Allowed

Vinod v. State by K.G. Halli Police Station

Karnataka HC15 Apr 2021CRL.P/1174/2021

Case brief

AI extract

What is this about?

The High Court allowed a criminal petition to quash a Magistrate's order forwarding a private complaint for investigation under CrPC Section 156(3). Holding that the Magistrate applied his mind mechanically without analyzing if the complaint disclosed cognizable offences, the Court remitted the matter to be decided afresh citing Maksud Saiyed.

What did the court decide?

The impugned order dated 07.03.2020 referring the matter for investigation is quashed and remitted to the Magistrate to pass a proper order.

Vinod Vs State by K.G. Halli Police Station — Quashing and FIR | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF APRIL, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION NO.1174/2021

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BETWEEN:

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VINOD, S/O LATE KRISHNAIAH, AGED ABOUT 53 YEARS, PROPRIETOR, SREE SAIRAM OIL TRADERS, SY.NO.448-20, C/O J.S. OIL MILL COMPOUND, CHELURU ROAD, CHINTAMANI 563125. AND ALSO AT: SREE SAIRAM OIL MILL, D.NO.16/518-12, D.C.ROAD, KADAPA-516 001, ANDHRA PRADESH. … PETITIONER

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[(BY SMT. SHWETHA ANAND, ADVOCATE (THROUGH V.C)]

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AND:

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STATE BY K.G. HALLI POLICE STATION, BENGALURU-560045.

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VIKRAM C.T., S/O THIMMAPPA, AGED ABOUT 30 YEARS, PROPRIETOR OF SRI SAI TRADERS, NO.2, NARASIMHIAH BLOCK, NAGAVARA MAIN ROAD, VENKATESHPURAM, ARABIC COLLEGE POST, BENGALURU 560045. … RESPONDENTS [BY SRI SHOWRI, HCGP FOR R-1; DR. S. ARMUGHAM, ADVOCATE FOR R-2]

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 07.03.2020 PASSED BY THE XI ADDL.CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN PCR No.51773/2017 THEREBY TAKING COGNIZANCE OF THE OFFENCE AND REFERRING THE MATTER FOR POLICE INVESTIGATION PRODUCED VIDE ANNEXURE-A.

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

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O R D E R

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This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the order dated 07.03.2020 passed by the XI ACMM, Bengaluru in P.C.R.No.51773/2017 for the offences punishable under Sections 420, 422 and 506 of IPC.

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The factual matrix of the case is that respondent No.2 had filed a private complaint before the learned Magistrate invoking Section 200 of Cr.P.C. and prayed the Court to refer the matter under Section 156(3) of Cr.P.C. for the offences punishable under Sections 420, 422 and 506 of IPC. The learned Magistrate after receiving the complaint passed the following order:

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“Complainant is present. Counsel for complainant is present and advanced argument on complaint. Perused complaint and documents produced in support of complaint. At this stage complaint needs

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to be investigated. Hence complaint is referred to PI of K.G. Halli Police Station for investigation and report under Section 156(3) of Cr.P.C.”

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Hence, the present petition is filed praying this Court to set aside the said order.

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The learned counsel for the petitioner would vehemently contend that the learned Magistrate has not applied his judicious mind while referring the matter under Section 156(3) of Cr.P.C., except making the general observation that perused the complaint and documents produced in support of complaint. Whether the complaint averments discloses the cognizable offences, which have been invoked, has not been stated in the order. The learned counsel would submit that the complaint is filed against this petitioner with regard to non-payment of the amount towards the supply of edible oil and it is purely a civil dispute between the parties. The complaint does not disclose any ingredients of the offence of invoking of Section 420 of IPC and hence there cannot be any proceedings against the petitioner.

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Per contra, the learned counsel for respondent No.2 would contend that the learned Magistrate while passing the order and referring the matter under Section 156(3) of Cr.P.C. has taken note of the complaint averments and documents and passed the pre-cognizance order invoking Section 156(3) of Cr.P.C. and hence this Court cannot find fault with the order of the Trial Court. The learned counsel would contend that referring the matter under Section 156(3) of Cr.P.C. is not taking of any cognizance and it is only referring the matter for investigation and the Investigating Officer has to investigate the matter and file the final report. The Court has got the power under Section 173(8) of Cr.P.C. to order for further investigation, if the investigation has not been done properly by the Investigating Officer. Hence, prays this Court to dismiss the petition.

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5. Having heard the learned counsel for the petitioner

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and the learned counsel for respondent No.2, this Court has to peruse the order passed by the learned Magistrate, which is extracted hereinabove. It discloses that the learned Magistrate referred the matter under Section 156(3) of

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Cr.P.C. and while referring the matter under Section 156(3) of Cr.P.C., a reference was made that he has perused the complaint and the documents produced in support of the complaint and it requires investigation. When the complaint is filed under Section 200 of Cr.P.C., the learned Magistrate has to either proceed with the matter by taking the cognizance or has to refer the matter under Section 156(3) of Cr.P.C. On perusal of the prayer, it is clear that reference is sought by the complainant. The question before the Court is whether the learned Magistrate has applied his judicious mind or mechanically passed the order. On perusal of the order, the learned Magistrate has made an observation that perused the complaint and documents and forms an opinion that the complaint needs to be investigated. The learned Magistrate has not applied his judicious mind whether the contents of the complaint constitutes cognizable offence when the cognizable offence has been invoked in the complaint and no such observations is made in the order and instead of, mechanically passed the order that the matter requires to be investigated. The Apex Court in the judgment in the case of MAKSUD

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SAIYED v. STATE OF GUJARAT AND OTHERS reported in

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(2008) 5 SCC 668 has held that the learned Magistrate has to apply his mind while referring the matter under Section 156(3) of Cr.P.C. and the same has not been done in the present case.

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The other contention of the learned counsel for the petitioner that the offences invoked against the petitioner herein does not attract the ingredients of the offence cannot be looked into at this stage. The Court has to look into whether the learned Magistrate has applied his judicious mind and I have already pointed out that mechanical order has been passed by the learned Magistrate and hence it requires interference of this Court and the matter has to be remitted back to the Trial Court to consider the matter afresh and pass appropriate order.

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The petition is allowed.

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(ii) The impugned order dated 07.03.2020 is hereby quashed. The matter is remitted back to the learned Magistrate to consider the matter afresh and pass the order in view of the judgment of the Apex Court referred supra and also the observations made by this Court.

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In view of allowing of the main petition, I.A.No.1/2021

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for stay does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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Vinod v. State by K.G. Halli Police Station

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Vinod v. State by K.G. Halli Police Station

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