IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.618 OF 2018 BETWEEN:
1. THANVEER AHMED PAKKAR S/O ABDUL SHUKOOR 50 YEARS RESIDENT AT A1-MAMOOR 8 2ND FLOOR 11/23 VEPERY HIGH ROAD PERIAMET, CHENNAI-600 003 2. MOHAMED IRFAN T S/O T. MOHAMMED MOIN 39 YEARS RESIDENT OF OLD NO.13/2 NEW NO.18, ATKINSON ROAD PERIAMET, CHENNAI-600 003 3. K. MOHAMED FAISAL S/O K. AHMEDULLAH 39 YEARS RESIDENT AT B2, FOUNDATION SQUARE OLD NO.21, NEW NO.45 MEDAVAKKAM TANK ROAD CHENNAI-600 012 4. A. MUHAMMADH THAHIR S/O S.S.I. SIKKANTHAR ALI 19 YEARS RESIDENT AT T-101, PLOT NO.4079 3RD AVENUE, ANNA NAGAR CHENNAI-600 040 5. C. KULSUM ARSHIYA D/O CHOLAVARAM ABDUL MALICK 40 YEARS RESIDING AT 23/11, 4TH FLOOR A1-MAMOOR APARTMENTS VEPERY HIGH ROAD PERIAMENT, CHENNAI-600 003 6. A.K. ANISH KHAN (NOT ANISHKAN AS IN THE COMPLAINT) S/O ARIFULLA KHAN 44 YEARS RESIDING AT 49, ETHIRAJ SALAI D-31, COMMANDERS COURT EGMORE, CHENNAI-600 008 7. K. MOHAMMED JAMAL S/O NASRULLAH 27 YEARS RESIDING AT 146, IQBAL ROAD, MUSLIMPUR, VANIYAMBADI-635 751 8. SIKKANTHAR ALI S/O S. SULTAN SYED IBRAHIM 39 YEARS RESIDENT AT T-101, PLOT NO.4079 3RD AVENUE ANNA NAGAR CHENNAI-600 040 … PETITIONERS (BY SHRI. S.G. BHAGAVAN, ADVOCATE) AND:
LASSI HOUSE A PARTNERSHIP FIRM HAVING ITS OFFICE AT # 7 WILSON GARDEN SOCIETY RBI LAYOUT MAIN ROAD KOTHANUR VILLAGE J.P NAGAR 7TH PHASE BENGALURU-560 078 REPRESENTED BY ITS PARTNERS NADEEM AHMED KHADER BASHA AND ZUHEEB AHMED … RESPONDENT (BY SHRI. ANOOP HARANAHALLI FOR SHRI. S.S. SRINIVASA RAO, ADVOCATES) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.28387/2017 IN THE COURT OF THE XLIV A.C.M.M., BANGALORE THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Heard Shri.S.G.Bhagavan, learned Advocate for petitioners and Shri.Anoop Haranahalli, learned Advocate for respondent.
2. On 16.10.2017, complainant – respondent filed a private complaint before the XLIV Additional Chief Metropolitan Magistrate, Bengaluru. On the same day, learned Magistrate endorsed on the complaint to register the private complaint and directed for recording of sworn statement. After recording sworn statement, by order dated 16th November 2017, he took cognizance of offences and directed registration of criminal case against petitioners-accused.
3. Shri.S.G.Bhagavan, submitted that the procedure followed by the learned Magistrate is contrary to law inasmuch as the learned Magistrate ought to have taken cognizance of offence before proceeding further.
4. Shri. Anoop Haranahalli, learned Advocate for respondent in his usual fairness submits that there is infraction of procedure and prays that both orders be set-aside and matter be remitted to the learned Magistrate for reconsideration. His submission is placed on record.
5. Shri.S.G.Bhagavan is right in his submission that before taking cognizance of offence, the learned Magistrate has directed for recording of sworn statement. After recording the sworn statement, he has taken cognizance of offence. This is impermissible.
Resultantly, this petition merits consideration and it is accordingly allowed.
The order dated 16th October 2017 directing registration of PCR and recording of sworn statement and order dated 16th November 2017 taking cognizance of the offence are set-aside. The matter is remitted to the learned Magistrate for reconsideration in accordance with law from the stage of presentation of the complaint.
No costs.
SPS Sd/- JUDGE