Allowed

Sri Pratik Girish Barbhaya v. State of Karnataka

Karnataka HC20 Apr 2021CRL.P/8168/2020

Case brief

AI extract

What is this about?

Criminal petitions seeking quashing of a private complaint and setting aside a magistrate's order under Section 156(3) Cr.P.C. The Court quashed the magistrate's order as mechanical and remanded the matter to apply a judicious mind, citing Makdus Saiyed.

What did the court decide?

Impugned order dated 28.01.2020 set aside and matter remitted to Magistrate to apply judicious mind.

Sri Pratik Girish Barbhaya Vs State of Karnataka — 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 20^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.7868/2020 C/W CRIMINAL PETITION NO.8168/2020

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IN CRIMINAL PETITION NO.7868/2020:

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BETWEEN:

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HIS HIGHNESS SRI JYOTHENDRA SINHJI, VIKRAM SINHJI, MAHARAJA OF GONDAL, S/O HIS HIGHNESS, LATE SRI VIKRAMSINHJI BHOJRAJSINHJI, AGED ABOUT 80 YEARS, RESIDING AT HUZUR BUNGALOW, GONDAL, RAJKOT, GUJARAT-360311. REPRESENTED BY HIS GPA HOLDER SRI GIRISH R. BARBHAYA.

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SRI GIRISH R. BARBHAYA, S/O SRI RAMANIKLAL BARBHAYA, AGED ABOUT 62 YEARS, RESIDING AT NO.1, JAYAMAHAL PALACE HOTEL, (CTS NO.14), JAYAMAHAL ROAD, BENGALURU-560 046. … PETITIONERS [BY SRI VIVEKANANDA, ADVOCATE]

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AND:

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STATE OF KARNATAKA, BY HALASUR GATE POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR,

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HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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MR. AMIT ROY, S/O LATE MR. ASHIT ROY, AGED ABOUT 50 YEARS, RESIDING AT CTS NO.114, JAYAMAHAL ROAD, BENGALURU-560 046. … RESPONDENTS

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[BY SRI SHOWRI H.R., HCGP FOR R-1; SMT. ASHA RANI V., ADVOCATE FOR R-2 (THROUGH V.C)]

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT BEARING PCR No.15320/2019 PENDING ON THE FILE OF I ACMM, BENGALURU FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 192, 193, 196 AND 120(B) R/W SECTION 34 OF IPC.

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IN CRIMINAL PETITION NO.8168/2020:

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BETWEEN:

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SRI PRATIK GIRISH BARBHAYA, SON OF SRI GIRISH RAMANIKLAL BARBHAYA, AGED ABOUT 30 YEARS, RESIDING AT KEVADAVADI, STREET NO.10, RAJKOT, GUJARAT-0162611. … PETITIONER [BY SRI VIVEKANANDA, ADVOCATE]

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AND:

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STATE OF KARNATAKA, BY HALASUR GATE POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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MR. AMIT ROY, S/O LATE MR. ASHIT ROY, AGED ABOUT 50 YEARS, RESIDING AT CTS NO.114, JAYAMAHAL ROAD, BENGALURU-560 046. … RESPONDENTS

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[BY SRI SHOWRI H.R., HCGP FOR R-1; SMT. ASHA RANI V., ADVOCATE FOR R-2 (THROUGH V.C)]

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE PRIVATE COMPLAINT BEARING PCR NO.15320/2019 PENDING ON THE FILE OF I ACMM AT BENGALURU, FOR THE OFFENCES PUNISHABLE UNDER SECIONS 192, 193, 196 AND 120(B) R/W SECTION 34 OF IPC.

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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 two petitions are filed by accused Nos.1 to 3 under

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Section 482 of Cr.P.C. praying this Court to quash PCR No.15320/2019 and also to set aside the order dated 28.01.2020 referring the matter for investigation invoking Section 156(3) of Cr.P.C. for the offences punishable under Sections 192, 193, 196, 120B read with Section 34 of IPC.

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The factual matrix of the case is that respondent No.2 had lodged a private complaint before the Court which is numbered as PCR No.15320/2019 making the allegation of fabrication of documents with conspiracy and making use of the

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fabricated documents before the Court. The learned Magistrate after receiving the complaint passed the order invoking Section 156(3) of Cr.P.C. The said order reads as follows:

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“Complainant present. Counsel for the complainant present.

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Perused the records. Register this case as PCR. This case is referred to SHO, Halsur Gate P.S. the offence punishable U/s. 192, 193, 196, 120(B), R/w 34 u/s 156(3) of Cr.P.C. for investigation and report. Await report by 02.05.2020.”

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The learned counsel for the petitioners would vehemently contend that the very order passed by the learned Magistrate is a mechanical order without application of judicious mind. The learned Magistrate has not looked into the contents of the complaint as to whether the complaint averments constitute an offence to refer the matter under Section 156(3) of Cr.P.C. The learned counsel would submit that there is a bar under Section 195 of Cr.P.C. for taking the cognizance.

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Per contra, the learned counsel for respondent No.2

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would contend that the learned Magistrate while passing the order has perused the records and thereafter invoked Section

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156(3) of Cr.P.C. and the same is in compliance of Section 156(3) of Cr.P.C. and referred the matter for investigation coming to a conclusion that it requires investigation.

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Having heard the learned counsel for the petitioners and the learned counsel for respondent No.2 and also on perusal of the records, except mentioning perused the records, the learned Magistrate has not mentioned anything whether he has gone into the contents of the complaint and the allegations made in the complaint and whether the allegations made in the complaint constitute an offence which have been invoked by the complainant. The learned Magistrate has passed the mechanical order without application of judicious mind. Hence, it requires interference of this Court in view of the judgment of the Apex Court in the case of MAKSUD SAIYED v. STATE OF GUJARAT AND OTHERS reported in (2008) 5 SCC 668, wherein the Apex Court has observed that the learned Magistrate has to apply his judicious mind before referring the matter under Section 156(3) of Cr.P.C.

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The other contention of the learned counsel for the petitioners that there is a bar under Section 195 of Cr.P.C.

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cannot be accepted at this juncture. The matter is referred under Section 156(3) of Cr.P.C. and the same is a precognizance order and hence the contention of the learned counsel for the petitioners cannot be accepted at this juncture.

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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 petitions are allowed.

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(ii) The impugned order dated 28.01.2020 is hereby set aside.

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(iii) The matter is remitted back to the learned Magistrate to apply his judicious mind and to pass appropriate order in view of the judgment of the Apex Court referred supra and also the observations made by this Court.

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Sd/JUDGE

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Sri Pratik Girish Barbhaya v. State of Karnataka

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Sri Pratik Girish Barbhaya v. State of Karnataka

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