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. aThe 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 eeereferred 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 eernot 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 errriy 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 ssdid 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 Seethe 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 coemechanically 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 the3 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 a20 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 oNunder 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.