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2024 DIGILAW 557 (KAR)

Thara peethambaram v. State Of Karnataka

2024-09-25

M.NAGAPRASANNA

body2024
ORDER : The petitioners – accused Nos.1 and 2 are before this Court calling in question an order of the learned Magistrate dated 30.04.2024, passed in P.C.R.No.5636/2024, by which the learned Magistrate has referred the matter for investigation under Section 156(3) of the Cr.P.C. and also seek quashment of the crime registered by respondent No.2 in Crime No.157/2024, for the offences punishable under Sections 504, 506, 416, 419, 420 and 34 of the IPC. 2. Heard Sri C.V.Nagesh, learned senior counsel for the petitioners, Sri Jagadeesha B.N., learned Additional State Public Prosecutor for respondent No.1 and Sri Promod Nair, learned senior counsel for respondent No.2. 3. The first petitioner is the mother of petitioner No.2 and respondent No.2 and therefore, petitioner No.2 and the respondent No.2 are siblings and all are in squabble on certain dispute, which lead respondent No.2 before the learned Magistrate by filing a private complaint invoking Section 200 of the Cr.P.C. The learned Magistrate in terms of the order dated 30.04.2024, refers the matter for investigation as obtaining under Section 156(3) of the Cr.P.C. It is this reference that has driven the petitioner to this Court in the subject petition, apart from consequential action of the jurisdictional police registering the crime against these petitioners in Crime No.157/2024 for the offences so alleged. 4. Sri C.V.Nagesh, learned senior counsel for the petitioners would take this Court through the order dated 30.04.2024, which refers the matter for investigation, contending that it not only suffers from non-application of mind, but total non-application of mind, on the score that the order does not bear any reasons, and the matter is referred for investigation into its own Office. 5. Sri Promod Nair, learned senior counsel for respondent No.2 – complainant would submit that the order, is a matter of record no submission can be made beyond what is found in the order. 6. Learned Additional State Public Prosecutor would also toe the lines of the learned senior counsel for respondent No.2. 7. In that light, the only issue that falls for consideration at the hands of this Court at this juncture is, “whether the order of the learned Magistrate, referring the matter for investigation under section 156(3) suffers from want of application of mind”. 8. 7. In that light, the only issue that falls for consideration at the hands of this Court at this juncture is, “whether the order of the learned Magistrate, referring the matter for investigation under section 156(3) suffers from want of application of mind”. 8. The order so made on the private complaint so registered under Section 200 of the Cr.P.C., dated 30.04.2024, reads as follows: “ORDER The complainant has filed this private complaint U/Sec.200 of Cr.P.C. praying this Court to refer the complaint to the jurisdictional Police Station for registering the FIR against the accused for the offences punishable U/Sec.504, 506, 416, 419, 420 of the IPC. The complainant has filed affidavit and documents along with his complaint. Heard the counsel for the complainant. I have perused the contents of the complaint, the affidavit and other documents placed before me. The complainant has narrated the steps taken by him before approaching this Court. It appears that complainant has lodged the complaint at Rajagopalnagar Police Station. But it appears that the police have not received/not taken action the complaint. The complainant has complied with Sec.154(1) and 154(3) of Cr.P.C. But the police have not taken any action based on his complaint. Therefore, it makes clear that the complainant has complied with the conditions laid down by the Hon’ble Apex Court in the case of Priyanka Srivastava & other VS State of U.P. Therefore, in my opinion, it is a fit case to refer to the jurisdictional Police Station for registering the FIR and to conduct the investigation for the alleged offences. With these observations, I proceed to pass the following: ORDER Office is direct the investigation and to file Final Report. The PSI of jurisdictional police is hereby directed to conduct the investigation. Await Final Report. Call on: 10.06.2024.” (Emphasis added) The learned Magistrate records that the complaint has been filed under Section 200 of the Cr.P.C. The complainant has filed an affidavit along with the documents. The learned Magistrate, finding that it is in compliance of the judgment rendered by the Apex Court in the case of PRIYANKA SRIVASTAVA & OTHER VS. STATE OF U.P. refers the matter for investigation. The order of reference is what shocks the Court, it reads, ‘Office is direct the investigation and to file Final Report’. Apart from gross syntax errors. It does not bear even a semblance of application of mind. STATE OF U.P. refers the matter for investigation. The order of reference is what shocks the Court, it reads, ‘Office is direct the investigation and to file Final Report’. Apart from gross syntax errors. It does not bear even a semblance of application of mind. It becomes apposite to refer to the judgment of the Apex Court in the case of PRITI AGARWALLA V. STATE OF GNCT OF DELHI, 2024 SCC OnLine SC 973 wherein the Apex Court has held as follows: “14. The statutory scheme under the Act of 1989, through Act No. 27 of 2018, has undergone a few major changes. Section 18A is one of the sections that has a bearing on the procedure followed by the Trial Court and needs to be appreciated. Section 18A of the Act of 1989 came into effect on 20.08.2018. In the instant appeal, as already noticed, the alleged complaints were made between 29.04.2018 and 02.08.2018, and refer to the allegation made two years prior to the complaints. Respondent No. 2, by moving the application under section 156(3) of the CrPC invoked the jurisdiction of the Magistrate and therefore, the procedure and requirements of section 156(3) are attracted in examining the correctness of the order impugned. 14.1 Let us examine the discretion and jurisdiction of a Magistrate on the application filed under section 156(3), CrPC. Whether the Magistrate has to act and accept mechanically a complaint presented to him and direct registration of FIR or in his discretion, upon the examination of allegations order preliminary enquiry then proceed in the matter. The answer to the question centres around section 156(3) of the CrPC. The position in law is fairly well-settled and we advert to a few decisions on the point. In Priyanka Srivastava v. State of Uttar Pradesh, this Court observed that the Magistrate can look into the veracity of an application under section 156(3) because ordering inquiry requires the application of judicial mind and affidavit by the applicant and has held thus: “30. In our considered opinion, a stage has come in this country where Section 156(3) of the CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the jurisdiction of the Magistrate. That apart, in an appropriate case, the Ld. Magistrate would be well advised to verify the truth and also verify the veracity of the allegations. That apart, in an appropriate case, the Ld. Magistrate would be well advised to verify the truth and also 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…” 14.2 In Khalid Khan v. State of U.P., dealing with a converse situation, the High Court of Judicature of Allahabad observed that when the application under section 156(3) of the CrPC discloses the commission of a cognizable offence, then the concerned Magistrate must direct the registration of the FIR. Under the provisions of section 156(3) of the CrPC, a Judicial Magistrate has the discretion to direct a preliminary inquiry before ordering the registration of the FIR in cases where no cognizable offence is made out. Referring to Priyanka Srivastava (supra), the High Court highlighted the importance of verifying the veracity of allegations levelled in a complaint to keep in check the filing of applications under section 156(3) as a tool to harass people. Thus, from the above judgments, it is crystal clear when the application under section 156(3) of CrPC discloses a cognizable offence, then it is the duty of the concerned Magistrate to direct registration of the FIR, which is investigated by the investigation agency, in accordance with the law. Conversely, when the information received does not prima facie disclose the commission of a cognizable offence, but indicates the necessity for inquiry, in that case, the preliminary inquiry may be conducted in order to ascertain whether the offence complained is cognizable or not. The purpose of the preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information received reveals a cognizable offence or not. 14.3 We do not propose to multiply citations on the point and succinctly stated, the Magistrate, under section 156(3) of the CrPC, asks himself a question : whether the complaint, as presented, makes out a case for directing the registration of an FIR or calls for inquiry or report from the jurisdictional police station. The inner and outer limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the complaint, nature of allegations and offence set out by such a complaint. The inner and outer limit of the exercise of this jurisdiction is on a case-to-case basis dependent on the complaint, nature of allegations and offence set out by such a complaint. Therefore, it is fairly well-settled and axiomatic by the decisions rendered under section 156(3) of the CrPC that the Magistrate does not act mechanically and exercises his discretion judiciously by applying mind to the circumstances complained of and the offence alleged against the accused for taking one or the other step. The case on hand principally concerns deciding whether the discretion is invalidly exercised by the Magistrate while ordering a report from the SHO.”(Emphasis supplied) The Apex Court holds that the Magistrate while directing investigation under Section 156(3) of the Cr.P.C. should apply his judicious mind, take note of the fact whether the complaint that is presented makes out a case for directing investigation and only then direct such investigation under Section 156(3) of the Cr.P.C. Mechanical reference under Section 156(3), without application of mind, would render the very action unsustainable. 9. If the order impugned is considered on the touchstone of the elucidation of law by the Apex Court supra, it would fall foul of the same. The learned Magistrate while referring the matter for investigation should bear in mind that, once the reference under section 156(3) of Cr.P.C., is made it results in registration of a FIR automatically by the jurisdictional police to investigate into the matter. Therefore, the order of the learned Magistrate who would refer the matter for investigation should bear application of mind. The order quoted hereinabove is cryptic and bald as it is bereft of reasons, which leads to its unsustainability and a direction to the learned Magistrate to redo the exercise from the stage of referring the matter for investigation. 10. For the aforesaid reasons, the following: ORDER a. The Criminal Petition is allowed. b. The order dated 30.04.2024, passed by the XXXI Additional Chief Metropolitan Magistrate, Bengaluru, stands quashed. c. The matter is remitted back to the hands of the learned Magistrate to redo the exercise and pass necessary orders in accordance with law. d. The consequential registration of FIR in Crime No.157/2024, registered by the Rajagopala Nagar Police Station, Bengaluru, stands obliterated. Ordered accordingly.