IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NOS.25528-529 OF 2016(GM-RES) BETWEEN:
1. SRI D VEERENDRA HEGGADE AGED 68 YEARS, S/O LATE RATHNAVARMA HEGGADE, DHARMASTHALA VILLAGE AND POST, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT-574216 2. SRI SHANTHARAM R PAI AGED 51 YEARS, DIRECTOR-FINANCE, SKDRDP, DHARMASTHALA, DAKSHINA KANNADA DISTRICT-574216 ... PETITIONERS (BY SRI: P P HEGDE, ADVOCATE) AND 1. SRI RANJAN RAO YERDOOR AGED 65 YEARS, S/O LATE SHIVASHANKAR RAO YERDOOR, ’SASYODYANA’, SHANTHINAGAR, P.O GURUVAYANAKERE - 574 217, BELTHANGADY TALUK, DAKSHINA KANNADA DISTRICT-574217 2. THE STATE OF KARNATAKA BY SHO OF BELTHANGADY POLICE STATION, DAKSHINA KANNADA DISTRICT-01 ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R2; SRI: SANKET M.YENAGI, ADVOCATE FOR R1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE COMPLAINT IN P.C.14/2016 AT ANNEX-B AND ALL FURTHER PROCEEDINGS INCLUDING THE ORDER DATED 26.04.2016 AT ANNEX-A PASSED BY THE COURT OF PRL. CIVIL JUDGE & JMFC, BELTHANGADY REFERRING THE SAID COMPLAINT TO THE POLICE FOR INVESTIGATION UNDER SEC, 156(3) OF CR. P.C.;
THESE WRIT PETITIONS ARE COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Heard learned counsel for petitioners, learned counsel for respondent No.1 and learned Additional SPP for respondent No.2.
2. Perused the records.
3. Even though the petitioners have urged large number of contentions on merits, on going through the records it is noticed that the order passed by the learned Magistrate referring the complaint for investigation under Section 156(3) of Cr.P.C. is patently defective and is contrary to the law laid down by the Hon’ble Supreme Court in Ramdev Food Products Private Limited -vs- State of Gujarat reported in (2015) 6 Supreme Court Cases 439 and the decision in Maksud Saiyed –vs- State of Gujarat and others reported in (2008) 5 SCC 668.
4. It is now well settled that the direction for investigation under Section 156(3) of Cr.P.C. could be issued only after application of mind by Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice, it is considered appropriate to straightaway direct investigation, such a direction under Section 156(3) of Cr.P.C. is issued.
5. In the instant case, the impugned order passed by the learned Magistrate discloses that the learned Magistrate has not applied his mind to the facts averred in the complaint. It is not forthcoming in the impugned order, whether the offences alleged in the complaint are cognizable or non-cognizable. Without even referring to the alleged offence, the learned Magistrate has straightaway directed the complaint for investigation under Section 156(3) which is contrary to the provisions of the Code as well as the law enunciated in the above decision.
6. In the light of the above fact situation, without expressing any opinion on merits of the case, petitions are allowed. The impugned order dated 26.4.2016 passed by the Principal Civil Judge & JMFC, Belthangandy, in P.C.No.14/2016 is set aside. Consequently, the matter is remitted to the learned Magistrate to consider the application afresh in the light of the guidelines laid down in the above decisions.
Sd/- JUDGE rs