Allowed

Smt Rekha Prasad v. State Represented by

Karnataka HC5 Sept 2022WP/26081/2018

Case brief

AI extract

What is this about?

In two coupled writ petitions, the High Court of Karnataka, on the petition of various accused persons in a criminal complaint case, examined the compliance of the Apex Court's directives in Priyanka Srivastava's case regarding the filing of private complaints. The Court held that the complaint lacked necessary statutory averments and verified affidavit supporting a Section 156(3) CrPC direction.

What did the court decide?

Writ petitions allowed; private complaint PCR No.87/2018 quashed; FIR No.67/2018 quashed; liberty to complainant to file fresh complaint per Priyanka Srivastava's guidelines.

Smt Rekha Prasad Vs State Represented by — Quashing and FIR | Karnataka HC (2022)

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WP No. 27755 of 2018 C/W WP No.26081 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 27755 OF 2018 (GM-RES) C/W WRIT PETITION NO. 26081 OF 2018 (GM-RES)

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IN W.P.NO.27755 OF 2018 BETWEEN:

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SRI. Y. RADHAKRISHNA AGED ABOUT 52 YEARS S/O LATE Y.V. SUBRAYA BHAT R/AT 987, 23^RD MAIN 4^TH ‘T’ BLOCK, JAYANAGAR BENGALURU-560041

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…PETITIONER

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(BY SRI. Y. HARIPRASAD, ADVOCATE)

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AND:

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STATE REPRESENTED BY CIRCLE INSPECTOR OF POLICE KOTE POLICE STATION CHITRADURGA-577501 KARNATAKA STATE

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Digitally signed by POORNIMA SHIVANNA Location: HIGH COURT OF KARNATAKA

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SMT. K.R. GEETHA W/O SRI. NAGARAJ AGED ABOUT 48 YEARS PROPRIETRIX OF M/S ABHITH AGRO ASSOCIATES DRIP IRRIGATION OFFICE AT: OPPOSITE GAYATHRI BHAVAN HOLALKERE ROAD, CHITRADURGA R/O B.V.K.S.LAYOUT

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HOLALKERE ROAD CHITRADURGA-577501

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…RESPONDENTS

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(BY SRI. MAHESH SHETTY, HCGP FOR R1; SRI. R.B. DESHPANDE, ADVOCATE FOR R2)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF THE CRPC, PRAYING TO QUASH THE COMPLAINT IN PCR NO.87/2018 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SENIOR DIVISION) & JMFC, CHITRADURGA, AT ANNEXURE-A AND CONSEQUENTLY, QUASH THE F.I.R NO.67/2018 ON THE FILE OF THE CHITRADURGA TOWN CIRCLE, CHITRADURGA KOTE POLICE STATION AT ANNEXURE-B AND ALLOW THE PETITION WITH COST.

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IN W.P.NO.26081 OF 2018 BETWEEN:

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SMT. REKHA PRASAD AGED 58 YEARS W/O SRI. RANGANATH PRASAD DIRECTOR OF M/S MEGHA AGROTECH PVT LTD #196, ARAKERE GATE BANNERUGHATTA ROAD BENGALURU-560076

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SRI. RANGANATH PRASAD AGED 64 YEARS MANAGING DIRECTOR M/S MEGHA AGROTECH PVT LTD #196, ARAKERE GATE BANNERUGHATTA ROAD BENGALURU-560076

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SRI. NARAYANA GOWDA AGED 50 YEARS MARKETING EXECUTIVE M/S MEGHA AGROTECH PVT LTD #196, ARAKERE GATE BANNERUGHATTA ROAD BENGALURU-560076

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…PETITIONERS

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(BY SRI. Y.HARIPRASAD, ADVOCATE-PH)

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AND:

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STATE REPRESENTED BY CIRCLE INSPECTOR OF POLICE KOTE POLICE STATION CHITRADURGA, KARNATAKA STATE

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SMT. K.R. GEETHA W/O SRI. NAGARAJ AGED 48 YEARS PROPRIETRIX OF M/S ABHITH AGRO ASSOCIATES DRIP IRRIGATION OFFICE AT: OPPOSITE GAYATHRI BHAVAN HOLALKERE ROAD, CHITRADURGA R/O B.V.K.S. LAYOUT, HOLALKERE ROAD CHITRADURGA-577501

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…RESPONDENTS

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(BY SRI. MAHESH SHETTY, HCGP FOR R1; SRI. R.B. DESHPANDE, ADVOCATE FOR R2-PH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE COMPLAINT IN PCR NO.87/2018 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SENIOR DIVISION) & JMFC, CHITRADURGA, AT ANNEXURE-A AND CONSEQUENTLY, QUASH THE F.I.R.NO.67/2018 ON THE FILE OF THE CHITRADURGA TOWN CIRCLE, CHITRADURGA KOTE POLICE STATION AT ANNEXURE-B AND ALLOW THE PETITION WITH COST.

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*********

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THESE WRIT PETITIONS COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner in W.P.No.27755/2018 is before this

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Court seeking for the following reliefs:

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“Wherefore, the petitioner prays that this Hon’ble Court may be pleased to pass necessary orders and quash the complaint in PCR No.87/2018 on the file of

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the II Addl. Civil Judge (Senior Division) & JMFC, Chitradurga, at Annexure-A and consequently, quash the F.I.R No.67/2018 on the file of the Chitradurga Town Circle, Chitradurga Kote Police Station at Annexure-B and allow the petition with cost and grant any relief/reliefs as this Hon’ble Court deems fit in the circumstances of the case”.

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2. The petitioners in W.P.No.26081/2018 are before this Court seeking for the following reliefs:

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“Wherefore, the petitioner prays that this Hon’ble Court may be pleased to pass necessary orders and quash the complaint in PCR No.87/2018 on the file of the II Addl. Civil Judge (Senior Division) & JMFC, Chitradurga, at Annexure-A and consequently, quash the F.I.R.No.67/2018 on the file of the Chitradurga Town Circle, Chitradurga Kote Police Station at Annexure-B and allow the petition with cost and grant any relief/reliefs as this Hon’ble Court deems fit in the circumstances of the case”.

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In W.P.No.26081/2018, petitioner No.1 is the

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Director, petitioner No.2 is the Managing Director and petitioner No.3 is Marketing Executive of M/s.Megha Agrotech Private Limited. In W.P.No.27755/2018, the petitioner has joined the M/s.Megha Agrotech Private Limited as Accounts Manager.

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A complaint in PCR No.87/2018 came to be filed alleging that the aforesaid accused had committed

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offences under Sections 120B, 406, 418, 420, 465, 467, 471 read with Section 34 IPC, which was taken cognizance of and referred to investigation under Section 156(3) resulting in Crime No.67/2018 being registered by the Chitradurga Kote Police Station on 30.03.2018. It is aggrieved by the same, the petitioners are before this Court.

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Sri.Y.Hariprasad, learned counsel for the petitioners would submit that the private complaint does not satisfy the requirement as laid down by the Hon’ble Apex Court in PRIYANKA SRIVASTAVA & ANR VS STATE OF U.P. & ORS reported in (2015) 6 SCC 287 inasmuch as there is no averment made in the complaint as regards the attempt made by the complainant in approaching the jurisdictional police station and on refusal of registering a complaint approaching the superior officers of the Station House officer in the complaint nor is the complaint supported by a verifying affidavit verifying the aforesaid

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WP No. 27755 of 2018 C/W WP No.26081 of 2018

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averments. As such, he submits that the proceedings are required to be quashed.

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Sri.R.B.Deshpande, learned counsel for respondent No.2 submits that there are prima facie allegations which have been made in the complaint which establish that there are serious offences which are required to be tried and as such, the learned Magistrate has taken cognizance and referred the matter for investigation and as such, he submits that the above petition requires to be dismissed and this Court ought not to intercede at the stage of investigation.

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Heard Sri.Y.Hariprasad, learned counsel for the petitioners and Sri.Mahesh Shetty, learned HCGP for respondent No.1 and Sri.R.B.Deshpande, learned counsel for respondent No.2 in the both the matters and perused papers.

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WP No. 27755 of 2018 C/W WP No.26081 of 2018

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There is substance in the submission made by Sri.Y.Hariprasad, learned counsel for the petitioners, inasmuch as the dicta laid down by the Hon’ble Apex Court in Priyanka Srivastava’s case has not been followed more so as regards paras 22, 30 and 31 thereof, which are reproduced hereunder for easy reference:

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22. In Anil Kumar v. M.K. Aiyappa [(2013) 10 SCC 705 : (2014) 1 SCC (Cri) 35] , the two-Judge Bench had to say this : (SCC p. 711, para 11)

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“11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [Maksud Saiyed v. State of Gujarat, (2008) 5 SCC 668 : (2008) 2 SCC (Cri) 692] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing

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the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation.”

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30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.

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31. We have already indicated that there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is

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found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari [(2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.

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The above dicta not having been followed, the private complaint and the order passed by the learned Magistrate taking cognizance falls foul of the decision of the Hon’ble Apex Court. As such, I pass the following:

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ORDER

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i. The Writ Petitions are allowed.

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ii. The proceedings initiated against the petitioners/accused in PCR No.87/2018 pending on the file of II Additional Civil Judge (Senior Division)

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& JMFC., Chitradurga are quashed. Consequently, FIR No.67/2018 registered by the Chitradurga Kote

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Police Station against the petitioners/accused are also quashed.

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iii. Liberty is however reserved to the complainant to file a fresh complaint by following the dicta laid down by the Hon’ble Apex Court in the case of

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PRIYANKA SRIVASTAVA & ANR VS STATE OF U.P.

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& ORS reported in (2015) 6 SCC 287 , which shall

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be considered without reference to limitation, if any.

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Sd/JUDGE

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Prs*

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List No.: 1 Sl No.: 37

Smt Rekha Prasad v. State Represented by

Case brief

What is this about?

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Smt Rekha Prasad v. State Represented by

Case brief

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