Karnataka High Court
Sri.K.S.Nanjunda Gupta vs Smt. Anuradha Padiyar on 3 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 792, 2020 (4) AKR 628
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.386 OF 2016
BETWEEN
SRI K.S.NANJUNDA GUPTA
S/O K.SHANKRANARAYANA GUPTA,
AGED ABOUT 53 YEARS,
RESIDING AT NO.768,
36TH CROSS, 4TH 'T' BLOCK,
JAYANAGARA,
BANGALORE - 560 041.
...PETITIONER
(BY SRI M.SHARASS CHANDRA, ADV.,)
AND
1. SMT. ANURADHA PADIYAR
W/O N.M.PADIYAR,
AGED ABOUT 50 YEARS,
RESIDING AT NO.44, 19TH CROSS,
6TH BLOCK, JAYANAGARA,
BANGALORE - 560 082.
2. SRI N.M.PADIYAR @
MANMOHAN PADIYAR,
S/O N.P.PADIYAR,
AGED ABOUT 59 YEARS,
RESIDING AT NO.44, 19TH CROSS,
6TH BLOCK, JAYANAGARA,
BANGALORE - 560 074.
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3. SRI K.J.DHANANJAYA
S/O LATE JAYARAM,
AGED ABOUT 39 YEARS,
RESIDING AT NO.44, 19TH CROSS,
JAYANAGARA 7TH BLOCK,
BANGALORE - 560 074.
... RESPONDENTS
(BY SRI HEMANTH KUMAR D., ADV., FOR R1-R3)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CRIMINAL PROCEDURE CODE, PRAYING TO
SET ASIDE THE ORDER DATED 08.10.2015 IN
P.C.R.No.10492/2015 ON THE FILE OF II ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the petitioner/complainant under Section 397 of Cr.P.C being aggrieved by the order of dismissal of the complaint filed under Section 200 of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.') by the II Additional Chief Metropolitan Magistrate, Bengaluru dated 08.10.2015 (hereinafter referred to as 'Magistrate'). 3
2. Heard the arguments of learned counsel for the petitioner as well as the respondents.
3. The status of the parties before the Magistrate is retained for the sake of convenience.
4. The case of the petitioner is that previously he has given a written complaint to the Home Minister, Government of Karnataka. The same was referred to the Jayanagar Police and Jayanagar Police said to have issued an endorsement stating that the dispute between the parties is civil in nature. In the meanwhile, the petitioner also filed a written complaint to the Assistant Commissioner of Police, Thilaknagara Police Station. In turn, the said complaint has been registered by Thilaknagara Police in Crime No.174/2014 for the offence punishable under Section 420, 465, 468, 471, 506(B) read with Section 34 of Indian Penal Code which came to be quashed by this Court on the ground that the second complaint is not maintainable. The petitioner after receiving an endorsement dated 28.02.2014 issued by the 4 Jayanagara Police and he had filed a private complaint before the Magistrate under Section 200 of Cr.P.C and also prayed the Magistrate to refer the matter to the Police Station with a direction to register the FIR and to investigate the matter under Section 156(3) of Cr.P.C. The complaint came to be dismissed by the trial Court vide impugned order dated 08.10.2015 vide Annexure-A which is now challenged before this Court.
5. Learned counsel for the petitioner has contended that even though the respondents have cheated the petitioner by producing the forged documents in the name of BDA by obtaining Rs.95,00,000/- (Rupees Ninety Five Lakhs only), but the Police has given an endorsement stating that the dispute is civil in nature and even in spite of filing complaint before the Magistrate under Section 200 of Cr.P.C, the Magistrate without considering the complaint has held that it is not maintainable, which is not correct. If the complaint is not referred to the Police for registration, the Magistrate ought to have made an enquiry as per 5 Section 202 of Cr.P.C for taking cognizance for rejecting the complaint as not correct, therefore, prayed for setting aside the same.
6. Learned counsel for the respondents submits that since no summons has been issued to the respondents-accused as per Section 204 of Cr.P.C, therefore, there is no comment on the order passed by the Magistrate.
7. Upon hearing the arguments of the learned counsel for the parties and on perusal of the records, the point that arises for consideration is:
Whether the impugned order of dismissing the compliant filed under Section 200 of Cr.P.C threshold as not maintainable, is sustainable under the law?
8. On perusal of the record, it is an admitted fact that earlier the petitioner is said to be filed the complaint before Hon'ble Home Minister which came to be referred to the Jayanagara Police and subsequently, the petitioner has 6 filed one more complaint before the Assistant Commissioner of Police, Thilaknagara. The same was registered by the Thilaknagara Police in Crime No.174/2014. Later, the said FIR has been quashed by this Court in Crl.P.No.5326/2014 dated 18.06.2015 on the ground that the second complaint is not maintainable as the previous complaint is referred to the Jayanagara Police and an endorsement has been given and the petitioner has been permitted to take remedy in accordance with law on the complaint which was referred to the Jayanagara Police by the Ministry of Home Affairs. Admittedly, the petitioner has chosen to file a private complaint under Section 200 of Cr.P.C before the Magistrate. However, the prayer has been made by the learned counsel appearing for the petitioner-complainant requesting the Magistrate to refer the matter or complaint to the Police for registration of the FIR as per Section 156(3) of Cr.P.C which came to be dismissed by trial Court on the ground that the complaint under Section 200 is not at all maintainable. 7
9. The Magistrate while dismissing the complaint, referred the previous complaint lodged by the complainant to the Home Minister as well as second complaint to the Assistant Commissioner of Police, Thilaknagara Police Station and the endorsement was issued by the Jayanagara Police on the previous complaint or first complaint filed by the petitioner-complainant. But while rejecting the complaint, the trial Court has held that previously Jayanagara Police have given an endorsement that no grounds are made out for referring the matter for investigation. In my considered opinion, the order passed by the Magistrate rejecting the complaint on the ground that referring the matter to the Police is not correct. Instead of referring the matter, the Magistrate shall himself enquire by recording the sworn statement of the complaint and statement of the witnesses, if any and pass necessary order either to dismiss the complaint under Section 203 of Cr.P.C or to issue the process to the accused summoning to appear before the Magistrate. 8
10. For the sake of convenience, the provision of Section 202 of Cr.P.C is read as under:
"202.Postponement of issue of process:
(1) Any Magistrate, on receipt of a complaint of an offence which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction], postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
PROVIDED that no such direction for investigation shall be made -
(a) where it appears to the Magistrate
that the offence complained of is
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triable exclusively by the Court of
Session; or
(b) where the complaint has not been
made by a court, unless the
complainant and the witnesses
present (if any) have been
examined on oath under section
200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath:
PROVIDED that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examined them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer-
in-charge of a police station except the power to arrest without warrant."
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11. On bare reading of the Section 202(2) of Cr.P.C, it clearly shows that the Magistrate should make an inquiry under sub-Section (1) and shall take evidence of witnesses on oath after taking the statement of complaint on oath. Normally, when the complaint under Section 200 of Cr.P.C is filed before the Magistrate, the Magistrate has power to take cognizance by recording statement by himself or his witnesses or option available to the Magistrate for referring the complaint to the Police for investigation as per Section 156(3) of Cr.P.C. Since, the police have already registered the second complaint which was quashed by this Court and for the first complaint, the Jayanagara Police have already given an endorsement dated 28.02.2014 holding that the dispute is civil in nature and no cognizance case is made out for registering the FIR. Such being the case, the prayer of the petitioner referring the complaint to the Police is not required since the Police have already stated that though case is made out for enquiry by the Magistrate, the Magistrate to conduct an enquiry himself before taking cognizance and 11 issue process to the accused-respondents. Though the Magistrate has power to dismiss the complaint under Section 203 of Cr.P.C, but before dismissing the complaint the Magistrate shall made an enquiry as per Section 202 of Cr.P.C. If there is no case is made out, he can dismiss the complaint or he has to take cognizance as per the law and issue process under Section 204 of Cr.P.C. Therefore, the dismissal of the complaint without taking sworn statement of the complainant and statement of the witnesses, if any and without marking the document of the complaint, dismissing the complaint threshold on the ground of the maintainability is not correct. The Magistrate ought to have rejected for referring the complaint to the Police but rejecting the complaint without recording the sworn statement and the document is error under the law. Therefore, the order of Magistrate is liable to be set aside.
Accordingly, revision petition is allowed. The order of Magistrate dated 08.10.2015 in P.C.R.No.10492/2015 is hereby set aside. The Magistrate 12 is directed to follow the procedure under Sections 200 to 204 of Cr.P.C and if any case is made out in the complaint for cognizable offence, then the learned Magistrate shall proceed in accordance with law.
Sd/-
JUDGE GBB