IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRL.P.NO.5783 OF 2013 BETWEEN:
1. R. SAHANA D/O RAGHAVENDRA MURTHY AGED ABOUT 24 YEARS 2. RAGHAVENDRA MURTHY S/O K.R. NARASIMHIAH AGED ABOUT 65 YEARS BOTH ARE RESIDING AT ‘BARADWAJ’ NO. 384, 5TH MAIN, 1ST STAGE H.B.R. LAYOUT, 3RD BLOCK BANGALORE – 560 043.
(BY SRI. G. VIKRAM – ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY K.R. PURAM P.S. BANGALORE PIN CODE – 560 036.
2. KARTHIK .V S/O C.V. VENKATESH AGED ABOUT 27 YEARS RESIDING AT NO.57 5TH F CROSS, 1ST BLOCK AKSHAYA NAGAR …PETITIONERS T.C. PALYA ROAD BANGALORE – 560 016.
... RESPONDENTS (BY SRI VIJAYA KUMAR MAJAGE – ADDL. SPP FOR R-1; SRI G.S. CHAKRAVARTHY – ADV., FOR R-2 - ABSENT) THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR IN CR. NO. 490/2013 BY THE 1ST RESPONDENT POLICE FOR OFFENCES P/U/S. 506 & 420 OF IPC AT ANNEXURE-A PURSUANT TO A PRIVATE COMPLAINT FILED BY THE SECOND RESPONDENT IN PCR NO. 52032/2013 ON THE FILE OF THE X ACMM., MAYO HALL, BANGALORE.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners are aggrieved by the registration of FIR in Cr.No.490/2013 against them for the offences punishable under Sections 506 and 420 of IPC.
2. Respondent No.2 lodged a private complaint against the petitioners under Section 200 of Cr.P.C. read with section 420 of IPC. In the complaint, it is alleged that the complainant belong to Tamil Gounder caste and accused persons belong to Brahmin caste. During the college days one Raveena, a friend of accused No.1 introduced accused No.1 to the complainant and gradually they devleoped friendship and later it turned into matrimonial relationship and they decided to marry each other. After studies, the complainant joined Telecom Company to earn his livlihood. On account of their acquaintence, the complainant and accused No.1 fell in love with each other. Since accused No.1 had agreed to marry the complainant, both shared their matrimonial affairs each other and even accused No.2-father of accused No.1 and his family members had given their consent for the marriage. Accused No.1 moved with the complainant to all tourist places and enjoyed life in all respect. Accused No.1 also took huge money from the complainant and complainant also spent lavishly for their trips and enjoyment with a belief that accused No.1 will become his legally wedded wife anyway. After moving around for five years, accused No.2-father of accused No.1 refused to perform the marriage of accused No.1 with the complainant. Hence, the complainant sought action against both the accused persons and sought for the following reliefs:
“i. Direct the accused No.1 who is major in age to marry the complainant and to keep up her promise made to the complainant to lead happy matrimonial life throughout their life time;
ii. Direct the accused No.2 to stop the marriage of accused No.1 with the some other bridegroom as already arranged immediately and the same marriage may be arranged with the complianant as per Hindu Marriage rights and customs;
iii. Punish the accused persons for commission of breach of trust and cheating to the complainant to the tuen of Rs.10 lakhs;
iv. Pass any other suitable orders as deemed fit by this Hon’ble Court in the circumstances of the case; in the interest of justice.”
3. This petition, in my view, deserves to be allowed primarily on the ground of defect in the order of taking cognizance by the learned Magistrate, Bengaluru. The order sheet dated 31.08.2013 maintained by the learned Magistrate reads as under:-
“Complainant present. Heard counsel and register the Case as PCR and refer to SHO, K.R.Puram P.S. for Investigation u/s.156(3) Cr.P.C. For report by 30/11.”
4. The above order indicates that the learned Magistrate has referred the complaint for investigation without application of mind and without looking into the averments made in the complaint. There are no allegations in the complaint attracting Section 506 of IPC and even with regard to Section 420 of IPC. Except stating that the complainant fell in love with accused No.1 and continued to move about for five years, there is nothing in the entire complaint to show intention to dupe the complainant. In the absence of any such averments, it was not proper on the part of the learned Magistrate to direct investigation under Section 156(3) of Cr.P.C.
5. The order passed by the learned Magistrate referring the complaint for investigation under Section 156(3) Cr.P.C. is contrary 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. In the said decision, after reviewing various authorities on the subject in para 27 thereof, the Apex court 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. 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 proceedings initiated against the petitioners in Cr.No.490/2013 are quashed. The matter is remitted to the learned Magistrate, Bengaluru, to reconsider the matter afresh from the stage of receiving the private complaint.
All contentions urged in the petition are left open.
Sd/- JUDGE TL