IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.5777/2018 BETWEEN C.NANDEESH, S/O LATE CHIKKANNA, AGED ABOUT 62 YEARS, RESIDENT OF NO.165, ‘NANDHIDHAMA’, 208, SFS YELAHANKA NEWTOWN, BANGALORE – 560 064.
... PETITIONER (BY SRI. VIJAYA KUMARA BHAT A., ADVOCATE) AND 1. THE STATE OF KARNATAKA, REPRESENTED BY STATE PUBLIC PROSECUTOR, KODIGEHALLI POLICE STATION, KODIGEHALLI, BANGALORE – 560 092.
2. CHANABASANAGOUDA ALIAS NINGANAGOUDA HOSAMANI ALIAS POLIS PATIL, S/O ADIVEPPAGOUDA, RESIDING AT NO.15, ‘ARITE’ 1ST CROSS, 10TH ‘A’ MAIN, II STAGE, INDIRANAGAR, BANGALORE – 560 038.
... RESPONDENTS (BY SRI. S.CHANDRASHEKARAIAH, HCGP FOR R1; R2- SERVED AND UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE FIR NO.56/2016 DATED 25.02.2016 FILED BY THE 1ST RESPONDENT IN THE COURT OF THE C.M.M., BANGALORE FOR OFFENCES P/U/Ss 465, 468, 120-B r/w 34 IPC VIDE ANNEXURE – ‘A’ ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel appearing for petitioner and learned HCGP appearing for the State. Respondent No.2 is served and unrepresented.
2. This court by order dated 09.11.2018 has granted interim stay of further proceedings. In light of same, examination of prayer for continuation of interim order would result in examination of case on merits, it is taken up for final disposal.
3. Second respondent herein has filed a complaint under Section 200 Cr.P.C., before the jurisdictional Magistrate alleging that he is the owner of property bearing Sy.No.11 of Kodigehalli, Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring 1 Acre 28 guntas and had formed sites in said property in respect of which the third accused started claiming of ownership i.e., over Site Nos.9, 9/1 and 10 contending that one Sangamesh B. Chandapur, (husband of the first accused - since deceased) as Power of Attorney holder of the complainant had executed a registered Sale Deed on 03.06.1997 in respect of said sites. Alleging that he had never executed any such power of attorney in favour of one Sangamesh B. Chandapur, a private complaint came to be filed on 16.06.2015. Learned Magistrate ordered the complaint to be put up on 22.06.2015 and on the said date, referred the complaint under Section 156 (3) Cr.P.C., to jurisdictional police for investigation. Hence, petitioner is before this court for quashing of the proceedings.
4. I have heard the arguments of Sri. Vijaya Kumar Bhat, learned counsel appearing for petitioner and Sri. S. Chandrashekaraiah, learned HCGP appearing for the State.
5. Though several grounds are urged, one of the prime contention urged in the petition is that complaint does not meet the requirement prescribed by the Apex Court in the case of Mrs. Priyanka Srivastava and Another –vs- State of U.P. and Others reported in AIR 2015 SC 1758. Hence, he prays for allowing the petition.
6. Per contra, learned HCGP appearing for the State submits that matter requires to be investigated and as such he prays for dismissal of the petition.
7. Having heard the learned counsel appearing for parties, and a bare perusal of records would disclose that by order dated 22.06.2015, learned Magistrate has passed the following order:
“Complainant is present with counsel to register the PCR Perused the records.
Kodigehalli Police is directed to investigate the complaint u/s 156 (3) Cr.P.C., and report.
8. At the time of calling for report, a detailed order is not required. However, said order should disclose that there is judicious application of mind at the time of issuance of process to the accused, for taking cognizance against the accused, the learned Magistrate would be required to examine the complaint materials as well as the reports so received. Be that as it may, the Hon’ble Apex Court in Priyanka Srivastava’s case referred to supra, has held that complainant has to substantiate allegations made in the complaint by filing an affidavit when he invokes the jurisdiction of the learned Magistrate, since he bypasses the jurisdictional police. It has been held by the Apex Court to the following effect:
In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C., 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 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. We have already indicated that there has to be prior applications under Section 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 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.
9. In the instant case, complainant though being a party to earlier proceedings before this court had filed writ petitions before this court, has suppressed this fact, which probably swayed the mind of the learned Magistrate to call for the report from the jurisdictional police. In W.P.No.23389/2011, Coordinate Bench by order dated 15.06.2012, has held to the following effect:
“ 9. It is clear from the material on record that Ninganagowda Hosamani had filed a writ petition challenging the acquisition proceedings in W.P.No.292/87. The said writ petition was dismissed by the Court on 11.10.1993. Yet another writ petition was filed by Ninganagowda Hosamani in W.P.No.12758/08 seeking a declaration that acquisition proceedings has lapsed under Section 11A of the Land Acquisition Act. The said case was also dismissed on 14.06.2011. If the contention of the petitioner that he was the owner of the land in question, he ought to have disclosed these facts in the writ petition. The Apex Court in S.P.Chengalvaraya Naidu (supra) has emphasized that the petitioner has to come to court with clean hands.
11. It is clear from the materials on record that the petitioner has not come to the Court with clean hands. He ought to have disclosed filing of the writ petition earlier challenging the acquisition proceedings and also another writ petition wherein this court has negative his contention that land acquisition proceedings has lapsed. Thus, the petitioner has suppressed the material facts.”
10. Yet, the second respondent-complainant suppressing these facts has invoked the jurisdiction of the learned Magistrate by filing a complaint under Section 200 Cr.P.C., which falls short of the dicta laid down by the Apex Court in Priyanka Srivastava’s case (supra), namely non-filing of affidavit in support of allegations made in the complaint. Therefore, the proceedings against the petitioner cannot be proceeded with.
11. In the result, criminal petition is allowed.
Proceedings pending in Crime No.56/2016 registered by Kodigehalli P.S., against the petitioner for offences punishable under Sections 465, 468, 120-B r/w 34 IPC, on the file of Chief Metropolitan Magistrate Court, Bangalore, insofar as petitioner is concerned stands quashed. However, second respondent would be at liberty to proceed against petitioner in accordance with law, keeping in mind the dicta laid down by the Apex Court in Priyanka Srivastava’s case (supra).
SD/-
JUDGE Np/-