IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3260/2014 BETWEEN:
1. NAGABHUSHAN S/O CHANNABASAVEGOWDA, AGED ABOUT 53 YEARS, COMMISSIONER, HASSAN CITY MUNICIPAL COUNCIL, HASSAN – 575 201.
2. SRI.PRAVEEN S/O LATE RAMESH AGED ABOUT 32 YEARS, JUNIOR ENGINEER, C.M.C, HASSAN-573 201.
3. SRI.NAGENDRAIAH H.P.
S/O LATE H.B.DHARMAPALAIAH, AGED ABOUT 52 YEARS, ASSISTANT EXECUTIVE ENGINEER, C.M.C, HASSAN – 574 210.
(BY SRI A.NAGARAJAPPA, ADV.) AND:
1. SRI.C.GOVINDEGOWDA S/O LATE CHELUVEGOWDA AGED ABOUT 70 YEARS, 3RD MAIN ROAD, 6TH CROSS, ... PETITIONERS HEMAVATHI CANAL, HASSAN – 573 201.
2. THE KARNATAKA LOKAYUKTHA BY LOKAYUKTHA POLICE, LOKAYUKTHA OFFICE, HASSAN.
(AMENDED V/O DATED 03.02.2016) ... RESPONDENTS (BY SRI H.R.GIRIDHAR, ADV. FOR SRI VENKATESH S.ARABATTI, ADV. FOR R2; R1 SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE PROCEEDINGS IN PCR NO.45/2013 IN THE COURT OF THE PRINCIPAL DISTRICT SESSIONS JUDGE AT HASSAN.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner has sought to quash the proceedings in PCR.No.45/2013(Annexure-‘A’) on the file of the Principal District and Sessions Judge, Hassan.
2. Heard learned counsel for the petitioners.
Counsel for the respondent seeks time to make his submissions. Perused the records.
3. A perusal of the order sheet discloses that on receipt of the private complaint lodged by the respondent, the learned Magistrate referred the complaint for investigation by the Dy.S.P., Lokayuktha, under Section 156(3) of Cr.P.C.
4. Learned counsel for the petitioners has produced copy of the order passed by this Court in Crl.P.No.6659/2014 dated 29.01.2019 where on identical facts, the order passed by the learned Magistrate referring the complaint under Section 156(3) of Cr.P.C. is dismissed with costs for non- application of mind. The order passed by the learned Magistrate on the face of it indicates that without applying his mind to the facts of the case, learned Magistrate has passed the impugned order dated 20.5.2013.
5. 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.”
6. For the above reasons, the petition is allowed. The order directing investigation of the complaint under Section 156(3) of Cr.P.C. insofar as petitioners are concerned is quashed. The matter is remanded to the trial Court to reconsider the matter afresh from the stage of presentation of complaint in accordance with law.
Sd/- JUDGE *alb/-.