriate orders on the complaint filed by the second respondent in accordance with law.
Sd/- JUDGE *mn/-