IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5851 OF 2013 BETWEEN:
1. MR RAVI PURAVANKAR MAJOR IN AGE, MANAGING DIRECTOR OF M/S PURAVANKAR PROJECTS LTD., 2. MR ASHISH PURAVANKAR MAJOR IN AGE, JOINT MANAGING DIRECTOR OF M/S PURAVANKAR PROJECTS LTD., 3. MR SUNIL RAJ R MAJOR IN AGE, VICE PRESIDENT, LEGAL OF M/S PURAVANKAR PROJECTS LTD., ALL 1 TO 3 PETITIONERS ARE R/AT NO.130/1, ULSOOR ROAD, BANGALORE-560 042 ... PETITIONERS (BY SRI: C.V.NAGESH, SENIOR COUNSEL A/W SRI: RAGHAVENDRA K, ADVOCATE) AND 1. STATE OF KARNATAKA BY THE STATION HOUSE OFFICER, BYAPPANAHALLI POLICE STATION, BANGALORE 2. SRI RAKESH S SHETTY MAJOR IN AGE, S/O SANJEEV SHETTY, R/AT T-008,KRISHNA, DWELLINGTON, RMV 2ND STAGE, DEVI NAGAR, BANGALORE-560 084 3. SRI SRIMAN NARAYAN MAJOR IN AGE, S/O LATE RANGDHAM NAIDU, R/AT NO.414,7TH BLOCK, D-CROSS, KORAMANGALA, BANGALORE-560 031 4. SRI R JAYAPRAKASH MAJOR IN AGE, S/O LATE RANGDHAM NAIDU, R/AT NO.4, 9TH CROSS, WILSON GARDEN, BANGALORE-560 027 5. SRI P MADHAN MAJOR IN AGE, S/O LATE PANDURANG NAIDU, R/AT NO.414, 7TH BLOCK, D-CROSS, KORAMANGALA, BANGALORE-560 031 6. SRI P SUDHAN MAJOR IN AGE, S/O LATE PANDURANG NAIDU, R/AT NO.414, 7TH BLOCK, D-CROSS, KORAMANGALA, BANGALORE-560 031 ... RESPONDENTS (BY SRI: I.S.PRAMOD CHANDRA SPP-II FOR R1 SRI: VISHNU HEGDE, ADVOCATE FOR R2 R3 TO R6 ARE SERVED AND UNREPRESENTED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 31.08.2013 PASSED IN PCR 51672/2013 ON THE FILE OF THE X - ADDL. CHIEF METROPOLITAN MAGISTRATE, BANGALORE, THE CASE MAKING A REFERENCE OF THE COMPLAINT OF THE RESPONDENTS 2 TO 6 TO THE FIRST RESPONDENT - POLICE FOR INVESTIGATION AND REPORT UNDER SECTION 156(3) OF THE CODE OF CRIMINAL PROCEDURE, IN THE ENDS OF JUSTICE.
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 petitioners, learned SPP- II for respondent No.1-State and learned counsel for respondent No.2.
Respondent Nos.3 to 6 are served and unrepresented.
2. 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 read as follows:-
31.08.2013 “Complainant present. Memo is presented.
Complainant counsel present.
Hence referred to SHO, B.P. Halli Police Station for investigation and report under section 156(3) of Cr.P.C.
Sd/- 31/08”
3. I have gone through the complaint filed in the above case. The said complaint is filed under section 200 Cr.P.C. The learned Magistrate ought to have looked into the contents of the complaint before taking cognizance of the alleged offences. The learned Magistrate has not applied his mind to the facts of the case and has mechanically passed the said order which therefore cannot be sustained.
4. The main contention urged by Sri. C.V. Nagesh, Senior Counsel alongwith Sri. Raghavendra K, for the petitioners is that the order passed by the learned Magistrate on 31.08.2013 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. The allegations made in the complaint on the face of it do not disclose commission of any of the offences alleged against the petitioners. Without satisfying as to whether the allegations made therein constitute cognizance or non-cognizable offences, the learned Magistrate has mechanically directed investigation under Section 156(3) Cr.P.C. which itself amounts to abuse of process of Court.
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:-
“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 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 31.08.2013 passed by the X Addl. Chief Metropolitan Magistrate, Bengaluru is set-aside.
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 *mn/-