JN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 21st day of June, 2010
BEFORE
THE HON'’BLE MR. JUSTICE
ARALI NAGARAJ
CRIMINAL PET! 21, 722 and 723/2010
BETWEEN
1. YN Ranighandra Rao,
S/o.P Narayana Rao, 5C year:
ee Y N Balakrishna Rao,
S/o.P N arayana Rao, 40 years.
Both residing at Bangaru
Krishna House, Alivekodi,
Thenka Yermal, Udupi Taluk &
District. . Petitioners are
common in all the
petitions
(By Sri S G Bhagavan, Adv. is common in all the petitions)
ie M/s.CCI Limited,
A Company incorporated under the
Companies Act, The Factory Road,
Manipal-576 104, Udupi Taluk,
Represented by Mrs.Susheela
Chandrakumar, w/o.Chandrakumar,
40 years, Kalpana Annexure,
Upendra Baugh, Udupi - 576 101.
aThe State of Karnataka,
By Manipal P 8,
(amened as per order
dtd.4.3.10) .. Respondents in
CHP No.727/2010
(By Sri S Mahesh & Co., Adv. for R1
Sri Vijaykumar Majage, HCGP for R2.are common inal
the petitions)
AND:
{i
Chitrakala Trade Investm
and Business Finarice Limit
Syndicate House,
Manipal-576 104, Udupi Taluk,
Represented by Mrs.Sushe
Chandrakumas, w/c.Chandr
40 years, Kalpana Annexure,
Upendra Baugh, Udupi ~ 576 101
Auinar,
The State of Karnataka
By Manipal P
(amened as per order
dtd.4.2,.10)
.. Respondents in
CitP No.722/2010
M/s.Sea Rock Investments
Limited, Syndicate Hou:
Manipal-576 104, Udupi Taluk,
Represented by Mrs.Susheela
Chandrakumar, w/o.Chandrakumar,
40 years, Kalpana Annexure,
Upendra Baugh, Udupi - 576 101.
—~2. The State of Karnataka,
By Manipal P'S.
(amened as per order
dtd.4.3.10) ... Respondents in
CrP No.723/2010
These Crl.Ps are filed U/S 482 of Cr.P.C., praying
to quash the entire proceedings in PC Nos.1, 2 and 3 of
2010 respectively in the Court of the Chief Judicial
Magistrate and Civil Judge (Sr.Dn.), Udupi including the
order dated 8.1.2010
These Cr1.Ps coming on tor admission this day, the
court passed the following
The legality and correctness of three orders dated
8.1.2010 passed respectively in PCR Nos.1, 2 and 3 of
2010 by the learned Chief Judicial Magistrate (Sr.Dn.),
Udupi (hereinafter referred to as “CJM" for short)
agairist the petitioner Nos.1 and 2 herein referring the
respective complaints to the PSI, Manipal PS under
Section 158(%) of Cr.PC for investigation is challenged in
these petitions under Section 482 of Cr.PC. Though the
coruplainants in the said three cases are different, the
accused are the same. Further, the offences alleged in
the respective complaints against the — revision
—petitioners - accused are also same. The nature of
three impugned orders passed by the learned CJM is
same. Therefore, these three criminal petitions are
disposed of by this common order.
2. Though these criminal petitions are listed for
admission, having regard te short question of law
involved therein and the facts and circumstances of the
case, they are taken for final disposal and the
arguments of Sti $ G Bhagawan, the learned counsel for
the petitioriers ~- accused and Sri S Mahesh, the learned
counsel for the 1s respondent - complainant and Sri
Vijaykumar Majage. the learned High Court Government
Pleadey representing the 2"¢ respondent ~ State are
heard, Perused all the three impugned orders, the
averments in the respective complaints in the said cases
and other material placed on record by the petitioners —
accused.
3. Stated in brief, the facts leading to the present
petitions are as under:
—<_—~othei
The respective complaints in the said three
cases before the learned CJM filed their respective
complaints under Section 200 Cr.PC against the
petitioner Nos.1 and 2 alleging that they
committed the offences under Sections 403, 406,
467 and 471 read with Section 34 iPC. All the saic
complaints were preseated before the iearned CJM
on 8.1.2010. He passed the impugned orders
referring the respective complaints under Section
156(3) Cr.PC to the FSI, Manipal PS for
investigation, The correciness of the respective
impugned orders passed under Section 156(3) of
CrPC is challenged by the petitioners ~ accused
who are comsion in these petitions.
All the three impugned orders are similar to each
and one of them reads as under:
“ORDER
Complainant is present. Counsel for the
complainant submitted that the above is case
connected to forgery. Therefore he requested
to refer the complaint to Deputy
Superintendent of Police, Udupi for
investigation.
It is well established Principle of law
that in a@ Private Complaint it can not be
eeereferred to officer above the rank of P.S.I.
Therefore, Refer the complaint to P.S.L,
Manipal P.S. U/Sec. 156(3) of Cr.P.C. for the
investigation and to submit the report.
Sd/-
Pri.Civil Judge (Sr.Dn.) &
CJM, Udupi.”
5. _ Referring to the above impugned order and placing
strong reliance on the decisions reported in:
() 1999(3) KLD 305 (DB) = 1899 CrilJ 3909
(Guruduth Prabhu and others vs- MS Krishna Bhat
and others),
(Gi) 2604 ARR - Kant. HCR 43 (IPR Venugopal —
vs- S M Krishna and others} and
(iii) (2008) 5 SCC E68 (Maksuc Saiyed -vs- State
of Gyarai and others),
Sri S G Bhagwan, the learned counsel for the petitioners
~ aceused contends that while passing the impugned
orders under Section 156(3) Cr.PC, the ‘Magistrate has
fo apply his mind to the contents of the complaint for
satisfying himself, whether they disclose any cognizable
offence’ and therefore all the impugned orders, which
are passed by the learned CJM mechanically without
~~applying his mind to the allegations therein, deserve to
be set aside. He further contends that there no
indication in any of the impugned orders, that, before
referring the complaint to the police under Section
156(3) Cr.PC for investigation, the learned CJM applied
his mind to the facts alleged in the said com)
order to form an opinion that the said allegations make
out, prima facie, any cognizable offence against the
accused thereit: and therefore all the impugned orders
are liable to be set aside
6. In first of th
above said decisions, relied upon by
the learned counsel for the petitioners — accused ie, in
the case of Guruduth Prabhu and others vs- MS Krishna
Bhat and others (1999(3) KLD 305 (DB) = 1999 Cri.LJ
8969, this Court has observed as under:
“Criminal P.C. (2 of 1974), Ss.156(3), 482 —
Investigation - Powers of Magistrate -
Complaint for offence under S.167, Penal
Code ~ Averments in complaint cryptic and
eernot disclosing alleged offence - Order of
Magistrate directing investigation under §
156(3) without applying his mind to
allegations made in complaint ~ Is without
jurisdiction — High Court either uncer S.4S2
or under Art. 226 of Constitution empowered
to quash investigation.
Para 10..... “Sub-section (1} of Section 156
confers on the police uncestricted power to
investigate a cognizable offer.ce without the
order of a Magistrate or without a formal
first inform
nt report. The police are
entitled to investigate cognizable offence
either on information under Section 154 or
on their own motion, on their own knowledge
or from other reliable information. This
statutory right to investigate cognizable
offence cannot be interfered with or controlled
bu the Courts including the High Court. It is
open to the Court to take or not to take
action when the police prefer a chargesheet
after investigation. But the Court's function
does not begin until the chargesheet is filed.
Under Sub-section (2) police can investigate
——_—any offence taking the matter to be a
cognizable offence although _ultimately
charges are filed for a non-cognizable offence
since while investigating a cognizable
offence, the police are not dcharred from
investigating any non-cognizaile offence
a
ising out of the same facts and inchiding it
in the report to be filed by them uncer
Section 173, Cr. P.C., Sub-section (3)
empowers the Magistrate to refi and direct
the police io investigate a cognizable offence.
But there is a restriction on the Magistrate
before directing the police to investigate
under Sub-section (3), the Magistrate should
form an opinion that the complaint filed by
the complainant before him discloses a
cognizable offence. When the allegation made
in the compiuiit does not disclose cognizable
offence, the Magistrate has no jurisdiction to
order police investigation under Sub-section
(3). In the present case, the learned
Magistrate without applying his mind had
directed an investigation by the police. Such
an order which is passed without application
of mind is clearly an order without
jurisdiction. Therefore, the order passed
errriy
directing the police to investigate under Sub-
section (3) of Section 156, Cr. P.C, passed
without jurisdiction is liable to be quashed
by this Court either under Section 482.
CrP.C, or under Article 226 of tne
Constitution of India, We find frem the
materials on record, the learned Magistrate
has not at all applied his mind. before
directing police investigation under Section
156(3), Cr. P.C If
his mind, the Magistrate could have found
that no cognizable offence is masie out even
he Mayistrate kad applied
if the entire allegatiors made in the
compleint are accepted. We have already
come to the conclusion that none of the
complaints filed by the complainants
disclese a cognizable offence alleged under
Section 157, IPC. On this count alone the
direction given by the Magistrate is Hable to
be quashed.
Fara 11, Sub-section (3) of Section 156 Cr.
PC. empowers Magistrate to order an
investigation. Under Section 157(1), Cr. P.C.
an officer in
arge of a Police Station having
reason to suspect the commission of an
<<offence which he is empowered under Sec.
156, Cr.P.C. to investigate should send a
report to the Magistrate empowered to take
cognisance of the offence upon a Police
report and should proceed im, person or
depute one of his prescribed deputies to
proceed to the spot te. investigate u/Sec.
157(1)(a) when the offender is named and if
the case is not cfia serious nature the officer
need proceed in person or depute his
subordinate. Under Section 157(i)(b) if it
appears to such Police Officer that there is
no sufficient ground for entering on an
investigation he shall
ot investigate the
case and the officer should inform the
complainant “uzder the prescribed manner.
‘Thus, the Pclice Officer who is empowered to
investigate on the information received by
hira of the commission of a cognizable
offence can decide whether there is no
sufficient ground for entering into an
investigation and if there is no sufficient
ground he should not investigate the case.
But once the Magistrate orders an
investigation u/S. 156(3), Cr. P.C. the Police
Officer is bound to investigate the matter and
<—there is no question of his deciding not to
investigate. Thus, by an order of the
Magistrate u/S. 156(3) the discretion given to
the Police Officer u/S. 157 is taken away. It
is therefore very important thai the
Magistrate applies his mind and finds thet
the allegations made in the complaint filed
under Section 200, Or. P.C, before him
disclose an offence. If every compiaint filed
under Section 200, Cr.P.C, is referred to the
police under Section 156(3)_ without
application of mind ahout the disclosure of
an offence, there is every likelihood of
unscrupulous complainants in order to harass
the slleged accused named by them in their
complaints making balé allegations just to
see that the alleged accused are harassed by
the police whe heve no other go except to
investigate as ordered by the Magistrate.
‘Therefore, it is mandatory for the Magistrate
to apply his mind to the allegations made in
the complaint and in only cases which
disclose an offence, the Magistrate gets
jurisdiction to order an investigation by the
police if he does not take cognizance of the
offence. In the present case, the learned
_——o_Magistrate without applying his mind has
blindly ordered the investigation under
Section 156(3) and the said order
therefore, without jurisdiction”
{Emphasis supplied by mel
7. Insecond of the above said decisions in the case of
P R Venugopal -vs- S M Krishna reported in 2004 AIR —
were as under:
Kant. H.C.R. 43: The facts
“The complainant therein presented a
complaint under Section, 269 Cr.PC against the
respondents therein for the offence under Section
120-B read with Section 34 IPC alleging that the
respondenis had conspired and actually
participated in the conspiracy for the release of
the Cine Star. On the presentation of the
complaint, the learned Additional — Chief
Metropolitan Magistrate, Bangalore. referred the
complaint u/S 156(3) Cr.PC to the High Ground
Police for investigation and report in pursuance of
the memo filed by the complainant on 11.2.2003.
‘The Inspector of Police, High Ground Police
Station, submitted a report expressing his inability
to register a case on the ground that the complaint
ssdid not disclose any cognizable offence. After the
said report was submitted, the learned ACMM
issued notice to the complainant. He appeared
and filed his objections with a prayer te reject the
report of the police and to redirect the Station
House Officer to investigate the matter under
Section 155(2) Cr.PC. ‘The learned ACMM rejected
the said objections and dismissed the complaint.
Aggrieved by the order of dismissal of the said
complaint, the coinplainant had approached this
Court
On the above facts, this Court observed at para 22 of its
order as under:
Para 22: “this makes clear that even for
refering the matter for investigation, the
Court has to apply its mind to find out
whether or not there is sufficient ground for
proceeding. Therefore, it bas to be examined
on the basis of the allegations contained in
the complaint, whether there are sufficient
materials to proceed with and to make a
reference for investigation as prayed for by
Seethe Complainant under Section 155(3)
Cr.PC.”
8. In third of the above said decisions i.c., in the ca:
of Maksud Saiyed -vs- State of Gujarat and others
(2008) 5 SCC 668, the Hon'ble Supreme Court has
observed at para No. 13 of its judgment as under:
Para 13: “Where a jurisdiction is exercised on
a complaint petitiun filed in terms of Section
156(3) or Section 20 of the Code of Criminal
Procedure, the Magistrate is required to
apply his mind. The Penal Code docs not
contain any provision for attaching vicarious
abi
or the Directors of tne Company when the
y os the part of the Managing Director
accused is the Company. The learned
Magistrate failed to pose unto himself the
correct question viz. as to whether the
complaint petition, even if given face value
and taken to be correct in its entirety, would
lead to the conclusion that the respondents
herein were personally liable for any offence.
The Bank is a body corporate. Vicarious
liability of the Managing Director and
Director would arise provided any provision
—16
exists in that behalf in the statute. Statutes
indisputably must contain provision fixing
such vicarious liabilities. Even for the said
purpose. it is obligatory on the part of the
complainant to make requisite allegations
which would attract the provisions
constituting vicarious tiability.
[emphasis suppiied]
9. Insofar as the allegations in the respective
complaints in these three cases are concerned, when
questioned by the Court, “whether the allegations in
each of the said complaints make out any cognizable
offence agains! the petitioners — accused?” Sri S G
Bhagwan, the learned. counsel for the petitioners —
accused, fairly concedes that they do constitute one or
the other of the cognizable offences alleged against the
petitioners. While conceding so, he further contends
that there is no indication in any of the impugned
orders made by the learned CJM that he applied his
mind to the allegations in the respective complaints and
therefore the impugned orders passed by him
coemechanically under Section 156(3) Cr.PC referring the
respective complaints to the police for investigation
cannot be sustained in law.
10. On careful reading of the facts in ail the above
said three decisions relied upon by the learned counse!
for the petitioners - accused. it is clear that this Court
as well as the Hon'ble Supreme Court, after considering
the allegations in the complaint in the respective cases,
arrived at the conclusion that those allegations did not
disclose any cognizable offence, much less, the offences
alleged against the accused therein and therefore it was
held in all the said three decisions that the learned
Magistrate had not applied his mind to the allegations
in the complaint and hence the impugned orders passed
nder Section 156(3) Cr.PC were without jurisdiction.
But, in the present cases, it is not in dispute that the
averments made by the respective complainants in their
respective complaints do make out prima facie case for
one or the other offence against the3
petitioners - accused. The main contention of the
learned counsel for the petitioners herein is that there is
no indication in any of the impugned orders passed by
the learned CJM that he applied his mind to the facts
alleged in the respective complaints and formed his
opinion that the allegations therein. prima facie
constitute any cognizable offence against the petitioners
~ accused and therefore the said compiaints deserved to
be referred to the police as provided under Section
156(3) Cr.FC.
11. I respectfis!ly agree with the view taken by this
Court in (i) Gurudutht Prabhu & ors. -vs- M S Krishna
Bhat and others (1999 Cri.LJ 3909) and (ii) P R
Venugopai -vs- S M Krishna and others (2004 AIR Kant.
HR 43) and. | also follow the observations of Hon'ble
Supreme Court in Maksud Saiyed -vs- State of Gujarat
and others {(2008) 5 SCC 668] and hold that before
passing an order under Section 156(3) Cr.PC referring
the complaint filed under Section 200 Cr.PC to the
—<——police for investigation, it is necessary for the Magistrate
to peruse the allegations made in the complaint and
from his opinion that they disclose the commission of &
cognizable offence. Where the Magistrate does net do so,
but mechanically passes order referring the complaint
to the police for investigation, it may result in
unnecessary harassment to the accused named in the
complaint if the allegations in the complaint do not
disclose any cognizable offence. In such an event,
personal Liberty and reputation of the accused named
therein would be affected. Where the allegations in the
complaint do not disclose any cognizable offence. the
order passed by the Magistrate under Section 156(3)
Cr.PC yeferring such complaint to the police for
investigation would be an order without jurisdiction.
Besides this, the police concerned would not be in a
position to register any crime against the persons
named in such complaint the allegations wherein do not
“TT
disclose any cognizable, against them. Therefore it is
a20
quite necessary that before passing an order u/S.
156(3) Cr.PC referring the complaint to the police for
investigation, the Magistrate should apply his miné to
the facts alleged in the complaint and see whether the
said facts disclose any cognizable offence and, if he
forms an opinion that the said facts disclose a
cognizable offence, then only ke stiall proceed to pass
an order u/S, 156(3) Cr.PC.
12. It is pertinent to note that though it is laid down,
in all the three decisions referred to supra that before
passing an ordet under Section 156(3) Cr.PC, the
Magistrate has to apply his mind to the allegations in
the complaint and that such an order should indicate
application of his mind by the Magistrate, in none of the
said decisions, it is laid down as to what the learned
Magistrate has to observe in his order passed under
Section 156(3) Cr.PC, for referring the complaint to the
police, in order to indicate that he applied his mind to
the facts alleged in the complaint. In Guruduth
—~Prabhu’s case (1999 Cri.LJ 3909) referred to supra,
Division Bench of this Court has observed as under:
“We find from the materials on record; the
learned Magistrate has not at ait applied hi
mind before directing police investigation
under Section 156(3),
P.C If the Magistrate
had applied his mind, the Magistrate could
have found that no cognizable offence is
made out everdif the entire allegations made
in the compiaint are accepte
Further, in the case of Maksud Saiyed (2008(5) SCC
668) referred to supra, Hon'ble Supreme Court has
quoted with approval, the observations made by the
High Court in the impugned order, and the same reads
as under:
“it appears to the Court that the learned
Chief Judicial Magistrate has not applied his
mind while passing the order under Section
156(3) of the Criminal procedure Code
directing the police to investigate in the
matter. The impugned order, on the face of
—<—it, reveals that he has not gone through the
complaint.”
It appears from the above observations in the: said
lied his
decisions that “whether the Magisirate has apt
mind to the faced allkged in the complaint oF not’ is io be
found only on reading of the averments in the
complaint. This is what the Hon'ble Supreme Court
and this Court have done in the said cases.
13. Application of mind to the facis alleged in the
complaint is as an abstract act, which has to be found
only on going through the facts alleged in the complaint.
Since it is noi in dispute that the allegations in
respective complaints in the instant cases do disclose
some cognizable offences against the revision
Fetitioners. if cannot be said, even following the
observations made by this Court and the Hon'ble
Supreme Court in fhe above said decisions, that the
learned Magistrate did not apply his mind to the
allegations made in the respective complaints.
=<14, In order to indicate that he applied his mind to the
facts alleged in the complaint, the Magistrate could have
stated in the impugned orders passed wader Section
156(3) Cr.PC as “perused the allegations in the
complaint” or “allegations in the complaint disclose
cognizable offence” or “the allegations in. the complaint
make out cognizable offence requiring investigation by
the police’ ete. If any of such statements is made in an
order under Section 156(3) Cr.PC. one can make out
from the order itself that ‘the learned Magistrate applied
his mind to the facts alleged in the complaint’. If such
statement is rade by the Magistrate in his order under
Section 156(3) Cr.PC, there would be no scope for the
respondent - accused, as in the instant case, to
challenge the correctness of such order on the ground
thet the learned Magistrate passed it mechanically
without applying his mind to the facts alleged in the
complaint. In order to avoid such a situation, it would
be advisable that the Magistrate, while passing an order
oNunder Section 156(3) Cr.PC shall make some
observation therein as stated above indicating that he
applied his mind to the facts alleged in the complaint
disclose
and formed his opinion that the said allegations
a cognizable offence and hence the complaint requires
to be referred to the police for investigation as provided
under Section 156(3) Cr.PC.
15. In view of my foregoing discussion, I am of the
considered opinion that though the icarned Magistrate
has not made any observation in any of the impugned
orders indicatiizg that he applied his mind to the facts
alleged ir the respective complaints, since it is not in
dispute that trie allegations in the respective complaints
do make out one or the other of the cognizable offence
alleged against these petitioners ~ accused, I do not find
any reason to interfere with the impugned orders.
Hence, all these three Criminal Petitions are hereby
dismissed as being devoid of merit. No order as to costs.‘The Registrar Judicial shall send a copy of this
order to all the learned Principal District and Sessien:
Judges in the State with a direction to circulate the
came amongst all the Magistraies working in their
respective units.
sd/3
oe
Judge
Bkm.