Karnataka High Court
Shri Eshwar Rao Mahadic G vs Vijendra Rao V on 1 February, 2023
Author: K.Natarajan
Bench: K.Natarajan
-1-
CRL.P No. 790 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO. 790 OF 2023
BETWEEN:
1. SHRI ESHWAR RAO MAHADIC G
S/O LATE D GOVINDA RAO MAHADIC
AGED ABOUT 87 YEARS
RESIDING AT NO.1
ASHWATHNAGAR
RMV EXTENSION 2ND STAGE
GEDDALAHALLI
BANGALORE-560094.
...PETITIONER
(BY SRI. RAJU C N.,ADVOCATE)
AND:
1. VIJENDRA RAO V
S/O VENKOBA RAO
AGED ABOUT 48 YEARS
Digitally signed by NO.109, 2/3, 7TH CROSS, 6TH MAIN
BHAVANI BAI G SRIRRAMA NAGARA, ITTAMADU
Location: High NEAR PRESIDENCY SCHOOL
Court of Karnataka
BANASHANKARI 3RD STAGE
BENGALURU-560085
ALSO RESIDING AT
DR RAO MEDICAL CENTER
RTO OFFICE BANGALORE
531, 2ND MAIN ROAD
OPPOSITE BDA COMPLEX
INDIRANAGAR 2ND STAGE
HOYSALA NAGAR INDIRANAGAR
BENGALURU-560038.
...RESPONDENT
(VIDE OREDER DATED 01.02.2023,
NOTICE TO R1 DISPENSED WITH AND R1 & R2 ARE DELETED)
-2-
CRL.P No. 790 of 2023
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED
31.12.2022 PASSED IN C.C.NO.473/2022 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND J.M.F.C DEVANAHALLI FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 420, 406, 423, 468,
465, 469, 384, 120B READ WITH SECTION 34 OF IPC BY
ALLOWING THIS PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Looking to the facts and circumstances of the case, issuing notice to respondent No.1 is dispensed with. The petitioner is directed to delete the names of respondent Nos.2 and 3 as they are proposed accused in the trial court.
2. This petition filed by the petitioner/complainant under section 482 of Cr.P.C for setting aside the order of the Magistrate dated 31.12.2022 for refusing to refer the matter to the police for investigation under section 156 of Cr.P.C, on that ground there is no compliance of the order under Section 154 of Cr.P.C.
3. Heard the arguments of learned counsel for petitioner.
4. Learned counsel for the petitioner submits the petitioner is complainant, had approached the police and -3- CRL.P No. 790 of 2023 filed the complaint, where the police have issued the endorsement. Thereafter, one more complaint filed to the higher officer i.e., Commissioner of Police on 09.05.2022, they also have not taken any action. Therefore, he forced to file complaint under section 200 of Cr.P.C and requested the Court to refer the matter to the police under section 156 (3) of Cr.P.C but the learned Magistrate has refused to refer the complaint to the police, on the ground that the petitioner not furnished copy of the complaint or endorsement given by the jurisdictional police and not followed the guidelines issued by the Hon'ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287.
5. Learned counsel for the petitioner submits the order under challenge is not correct, the petitioner has produced all the documents, including the copy of the complaint, endorsement issued by the Bagaluru police and the copy of the complaint filed to the Commissioner of police is also furnished and the same was referred in the presentation form or index of the complaint. There are 38 documents produced by the petitioner along with the complaint, such -4- CRL.P No. 790 of 2023 being the case, the order is not sustainable, hence prayed for quashing the same.
6. Having heard the arguments, perused the record, especially the order of the learned Magistrate where it is referred as under:
"On gone through the complaint averments as well as documents produced by the complainant, it is not disclosed affidavit as contemplated in the Hon'ble Apex court in Priyanka Srivasta and another Vs State of Uttar Pradesh which was reported 2015(6) SCC 287., further the complainant has sought reference u/s 156(3) of Cr.P.C.
Further, complainant has not made any effort to lodge complaint before jurisdictional police U/s 154 of Cr.P.C in this regard the complainant has not furnished copy of the complaint or endorsement given by the jurisdictional police. Therefore, complainant has not followed guidelines of the Hon'ble apex court as rendered in above referred case. Therefore, there is no grounds to refer the matter to the jurisdictional police by invoking power U/s 156(3) of Cr.P.C.
Hence, cognizance taken.
Complainant is directed to proceed the case by adducing sworn statement as private complaint."
In my considerate opinion, the order of the Magistrate holding that there is no complaint or endorsement of the police and not followed the guidelines of the Hon'ble -5- CRL.P No. 790 of 2023 Supreme Court is incorrect, since the very complaint accompanying with the documents where the document at Sl.No.9 reveals the complaint filed to the police dated 21.10.2021 has been produced at Anx.G1, the endorsement of police is at Sl.No.10 as Anx.G2 and the complaint to the police Commissioner dated 09.05.2022 at Sl.No.11 as per Anx.H have been produced and affidavit also produced for supporting the complaint as required under the guidelines of Hon'ble Supreme Court in PRIYANKA SRIVASTAVA AND ANOTHER vs. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287. Hence, these aspects were not properly verified by the trial court and passed the impugned order which is liable to be set aside. It is needless to say the Magistrate cannot be compelled to refer the matter for complaint to the police under section 156 (3) of Cr.P.C which is an option to the learned Magistrate either to refer the matter to the police for investigation under section 156 (3) of Cr.P.C or he can post the matter for recording the sworn statement by making enquiry himself by postponing issuing of process as per Section 202 of Cr.P.C. Such being the case, the complainant cannot compel to refer their matter. It is the discretionary -6- CRL.P No. 790 of 2023 power of the Magistrate to refer the matter to the police or he shall enquire the same to take cognizance. However, the order of the Magistrate reveals, he has not properly verified the documents especially the complaint, endorsement and complaint to the commissioner of police and jumped to the wrong conclusion, while passing the impugned order. Therefore, the order passed by the trial court requires to be set aside.
Accordingly, the petition is allowed.
The order of the Magistrate in CC.No.473/2022 dated 31.12.2022 on the file of Prl.Divil Judge and JMFC, Devanahalli is hereby set aside.
The Magistrate is directed to consider the matter a fresh for either to refer the same to the police under section 156 (3) of Cr.P.C or he shall take cognizance by recording the sworn statement by making enquiry under section 202 of Cr.p.C in accordance with law.
Sd/-
JUDGE AKV