The stage of Cognizance would only arise after the report of Investigation: Karnataka High Court

a697 0 tyorotika mondal IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 DAY OF JANUARY 2021 THE HON BLE MR. JUSTICE H.P. SANDESH CRIMINAL PETITION No.4276 2020 MRS. VILASINI SEEVANTHAN AGED ABOUT 35 YEARS D 0. SEEVANATHAN NO.TFO3 MAY FLOWER APARTMENT WHEELER ROAD FRAZER TOWN BENGALURU NORTH BENGALURU 560 005 ALSO OFFICE AT M S. VYMIGRATE MIGRATION AND CONSULTANTS INDIA PVT. LTD. FLOOR EVA MALL NO.211 2 60 BRIGADE ROAD BENGALURU 560 025. PETITIONER BY SRI. AYANTIKA MONDAL ADVOCATE STATE OF KARNATAKA REP BY ASHOK NAGAR POLICE STATION REP BY PUBLIC PROSECUTOR MR. PURUSHOTTAM. K S 0. KAMALA KANNAN AGED ABOUT 44 YEARS C e r t i f i e d copy c o t a in s . . . .h . ) . . i s R e r e ivod NO.75 6H CROSS KAMANAHALLI MAIN ROAD BENGALURU CITY KARNATAKA 560 084. BY SMT. NAMITHA MAHESH B.G. HCGP FOR R1 THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.c. PRAYING TO QUASH FIR BEARING No.59 2020 DATED 20.02.2020 OF ASHOK NAGAR POLICE STATION BENGALURU CITY WHICH IS PENDING ON THE FILE OF THE MAGISTRATE COURT MAYO HALL UNIT BENGALURU CITY FOR OFFENCES REGISTERED UNDER SECTIONS 419 420 AND 506 OF IPC 1860. THIS CRIMINAL PETITION COMING ON FOR ADMISSIONN THIS DAY THE COURT MADE THE FOLLOWING: This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the order dated 15.02.2020 passed by the learned Magistrate in PCR No.50506 2020 for the offence punishable under Sections 419 420 and 506 of IPC. The factual matrix of the case is that respondent No.2 herein had filed the private complaint invoking Section 200 of Cr.P.C. and on presentation of the complaint the learned Magistrate passed the following order: FK TO 3 the complainant and perused materials placed on record. This complaint is referred to ashoknagar P.S. for investigation u s 156(3) of Cr.P.C. The concerned IO is directed to submit final report by next date of hearing. Await final report call on 121.05.2020." Learned counsel for the petitioner would submit thnat learned Magistrate while referring the matter under Section 156(3) of Cr.P.C. has not applied his judicious mind and the matter for investigation without looking into the contents of the complaint and the documents placed along with the complaint. Per contra learned counsel appearing respondent No.2 would submit that learned Magistrate while passing the order mentioned that he has perused the materials placed on record and referred the matter for investigation under Section 156(3) of Cr.P.C. Hence the learned Magistrate has applied his mind. Having heard the learned counsel for the petitioner and learned counsel appearing for the respondent and on perusal 4 of the order impugned except mentioning that perused the materials on record learned Magistrate has not applied his mind whether the offences invoked are cognizable or non cognizable offence and even nothing is mentioned in the order whether he has looked into the contents of the complaint and documents produced along with the complaint. Without application of mind the learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation. Having heard both the learned counsel for the parties with regard to non application of mind is concerned the order above learned Magistrate except ordering to register the case as PCR he has not applied his judicious mind even not referred as to whether he has perused the contents of complaint and documents but has mechanically passed the order invoking Section 156(3) of Cr.P.C. The Apex the case of MAKSUD SAIYED V. STATE OF GUJARATH AND OTHERS reported in 5 sCC 668 categorically held that the learned Magistrate before referring the matter under Section 156(3) of Cr.P.C. has to apply his judicious mind and pass appropriate orders. RT O 7. the principles With reference to the submission of non compliance the case of PRIYANKA SRIVASTAVA AND ANoTHER v. STATE OF UTTAR PRADESH AND OTHERS reported in 5 SCC 287 the Apex Court laid down the matter that referring the conclusion has Come investigation is nothing but an abuse of process. The factual aspects of the case in Priyanka Srivastava s case is when there is a protection under Section 32 of SARFAESI Act and when the proceedings was initiated against the Bank officials and when they took recourse to recover the balance amount Complaint was filed. Hence the Apex Court has made an observation that same is nothing but an abuse of process. This Court would like to refer to the judgment of the Apex Court rendered subsequent to the judgment of Priyanka Srivastava s case i.e. in the case of HDFC Securities Ltd. and Others v. State of Maharashtra and Another reported in AIR 2017 SC 61 with regard to referring the matter under Section 156(3) of Cr.P.C. it is held that stage of cognizance would arise only after investigation report is filed before the Magistrate. The T O 6 order directing the Investigating does not amount to causine injury of irreparable nature and the said order cannot n9 an quashed at a premature stage. The Apex Court in paragraph No.24 of the judgment held that exercising the powers under Section 482 of Cr.P.C. at the stage of referring the matter under Section 156(3) is nothing but premature and the same has to be exercised sparingly. The Apex Court the case of DINESHBHAI CHANDUBHAI PATEL V. STATE OF GUJARAT AND oTHERS reported in 2018(3) SCC 104 with regard to referring the matter under Section 156(3) of Cr.P.C. has summarized the principles as to how to deal with context to challenge to FIR. It is held that the power vests with the Investigating Officer under Section 157 of Cr.P.C. to investigate the matter and the Court cannot act like an investigating agencY nor can exercise the like an appellate Court question is required to be examined keeping in view of the contents of the FIR and prima facie material if any requiring no proof. Once the Court finds that FIR does discloses prima facie commission of any cognizable offence it should stay its hand and allow the investigating T O machnery to step in to nitiate the probe to unearth the crime in accordance with the procedure prescribed in the Cr.P.. 10. Having perused the principles laid down judgments referred supra HDFC Securities Ltd. and Others case and Dineshbhai Chandubhai Patel s case and also taking into consideration of the principles laid down in the Priyanka Srivastava s case the Court has to look into the facts and circumstances of each case. I have already pointed out that when the lawful recourse was exercised by the bank officials a false case was filed against them and at that juncture Considering the facts and circumstances of the case the Apex Court held in the Priyanka Srivastava s c a s e that it is nothing but an abuse of process. By considering the factual in view of the decision aspects of the case is considered rendered by the Apex Court in HDFC Securities Ltd. and Others case subsequent to the said judgment held that the order directing the Investigating does not amount to causing an injury of irreparable nature and the order cannot be quashed at a premature stage. 8 In view of the discussion made above I pass the The petition is allowed. i) The 15.02.2020 in PCR No.50506 2020 is hereby set aside and the matter is remitted back to the Magistrate to consider the same afresh and appropriate order applying judicious mind in accordance with the principles laid down in the judgments referred supra. In view of the disposal of the main petition I.A. if any does not survive for consideration and the same stands disposed 251 )OM . 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Summary: Referring the matter for investigation without the application of judicious mind, is nothing but an abuse of process. At the same time, that stage of cognizance would arise only after investigation report is filed before the Magistrate. These principles were upheld by the High Court of Karnataka presided by J. H.P. Sandesh in the case of Mrs. Vilasini Seevanthan &amp; anr. vs. State of Karnataka &amp; othrs. [CRIMINAL PETITION No.4276/2020]. In the instant case, the petitioner filed this petition before the Court to quash the order passed by the learned Magistrate in PCR No.50506/2020. The learned counsel Adv. Ayantika Mondal, for the petitioner submitted that learned Magistrate while referring the matter under Section 156(3) of Cr.P.C. had not applied his judicious mind and mechanically referred the matter for investigation without looking into the contents of the complaint and the documents placed along with the complaint. Per contra, the respondent submitted that the Magistrate while passing the order mentioned that he has perused the materials placed on record and referred the matter for investigation thereby applying his mind. The court in the present case observed, “Having heard the learned counsel for the petitioner and learned counsel appearing for the respondent and on perusal the impugned except mentioning that perused the of the order materials on record, learned Magistrate has not applied his mind whether the offences invoked are cognizable or non cognizable offence and even nothing is mentioned in the order whether he has looked into the contents of the complaint and documents produced along with the complaint. Without application of mind the learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation.” The court further referred to the principles laid down in the judgments mentioned below in order to reach to conclusion for the matter in concern of the case at hand. The honorable court held, “With regard to referring the matter under Section 156(3) of Cr.P.C. the court summarized the principles as to how to deal with context to challenge to FIR. It is held that the power vests with the Investigating Officer under Section 157 of Cr.P.C. to investigate the matter and the Court cannot act like an investigating agency nor can exercise the powers like an appellate Court, question is required to be examined, keeping in view of the contents of the FIR and prima facie material, if any, requiring no proof.” The Apex Court in this case categorically held that, “The learned Magistrate before referring the matter under Section 156(3) of Cr.P.C. has to apply his judicious mind and pass appropriate orders. This Court in the Maksud Saiyed case 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 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.  The court contended, “It needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act , invokes the jurisdiction under section 156(3)  Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.” The court further held, “We are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR.”  In this case, the honorable court observed, “It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appeared that this order under section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227  of the Constitution of India or under section 482  of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions and the appeal is dismissed.”