Quashed

M/S Indian Products Private Limited, v. State of Karnataka

Karnataka HC27 May 2019CRL.P/100026/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka held that the impugned order directing reinvestigation under Section 156(3) Cr.P.C. was illegal and unsustainable. Having exercised powers under Section 202 Cr.P.C., the Magistrate should have considered collected material before directing reinvestigation instead of entertaining a Section 156(3) application.

What did the court decide?

The impugned order dated 26.09.2016 directing reinvestigation under Section 156(3) Cr.P.C. is set aside as it is illegal, perverse, and not in accordance with law.

M/S Indian Products Private Limited, Vs State of… — Criminal Trial and Appeal | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF MAY 2019

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BEFORE

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THE HON’BLE MR.JUSTICE B.A.PATIL

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CRIMINAL PETITION NO.100026/2017

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BETWEEN:

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M/S. INDIAN PRODUCTS PRIVATE LIMITED, NO.04, QUEENS CORNER ‘A’, NO.3, QUEENS ROAD, BANGALORE-560001, REPTD. BY ITS MANAGING DIRECTOR, MR. MILAN SHAH S/O. ASHWIN SHAH, AGE 42 YEARS, OCC: BUSINESS.

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…PETITIONER

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(BY MR. TOMY SEBASTIAN, SENIOR COUNSEL FOR SRI. K.M.SHIRALLI)

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AND

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STATE OF KARNATAKA, BY BELLARY RURAL POLICE STATION, BELLARY, BELLARY DISTRICT.

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JANARDHANA VALMIKI,

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SON OF LATE YEERISWAMY, AGED ABOUT 37 YEARS, MANAGING DIRECTOR, M/S. SAI SREENIVASA COLD STORAGE, S.N.PET, 1^ST CROSS,

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BELLARI, BELLARY DISTRICT.

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…RESPONDENTS

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(SRI. RAJA RAGHAVENDRA NAIK, HCGP FOR R1; SRI. T. HANUMAREDDY, ADV. FOR R2)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE ORDER DATED 28.08.2016 PASSED IN PRIVATE COMPLAINT NO.72 OF 2015 BY THE HON’BLE III ADDL. CIVIL JUDGE (JR. DN.) AND JUDICIAL MAGISTRATE FIRST CLASS COURT, BALLARY DISTRICT, BALLARY, PASSED UNDER SECTION 156 (3) CR.P.C. DIRECTING REINVESTIGATION BY THE JURISDICTIONAL POLICE AFTER REGISTRATION OF THE CASE.

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition has been filed under Section 482 of Cr.P.C. by the petitioner – accused seeking to quash the order dated 28.08.2016 passed in Private Complaint No.72 of 2015 by the Hon’ble III Addl. Civil Judge (Jr.Dn.) and JMFC Court, Ballari.

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I have heard the learned Senior Counsel Mr. Tomy Sebastian and the learned HCGP for the

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respondent-State, as well as the learned counsel for the respondent-Complainant.

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The gist of the case of the complainant is that respondent No.2 has filed a Private Complaint and the sworn Statement of the complainant was recorded on 10.09.2015. On 11.09.2015 the case was adjourned to 21.09.2015 and after several adjournments on 31.10.2015, the learned Magistrate passed an order for investigation and report under Section 202 of Cr.P.C. On 23.07.2016, the PSI, Rural Police Station, Ballari submitted the report with papers. The matter was adjourned for hearing. When the matter was so posted for hearing, the complainant Advocate filed an application under Section 156(3) of Cr.P.C and after hearing both the sides the impugned order dated 26.09.2016 was came to be passed. Assailing the same, the accused-petitioner is before this Court.

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It is the submission of the learned counsel for

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the petitioner-accused that the learned Magistrate without following the procedure established by law has passed the impugned order erroneously. He further submitted that the reference so which has been made under Section 156(3) is not in accordance with law. It is further submitted that, at once the Magistrate has asked to produce documents under Section 202 of Cr.P.C and thereafter he has to consider the said aspect and thereafter appropriate order ought to have been passed. Instead of passing any such order he has entertained application under Section 156(3) and pass the impugned order. He also further submitted that he has proceeded as if a final report has been filed by the Investigating Officer under Section 173(1) of Cr.P.C. He further submitted that the learned Magistrate without application of his mind has passed the impugned order. On these grounds, he prayed to allow the petition and set aside the order dated 28.09.2016.

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Per contra, learned HCGP vehemently argued

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and submitted that the orders which discloses the fact that the matter has been referred to the Rural Police Station for investigation and report and as such the impugned order is in accordance with law. He further submitted that the learned Magistrate has not taken the cognizance yet and under that circumstances the application has been filed under Section 156(3) of Cr.P.C and on the basis of the said application, the learned Magistrate has passed the impugned order in accordance with law. On these grounds, he prayed to dismiss the petition.

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The learned counsel for the respondent No.2complainant by justifying the order passed by the learned Magistrate further submitted that the Court below is having every power to direct the investigating officer to investigate the matter under Section 156(3) and call for the report. In accordance with the said provisions the said

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order has been passed. There is no irregularity or illegality. He further submitted that the said impugned order if at all passed there is only a irregularity, not illegality. On these grounds he prayed to dismiss the petition.

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I have carefully and cautiously gone through the submissions made by the learned counsels of the parties and perused the records.

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Though the learned Senior Counsel has relied

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upon the decision in the case of Priyanka Srivastava and another Vs. State of Uttar Pradesh and others reported in (2015) 6 SCC 287 . With all due respects, the said facts and circumstances are not presently applicable to the present facts of the case on hand. As could be seen

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from the order sheet of the Trial Court a private complaint was filed and the case was posted for orders and on 31.10.2015 the learned Magistrate passed an order to the effect that the matter is referred to Ballary Rural Police

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Station for investigation and report under Section 202 of Cr.P.C. As could be seen from Section 202 of Cr.P.C, it reads as under:

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“202. Postponement of issue of process : (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, [and shall, in a case where the accused is reiding at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:

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Provided that no such direction for investigation shall be made-

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(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions; or

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(b) where the complaint has not been made by a Court, unless the complainant and the

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witnesses present (if any) have been examined on oath under section 200.

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(2) in an inquiry under sub-section (1), the Magistrate may, if he thinks fit take evidence of witness on oath:

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Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath.

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(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.”

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If the said provision is closely read the

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Magistrate is having a power under Section 202 to collect the documents before taking the cognizance and thereafter he has to hold an enquiry and pass an appropriate order. The order so which has been passed for investigation and report, that itself is considered to be illegal order. Though

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such order has been passed but the order itself clearly goes to show that it is passed under Section 202 of Cr.P.C. only for the purpose of collection of the material and place it before the Magistrate for the purpose of consideration. Instead of considering the said documents, the learned Magistrate has observed that the investigation officer has failed to collect a proper evidence and other records from the Bank Authorities and he has submitted a bald report and needs to be redirected according to law with a direction to register the case and enquiry and investigate under Section 156(3) of Cr.P.C that itself is considered to be illegal and not sustainable in the eye of law. When the Court below has exercised the power under Section 202 of Cr.P.C to collect the material. Then under such circumstance it ought have proceed by adopting the said procedure instead of allowing the application filed under Section 156(3) of Cr.P.C. When once a private complaint has been filed under Section 200 of Cr.P.C, the Magistrate is having two options, one he himself can take the

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cognizance and proceed with the matter or he can direct the Investigating Agency under Section 156(3) of Cr.P.C to proceed and investigate and file a final report under Section 173. Once if the documents have been produced by the Investigating Agency, then under such circumstances the Magistrate ought to have taken into consideration the said documents if at all he wants to take any cognizance of the case, he ought to have taken the cognizance, instead of doing so he has entertained and application which has been filed under Section 156(3) by complainant. AS could be seen from 202 of Cr.P.C. wide discretion is there to the Court instead of exercise it judicial power it has been swayed away the application filed by the complainant by observing that a bald report is filed by the Investigating Officer and that it requires reinvestigation. Reinvestigation is permissible only under Section 173(8) under the circumstances so which have been narrated there in not at this juncture.

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Under these facts and circumstances, I feel

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that the impugned order is not in accordance with law and the said order is prima facie appears that it is perverse and illegal. Under the said facts and circumstances, the said order is set aside. If at all the learned Magistrate wants to proceeds, he can proceed in accordance with law, as observed above.

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Sd/JUDGE

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*Svh/-

M/S Indian Products Private Limited, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

M/S Indian Products Private Limited, v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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