Partly allowed

M/S Umrah Developers v. the State of Karnataka

Karnataka HC2 Apr 2024WP/1572/2024

Case brief

AI extract

What is this about?

Petitioner sought quashing of an FIR and charge sheet under Sections 406 and 420 IPC, restricting arguments to the cognizance order of 04.05.2023. The court found that portion ministerial in nature and lacking application of mind, set aside the cognizance, remitted the matter for fresh orders, and directed an enquiry into the ministerial officer's entry.

What did the court decide?

Cognizance order dated 04.05.2023 set aside; matter remitted to Magistrate for fresh orders on the charge sheet within 15 days; enquiry ordered into ministerial officer's entry.

M/S Umrah Developers Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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1 - NC: 2024:KHC:13575 WP No. 1572 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO. 1572 OF 2024 (GM-RES)

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BETWEEN:

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M/S UMRAH DEVELOPERS HAVING ITS OFFICE AT NO 22/1, MILLERS TANK BUND ROAD, KAVERIAPPA LAYOUT, BENGALURU - 560052 REPRESENTED BY ITS PROPRIETOR, SRI . YUSUF SHERIFF

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…PETITIONER

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(BY SRI. C.V. NAGESH, SENIOR COUNSEL FOR SRI. GAURAV N.,ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA THROUGH JAYANAGAR POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 560001

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SRI. NAVEED MOHAMMED AGED ABOUT 51 YEARS S/O MOHAMMED ATTAULLA, R/AT J. SONS DEVELOPERS, NO 128/3, 19^TH B CROSS, ELEPHANT ROCK ROAD, 3^RD BLOCK, JAYANAGAR, BENGALURU - 560011

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…RESPONDENTS

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(BY SRI. PRAMOD NARI., SENIOR COUNSEL FOR SRI. ANAND MUTTALI.,ADVOCATE FOR R2; SRI. CHANNAPPA ERAPPA., HCGP FOR R1)

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2 - NC: 2024:KHC:13575 WP No. 1572 of 2024

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH FIR DATED 06/04/2019 BEARING CRIME NO. 0073/2019 PRODUCED HERETO AS ANNEXURE-A WHICH WAS REGISTERED BY THE R1 HEREIN, BASED ON A COMPLAINT LODGED BY R2 HEREIN, PRODUCED HERETO AS ANNEXURE-B, IN SO FAR AS THE AS THE PRESENT PETITIONER IS CONCERNED, FOR THE ALLEGED OFFENCES PUNISHABLE U/S 406, 420 IPC, 1860 AND ETC.

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THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for the following reliefs:

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i. Quash the FIR dated 06/04/2019 bearing Crime No. 0073/2019 produced hereto as Annexure-A which was registered by the R1 herein, based on a complaint lodged by R2 herein, produced hereto as Annexure-B, in so far as the as the present petitioner is concerned, for the alleged offences punishable u/s 406, 420 IPC, 1860.-

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ii. To quash the charge sheet dated 28/03/2023, produced hereto as Annexure-E, filed before the IV Addl. Chief Magistrate, Bengaluru, in so far as the present petitioner is concerned, for the alleged offences punishable u/s 406, 420 of the Indian Penal Code 1860.-

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iii. To quash entire proceedings in CC No. 10899/2023, pending on the file of the IV Addl Chief Metropolitan Magistrate, Bengaluru, in so far as the present petitioner is concerned. A copy of the entire order sheet maintained in the case in Cc No. 10899/2023, which is presently pending on the file of the IV Addl. Chief Metropolitan Magistrate, Bengaluru, is produced hereto as Annexure-F.

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3 - NC: 2024:KHC:13575 WP No. 1572 of 2024

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iv. Grant any such Order, Direction and/or Relief or Reliefs as deemed fit and proper in the circumstances of the case in the interest of justice.

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Sri.C.V.Nagesh, learned Senior Counsel though submits that there are various other grounds for the present petition, he restricts the arguments to the order of cognizance taken on 04.05.2023.

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His submission is that after the trial Court had granted bail, the matter was adjourned to 13.06.2019 and on 13.06.2019, the trial Court had directed for the case to be put up after the receipt of final report. The final report having been received on 04.05.2023, an order was passed taking cognizance. By distinguishing two portions of the said order, his submission is that the first portion of the order is one which is not recorded by the Magistrate but by a ministerial officer and the second portion of the order does not indicate any application of mind by the Magistrate to take cognizance and therefore, he submits that the order of taking cognizance is bad in

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4 - NC: 2024:KHC:13575 WP No. 1572 of 2024

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law. His submission is also that if the Magistrate has not applied his mind to the charge sheet which has been filed to ascertain if there are any offences made out punishable as alleged in the charge sheet, then the order of cognizance would not be sustainable.

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Sri.Pramod Nair, learned Senior Counsel appearing for respondent No.2 would submit that both the portions of the order are by the Magistrate and are typed to the dictation of the Magistrate. If both portions are taken together, they would indicate that there is an application of mind by the Magistrate since in the first portion it is categorically indicated that the statement of the witnesses were perused so also material on record and thereafter cognizance was taken. On this basis, he submits that this ground has not been made out and the petition cannot be allowed on that sole basis.

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Having heard both the counsel, being of the considered opinion that this particular ground is now

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NC: 2024:KHC:13575 WP No. 1572 of 2024

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sufficient to decide the petition, the other arguments

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of both counsels were not heard.

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The order dated 04.05.2023 is reproduced hereunder

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for easy reference:-

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“The charge sheet submitted by PSI, Jayanagar PS against accused No.1 in Crime No.73/2019 for the offence punishable U/s. 406, 420 IPC. The Original FIR and complaint enclosed. Charge Sheet and connected papers checked. Perused the statement of the witnesses and materials on record. Accused No.1 is on regular bail. Charge Sheet copy furnished. For orders.

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Order

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Cognizance is taken for the offence punishable U/s 406, 420 IPC. Register the criminal case in Criminal Case Register No. III against accused No.1. Issue SS to accused no.1. Returnable by 03.08.2023.”

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A perusal of the first portion of the order indicates

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that a charge sheet has been submitted by the PSI, Jayanagar and that the original FIR and complaint are enclosed. It is further submitted that the charge

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sheet and connected papers are checked. A further noting has been made that the accused No.1 is on

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regular bail and charge sheet copy has been furnished. These statements made in the order sheet in my considered opinion cannot be said to be a judicial order but can only be a ministerial act of the file being put up. The only portion which could be said to be a judicial order is the portion which indicates ‘perused the statement of the witnesses and materials on record’.

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The proceedings being criminal in nature it is not only at the time of passing the judgment and conviction that the benefit is to be extended to the accused but even at the interlocutory stage. Having perused the so called order dated 04.05.2023, I am unable to come to a conclusion that the first portion is one which would qualify to be a judicial order passed by the Magistrate to the contra I am of the opinion that the same is a note which has been put up by a ministerial officer as aforesaid.

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NC: 2024:KHC:13575 WP No. 1572 of 2024

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If the first portion of the order dated 04.05.2023 is eschewed, the second portion of the order only indicates that cognizance is taken for offences punishable under Section 406, 420 IPC and the direction having been issued to register the criminal case. This in my considered opinion would not amount to proper application of mind by the concerned Magistrate while taking cognizance since there is no reference made to the charge sheet or the offence, nature of the offence or the like. In that view of the matter, I am of the considered opinion that at this stage itself it would be proper for the said order dated 04.05.2023 to be set aside and matter remitted to the Magistrate to enable the Magistrate to pass appropriate orders by applying his mind to the charge sheet presented lest it becomes an issue in future.

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It would also be required that a detailed enquiry be held into the matter by the Chief Metropolitan

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Magistrate to ascertain as to who has made the entry of the first portion of the order dated 04.05.2023 since it appears that a Ministerial Officer has made such an entry. In the event of it being found that it is the Ministerial Officer who has made such an entry, the Chief Metropolitan Magistrate to take action as required since the Ministerial Officer has made use of the portion of right side of the order sheet which is exclusively reserved for judicial orders. Ministerial officers are prohibited from making any entry on the right side of the order sheet. Enquiry to be conducted and report to be submitted within 6 weeks from the date of receipt of copy of this order.

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The Registrar (General) is also directed to issue necessary instructions to all the Ministerial Officers to not write or type anything on the right side of the order sheet but to use only the left side. Any such note to be made under the heading as an office note

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NC: 2024:KHC:13575 WP No. 1572 of 2024

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and signed by the Ministerial Officer. In view of the above, I pass the following:

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ORDER

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i) The *Writ Petition is partly allowed .

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ii) The second portion after the heading of the order taking cognizance of the offence under Section 406, 420 IPC dated 04.05.2023 is set aside since I have come to a conclusion that first portion is only an entry made to put up the charge sheet.

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iii) The matter is remitted to the Magistrate for passing fresh orders on the charge sheet by applying his mind. Such orders to be passed within a period of 15 days from the date of receipt of copy of this order and in the event

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the Magistrate were to take cognizance, the Magistrate would proceed thereon in accordance with law.

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iv) Though the above petition is disposed of, for putting up of the enquiry report and Circular

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*Corrected vide Chamber Order dated 23.04.2024

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NC: 2024:KHC:13575 WP No. 1572 of 2024

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10 -

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issued by the Registrar (General), re-list on

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11.06.2024 at 2.30 p.m.

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v) All contentions of both the parties are left open.

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Sd/JUDGE

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PRS

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List No.: 1 Sl No.: 19

M/S Umrah Developers v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

M/S Umrah Developers v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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