Allowed

Dr. Rashmi R v. Dr. Chirag Babu

Karnataka HC20 Sept 2016CRL.P/1403/2015

Case brief

AI extract

What is this about?

Single bench criminal order transferring connected petitions one quashing illegal second FIR registered after requisition and other directing magistrate to assign reasons for investigation referral under Cr.P.C.

What did the court decide?

Proceedings quashed in first petition; in second, proceedings returned to stage of complaint with direction to assign reasons for investigation referral if required.

Dr. Rashmi R Vs Dr. Chirag Babu — Criminal Trial and Appeal | Karnataka HC (2016)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF SEPTEMBER 2016

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL PETITION No.1403 OF 2015

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CONNECTED WITH

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CRIMINAL PETITION No.1971 OF 2016

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IN CRL.P.No.1403/2015

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BETWEEN:

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Dr. Rashmi R., Aged about 34 years, Wife of Dr. Chirag Babu, c/o. Rakesh R.Rao, Ramesh Nilaya, Murthy Residency, F2 Flat, II Block, Vyalikaval, Nagawara, Opposite Manyata Tech Park, Bangalore – 560 045.

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…PETITIONER

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(By Shri Padmanabha V. Mahale, Senior Advocate for Shri Naveed Ahmed, Advocate)

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AND:

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Dr. Chirag Babu, Aged about 36 years, Son of Dr. Suresh Babu,

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Dr. Chethana, Aged about 30 years, Wife of Dr. Suresh Babu,

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Dr. Suresh Babu, Aged about 66 years,

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Smt. Veena, Aged about 59 years, Wife of Suresh Babu,

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Respondents 1 to 4 are Residing at No.76,1 Chaitanya, 4^th Main, 5^th Cross, PJ Extension, Opposite Jain Vidyalaya, Davanagere 577 002.

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…RESPONDENTS

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(By Shri P.P.Hegde, Advocte)

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This Criminal Petition filed under Section 407 code of Criminal Procedure, 1973, praying to transfer the case of the petitioner from Judicial Magistrate First Class-III Court Davanagere in Crime No.106/2013 to VIII Additional Chief Metropolitan Magistrate, Bangalore in PCR No.15355/2013.

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IN CRL.P.No.1971/2016

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BETWEEN:

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Dr. Chiragbabu P.S., Aged 37 years, Son of Dr. P.S.Suresh Babu, Residing at No.761, Chaitanya, 4^th Main, 5^th Cross Road, P.J.Extension, Davanagere.

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Dr. Chethan Babu K., Udupa, Aged 31 years, Wife of Dr. Karthik S.Udupa, Residing at No.304, Manipal Hills, Ananth Nagar, Manipal – 576 104.

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Dr. Suresh Babu, Aged 67 years, Residing at No.761, Chaitanya, 4^th Main, 5^th Cross Road, Opposite JainVidyaalaya, Davanagere.

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Smt. Veena, Aged 60 years, Wife of Dr. Suresh Babu, Residing at No.761,

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Chaitanya, 4^th Main, 5^th Cross Road, Opposite JainVidyaalaya, Davanagere.

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…PETITIONERS

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(By Shri P.P.Hegde, Advocate) AND:

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Dr. Rashmi R., Aged about 34 years, Daughter of Late Ramesh Rao, Residing at No.23, Nature View Residency, Flat No.A2, 1^st Cross, Goplappa Road, Manoramana Palya, Bangalore.

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The State – Through the Sub Inspector of Police, Davanagere Police Station, Represented by the State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001.

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…RESPONDENTS

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(By Shri Padmanabha V.Mahale, Senior Advocate for Shri Naveed Ahmed, Advocate)

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This Criminal Petition filed under Section 482 of the Code of Criminal Procedure, 1973 praying to quash the order dated …. passed the Chief Metropolitan Magistrate, Bangalore

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referring the case to the police for investigation under Section 156(3) of Cr.PC. and etc;

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These Criminal Petitions coming on for Admission this day, the court made the following:

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O R D E R

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These petitions are heard and disposed of by this common order.

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The first of these petitions Crl.P.1403/2015 is filed by

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the petitioner who is the wife of the petitioner in the connected petition. They have fallen out and there are proceedings initiated for divorce, for Protection of Women from Domestic Violence Act, 2005 and for offences punishable under Section 498-A of the Indian Penal Code, 1860 and related provisions.

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It transpires that insofar as the criminal proceedings initiated by the petitioner herein, a private complaint had been lodged before the Chief Metropolitan Magistrate who had, by a cryptic order, directed investigation by the R.T. Nagar Police, by an order dated 31.10.2013. Thereafter, inexplicably, the

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Hebbal police station had made a requisition to the court below seeking that the entire file be transferred to the Davanagere Police Station for investigation. The first information report (FIR) was registered by the police on such reference by the Hebbal police and a requisition was made seeking transfer of the entire papers for further investigation by the Davanagere police. The court below had intimated that such a requisition had been granted and that the entire papers be transferred to the Davanagere police station. It then transpires that the Davanagere police in turn has lodged an FIR with the Jurisdictional court at Davanagere and a fresh FIR is registered as Crime No.106/2013 and further proceedings have taken place. It is in this background that the first of these petitions is filed to contend that there could be no second FIR on the same set of circumstances.

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The requisition made by the police and the direction by

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the court below has been misconstrued as being an order of transfer to the court at Davanagere. From a reading of the

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intimation by the court below dated 7.9.2013, his claim that the transfer is for purposes of investigation to the Davanagere Police Station and not to any court. The question of a second FIR being registered at Davanagere is therefore clearly illegal and was contrary to the directions of the Lower Court and was exfacie illegal.

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The learned counsel for the respondent would fairly concede that on the face of it, it would appear to be so and that all further proceedings before the Davanagere court as well as the Davanagere Police Station in having registered a second FIR could be quashed. Accordingly, the first of these petitions is allowed and the proceedings are quashed.

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The connected petition Crl.P.1971/2016 is filed by the husband to contend that in the first instance, the court below has referred the matter to the police for investigation under Section 156(3) Cr.P.C. In the complaint, there is no indication of the complainant having approached the local police with the complaint in the first instance, nor of having taken recourse to

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Section 154(3) Cr.P.C. If the police had failed to act under Section 154(1) and consequently, the complaint having been filed when there was no attempt on the part of the complainant to lodge such a complaint before the police in the first instance, the court below while referring the matter for investigation, ought to have indicated application of mind in coming to a conclusion that the matter required investigation by the police. This according to the learned counsel is the legal position as laid down by the Supreme Court that even to direct investigation by the police, there must be an indication of application of mind to arrive at the decision that an enquiry is necessary. This is of a degree falling just short of taking cognizance.

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Consequently, from a reading of the order of the court below, it does appear that no reason is provided. This minimum requirement of the court having applied its mind is essential as laid down in the said decision. But however, any such lapse could not be fatal to the complaint and the complaint

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itself cannot be trashed merely because there is no indication of such application of mind by the Magistrate. It may in fact have been applied.

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Accordingly, the proceedings are relegated to the stage of the complaint having been received by the court below and if the court is of the opinion that the matter requires to be investigated by the police, proper reasons be assigned. It need not be a detailed reasoned order. At least some indication that the court below has applied its mind to decide that the matter requires investigation by the police would suffice. This is not akin to taking cognizance of the matter. The court while referring the matter to the police for investigation, is not deemed to have taken cognizance, is also the settled legal position.

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The court below shall proceed from the stage of having received the complaint and shall take a decision as to whether the matter requires investigation. If it requires further investigation by the Davanagere police, it shall in due course,

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pass appropriate orders for such further investigation, if warranted. With that observation, the second of these petitions is also allowed to the limited extent as stated above. The petitions are accordingly disposed of.

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Sd/JUDGE

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Dr. Rashmi R v. Dr. Chirag Babu

Case brief

What is this about?

What did the court decide?

Dr. Rashmi R v. Dr. Chirag Babu

Case brief

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What did the court decide?

What the court decided

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