IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 BEFORE THE HON' BLE MR.JUSTICE R DEVDAS CRIMINAL PETITION NO.5212/2016 BETWEEN 1 . SRI. ABDULLA M S/O MAMMUNI, AGED ABOUT 60 YEARS, RTD. A.R.S.I 2 . SRI. K.MOHAMMED NISAR SHOWN AS M.A.ABDUL NISSAR, S/O M ABDULLA AGED ABOUT 43 YEARS, 3 . SRI.M.A.JAFFER SADHIK S/O M ABDULLA AGED ABOUT 43 YEARS, ALL PETITIONERS ARE R/AT BLOCK-3, DASAVALA ROAD, WARD NO.5, MADIKERI TALUK KODAGU-571201 (BY SRI VENKATESH R BHAGAT, ADVOCATE) AND B.P. RAJEEVLOCHANNA S/O LATE POOVAIAH, AGED 47 YEARS, THALATHMANE POST, MADIKERI TALUK, KODAGU-571201 ...PETITIONERS …RESPONDENT (BY SRI N SRINIVAS & SRI A S KISHORE KUMAR, ADVOCATES) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 2.6.2016 PASSED BY THE C.J. AND J.M.F.C., MADIKERI IN C.C. NO.494/2016 (P.C. NO.105/2016) TAKING COGNIZANCE OF THE CASE AND REGISTEREING A CRIMINAL CASE AGAINST THE PETITIONERS FOR THE OFFENCE P/U/S 417, 465 AND 468 R/W 34 OF IPC AND ALSO ISSUING SUMMONS TO THE PETITIONERS IN C.C. NO.494/2016 (P.C. NO.105/2016) AT ANNEXURE-A AND FURTHER PROCEEDINGS THERETO.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER R.DEVDAS J., (ORAL):
These petitioners have filed this petition under Section 482 of the Code of Criminal Procedure with a prayer to set aside the order dated 02.06.2016 passed by the Civil Judge and JMFC, Madikeri, in C.C.No.494/2016 arising out of PCR No.105/2016 in taking cognizance of the case and registering a criminal case against the petitioners for the offences punishable under Sections 417, 465 and 468 read with Section 34 of IPC.
2. At the outset, learned Counsel for the petitioners would submit that in view of the decision of the Hon’ble Apex Court in the case of Priyanka Srivastava and Another Vs. State of Uttar Pradesh and Others reported in (2015) 6 SCC 287, the order of cognizance taken by the Magistrate is required to be set aside. It is submitted that the offence alleged are all from the Indian Penal Code. In such a situation, it has been directed by the Hon’ble Apex Court that unless and until the procedures contemplated under Section 154 (1) and (3) Cr.P.C., are complied with, a private complaint under Section 200 of Cr.P.C. cannot be instituted and even if such private complaints are instituted, the Magistrates are required to find out if there is compliance of Sections 154(1) and (3) of Cr.P.C., whether the complainant made a complaint to the jurisdictional Police, whether on the inaction of the jurisdictional police, the complainant has brought the same to the notice of the Superintendent of Police/Commissioner of Police, as the case may be as provided under Section 154 (3), an affidavit stating that there is compliance along with the material to substantiate that the procedures have been followed is placed before the Magistrate.
3. Learned Counsel submits that in the present case, the respondent-complainant has directly approached the Magistrate by filing a petition under Section 200 of the Cr.P.C. without approaching the jurisdictional police.
4. Though learned Counsel for the respondent would seek to justify the initiation of proceedings under Section 200 before the Magistrate, the learned Counsel fairly submits that no such affidavit or material as contemplated in the decision of the Apex Court in Priyanka Srivastava’s case has been placed before the Magistrate.
5. In that view of the matter, the cognizance taken by the Magistrate is in contravention to the directions issued by the Hon’ble Apex Court in the case of Priyanka Srivastava. Therefore, the petition is allowed. The cognizance taken by the Civil Judge and JMFC, Madikeri in C.C.No.494/2016 arising out of PCR No.105/2016 for the offences punishable under Sections 417, 465 and 468 read with Section 34 of IPC is hereby quashed and set aside. All further proceedings in C.C.No.494/2016 arising out of PCR No.105/2016 are also quashed and set aside. However, liberty is reserved to the respondent to comply with the provisions of Section 154 of Cr.P.C. as highlighted in the case of Priyanka Srivastava and thereafter proceed in accordance with law.
It is ordered accordingly.
JT/-
Sd/- JUDGE