IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1518/2013 BETWEEN:
1. NIAN THEMES NO.104/2C, GROUND FLOOR, TAVAREKERE MAIN ROAD, BANGALORE-560 029.
REP. BY ITS PARTNER SRI S.VARADARAJAN, S/O LATE SHESHADRI, AGED ABOUT 58 YEARS, NO.790, 8TH CROSS, YELAHANKA NEW TOWN, BANGALORE-560 106.
2. SRI S.VARADHARAJAN S/O LATE SHESHADRI, AGED ABOUT 58 YEARS, 3. SMT. NIRUPAMA W/O S.VARADARAJAN, AGED ABOUT 55 YEARS, BOTH PETITIONER NOS.2 & 3 ARE RESIDING AT NO.790, 8TH CROSS, YELAHANKA NEW TOWN, BANGALORE-560 106.
…PETITIONERS (BY SRI PAWAN KUMAR, ADVOCATE FOR SRI H.DEVENDRAPPA, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY S.R.NAGAR POLICE, BANGALORE-560 027.
2. M/S RELIANCE CAPITAL LTD., REGISTERED OFFICE AT NO.37, 3RD FLOOR, BHARMANAND COURT, LALBAGH ROAD, BANGALORE-560 027.
... RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1 R2-SERVED & UNREPRESENTED) THIS CRL.P IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN PCR NO.1916/2013 PENDING ON THE FILE OF THE IX A.C.M.M., BANGALORE.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioners and learned Addl. SPP for respondent No.1-State.
Respondent No.2 is served and unrepresented.
The grievance of the petitioners is that the learned Magistrate has referred the private complaint filed by the complainant for the offences punishable under Sections 420, 463, 468, 471, 474, 120(B) and 506 of IPC for investigation, without application of mind and without following 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.
2. The impugned order dated 04.02.2013 passed by the learned Magistrate reads as follows:
“Complainant present. Heard Sri R.P. Advocate. Register and refer this complaint to SHO, SR Nagar PS for investigation u/s 156(3) of Cr.P.C”.
3. The said order on the face of it indicates that the learned Magistrate has not even perused the complaint and the prayer made in the complaint. The complainant/respondent No.2 has sought in the prayer either to take cognizance of the offences by the Court or in the alternative to refer the matter for investigation under Section 156(3) of Cr.P.C. The learned Magistrate has straightaway referred the matter for investigation under Section 156(3) of Cr.P.C.
4. The procedure followed by the Magistrate is contrary to the guidelines laid down by the Hon’ble Supreme Court in Priyanka Srivastava’s case, wherein at paragraph No.27 it is held as under:
“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 paragraph Nos.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.”
5. In view of the above proposition of law and in the light of the observations made above, the impugned order cannot be sustained. Consequently, the petition is allowed. The impugned order dated 04.02.2013 passed by the IX Addl. Chief Metropolitan Magistrate, Bengaluru is quashed.
The matter is remitted to the learned Magistrate to proceed in the matter from the stage of receiving the private complaint.
The complainant is directed to appear before the learned Magistrate on 05.04.2019 without any further notice.
In view of disposal of the main petition, I.A.No.1/2016 does not survive for consideration and the same is dismissed.
Sd/-
JUDGE PB