Karnataka High Court
Y N Ramachandra Rao vs M/S Cci Ltd A Co Incorporated Under The ... on 21 June, 2010
Equivalent citations: 2011 CRI. L. J. 1073, 2011 (1) AIR KANT HCR 74, (2012) 1 CRIMES 318, (2011) 4 KANT LJ 277
IN Tm: HIGH COURT OF KARNATAKA AT BANGALORE
Dated {his the 2191- day of Jmae, 2010 V
BEFORE Q % % T
THE HONBLE MR. JUSTECE ARA%1_,1 _ "
CRIMINAL PETITION N0s.721, 9222 ,;{:ié1 'V
BETWEEN A by % V
1. Y N Ramghandra Rao,
S / 0.1?' Narayana Réuaxi 5() 'yea'rsj7
2. Y N Balakrishna Rae) V ;
S/0.? N ara,y£--Lr1a R210; yeeirs. AV " " "
Both I'E:SiC1iI1!{:,"4"E[T.'4}:A3§AL;'L_I1_;_£'3:_£i'I'171__ z
Krishna I~io1ise,.;'f\1».ivékorii';-ff: x J '
Thenka Y.e.17m"a}., V' 'LJ'c1';2;1,__1 pi _1.i'}::" V
District,' 7'; ' _ Petitioners are
common in all the
petitions
{By Sri, S G }31'1':<_;lg.§EV:i\fVi:"L~l.";1. A.dv. "i.s common in all the petitions)
"1." M,£s;.£:C%:V%'T1mited,
. Ct>11éLjpa':=1y incorporatecl u1'1cie1* the
"-«.,_C0,mpai?1ie5s Act, The Fac1'<3'1_"y Road,
M3.i1ipaim57('3 104, UdupiTah.1k,
. _ Repfesentctci by Mrs.Sushee121
V V *Chaz1drakLu'nar, w/ 0.Char1d1*e1kumar.
-40 years, Kalpana AHI1€X'l£I'{?,
Upendra Bzmgh. Udupi M 576 10}.
ff"
The State of Karnataka,
By Manipai P S.
(amerzed as per order
dtd. 4.3. 10}
[By Sri S Mahesh 8: C0,, Adv. for R1 , M
Sri Vljaykumaz' Majage, HCGP ltd' Riiare 'COII1II1,¢:C')RIb;._jr,1vvE!{11
the Petitions) ' '
AND:
1.
dtd.4.3. 10)' _
Chitrakala Trade 1n\restr:;e'mf,_ - _»
and BL1sincss Finance I;1in1ii'e<agi.V
Syndicate E~"iouse,"u _ 1. g AA "
ManipaE--576 104, UdupiV"Fa'1u}£,
Represented by N{'f'S;'Sl:iSh'€.€'1El 1' . " 1
Chandra_k1fi::.1j_ar, W / Gha'n.d'1*é1l{1.;_.r.§1ar.
40 yea 1<s',- 4K;i;_lpar1a.'Ar111eXji;1:5e.
Upendra _I32.3. ugh. . Udizpi 101.
The _Staiev.*c;)£.._Karnaiiaka, j
By,Ma_mpa1'
(arrlewned as=.pe"r.1orde1" "
V Respondents in
Cxfl' N0.722/2010 investments ' Limit,eds.,'Sy:1dieate House.
""Manipa1--57(_5 104, Udt.1p1"i'a_11.1k, Repfesentcéd by Mrs.Susheela " 4_Chéu1d1"ak1.:I'11ar, W/0.Chanclrakumar, 40 years. Kaipana Armexure.
1' 'Upendra Bzzzmgh, Udupi - 576 101. .-.r'*""
i3{esp0r1dem:_s14' " V.
C1{P No.721-;"2OA10.7j= ' 1.
Lu
2. The State of Karnataka.
By Manipai P S.
(amened as per order
dtd.4. 3. 10) _jRespo1f1_r§ie'ht.§~ L' % C1'lP No.'?.2.3/2Q}-Oi . ' These C1'1.Ps are filed U / S C'_1*.PV.4C';--,I.'praying., to quash the entire proceedings in PC_Njos;_1", .2'---ahd~~.,3 of f 2010 respectively in the Court "of 'the Chief. .Ji.1d1_C1a1~.. Magistrate and Civil Judge {S1"..4_Dr1.]V,"Udupi i;rCiVi1.vding";the a order dated 8.1.2010 These C1*1.Ps com--iir1g 011it*o1?..aciii"i»issiozi this.-'day, the Court passed the 'i'o11ow_iri;;: ' ~ V The ..t.hree orders dated 8.1.2010 Nos.1. 2 and 3 of 2010 Magistrate [Sr.Dn.}, Udupi to as "CJM" for short) agairgst the pe'tiiV_ioher'Nos.1 and 2 herein referring the eorifipiaiints to the PS}, Manipal PS under Cr.PC for investigation is challenged in V V _ these pe.titIo'hs under Section 482 of Cr.PC. Though the ._(::o::1p41airiants in the said three cases are different, the _ acctdusied are the same. Further. the offences alleged in it "the respective complaints agclinst the revision ,...£""-"'*"""
2 V, atrtised.
petitioners -- accused are aiso same. The nature of three impugned orders passed by the teamed same. Therefore. these three criminal p-etitivonse-it V' disposed of by this common order.
2. Though these erimiriai peétitions are admission, having regard 't'o:;'short it law invoived therein and of the case, they are and the arguments Counsel for the Mahesh, the learned Couljsél complainant and Sri Vijayk1,ttnar High Court Government Pie»a.tiei=,reoresentihg the 2%' respondent -- State are .t:A Pe'ruVsed an the three impugned orders, the H a\?e1_jn1e'rits__in;t'.he respective complaints in the said cases and othierrraatreriai placed on record by the petitioners ~» Stated in brief, the facts leading to the present petitions are as under:
:____("\.a-"\,«-'
4.
other ' T he respective complaints in the said three cases before the learned CJM filed their respective complaints under Section 200 Cr.PC H petitioner Nos.1 and 2 alleging ---that ' committed the offences unde.r 406,! 46'? and 471 read with Section 3.4LIiPC... complaints were preserited beforde. the on 8.1.2010. He pass-e'ci~-.etheV' ;mpug:iéd'''i'orders '' referring the respective.--eoh2pi'a.ir1ts'i1nderc.:§Section 156(3) oi-.Pc to the :;P;s'i';.} ii\/ianipal PS for investigation. 'fh.e eorrecitnesvsd ' V .. the respective impugned"ofde1*s_ passed. t1r1_'d.er__:Section 156(3) of Cr.PCi "by petitioners ~«-» accused W1': o'i'areij;coriii:3'i--ori-- thes'"e repetitions. A1AI'th'eMMth;<_ee orders are similar to each and o'r1c.,Voftheri'1. reads as under:
"ORDER __ Cbntptairiartt is present. Counsel for the V compittihant' submitted that the above is case cezjrtrzected to forgery. Therefore he requested to ' complaint of Police, V refer the Superirtteriderit to Deputy Udupi for trivestigatrton.
It is well established Principle of law that in a Private Complaint it can not be ,__.:--/~« referred to officer above the rank of P.S.I. Therefore. Refer the complaint to P.S.I., Manipal RS. U/Sec. I56[3} of Cr.P.C. jor the,'*.._ investigation and to submit the report. .. Sd/ ~ Prl.Civil Judge (sr.on';g_u& V' l C.J.M,..U_tiup--t. " 9 9- A >
5. Referring to the above tmpu:g'j:;neif1_Atorde1'~_aI1ti strong reliance on the decisiafijg-..§€pdrtéQ (1) 1999(3) KLD .395 VA(-D!§:)'v-.*"--~..1999l" 3909 (Guruduth Prabht; "and.'_oth.er3._Vps4«M S Krishna Bhat and others}; 2 . ..
{ii} 2904-é«'a1R iieixas ~{jf5'R Venugopal -« vs~ S t.Kri.;§nr1a.Vand_othe_rsj arid---w~"
u_'("M'aksud Saiyed --vs-- State of G1} arat «rjmat others}, ' ~ Sr)': 8 G Bhagwfar1,_ the counsel for the petitioners
--- coh't:enVel_s'«.'that while passing the impugned 'orclers-v._tmtler'vSection 156(3) CIZPC, the 'Magistrate has to.a}f)ply to the contents of the complaint for satiej.yJtr"g.gVhirr1se1f, whether they disclose any cognizable A ofi"e'nce' and therefore all the impugned orders, which Véire passed by the learned CJM mechanically without
5..-.('\--'"\.
applying his mind to the allegations therein, deserve to be set aside. He further contends that there is no indication in any of the impugned orders'; that:l"before_' referring the complaint to the police undler V' 156(3) Cr.PC for investigation, i',h'emlearne'ld it his mind to the facts alleged in tbellsaid order to form an opinion that"'i«t:l"i"e said'*--a.llega_:tions'rriake out, prima facie. offencelvagainst the accused therein and ther-eforellall orders are liable to aside.
6. Iii fix-st.of decisions, relied upon by the learned coVunseVl'.for¢'t.he petitioners ~ accused i.e. in
9. p_ the Prabhu and others vs-- M S Krishna eh-at c1m;!'otl'iers (1999(3) KLD 305 (DB) = 1999 Cri.LJ 39.09, has observed as under:
it fjijirnlinal P.C. (2 of 1974), Ss.156{3}. 432 - Irivestigation -- Powers of Magistrate ~ Compiaint for offence under 3187. Penal Code we Averments in complaint cryptic and ' not disclosing alleged offence -- Order of l\/iagistratie directing investigation under S. 156(3) without applying his niind allegations made in complaint. - ls ll"
jurisdiction -- High Court either < or under Art. 226 of Constitigitionfplejrripoiisreariedtw ' to quash investigation. V Para 10..... "Sub--sectioIi'li'{:1} of Section confers on the police iii§resti'icted po'Wer"t0 investigate a --i2iri'thout the order of a.'.Magi;=;-t1'ate' formal first ,f'l--'he....,.fpolice are eiititlécl _:-top. ,l.:A.-clognizable offence ei_ther_A u1_--icler Section 154 or oijtheirloixrn their own knowledge or fr0tIh1= Qth_er._srelliable information. This ..«§;:sli<:£t'uiory" " to investigate cognizable 0j7;éItf.:l:(L"'(:ClT1I1OI he interfered with or controlled including the High Court. it is the Court to take or not to take actioiiwhen the police prefer a chargesheet it after investigation. But the Court's function Ecioes not begin until the chargesheet is filed.
Under Subsection (2) police can investigate C-_____€"'~/£""
any offene.e taking the matter to be a __ cognizabie offence although uitirnate1_V.t._'4"r._ charges are filed for a non--cognizab1e offence ' "
since while investigating a cogniz__a'o1ea.. offence. the poiice are not "debarr'edtiiiromix' investigating any nonwcognizable '»o_ffer"1'ce"
arising out of the sameitfacts and"'inc1t:dirrig: it in the report to be tV1""i%?_3'I1'i'--.'§-1I1ii;'€I'"V Section 173, P;CQ.*t_:'Stib¢sectio'nA «{3} empowers the and direct the police to V in\re.stigate a __co offence. But restriction .:on"'th.eiiMagistrate before to investigate tinder the-- Magistrate should foyni any the complaint filed by thecomplainant."'--~.h'ei0re him discloses a ; 'eogniZa'Qie' offenceywhen the allegation made it E'in---ethepcornpiaizrt does not disclose cognizable o.f_fex1c.e}*the Magistrate has no jurisdiction to %. oi*d'e.r police investigation under Subsection (3,). the present case. the learned ~.Niagistrate without applying his mind had A' directed an investigation by the police. Such an order which is passed without appiication of mind is ciearly an order without jurisdiction. Therefore, the order passed ..~..:"*"-~'* directing the police to investigate under Sub- section (3) of Section 156. CI'. P.C. passed without jurisdiction is liable to be by this Court. either under Section--*..':ii82.;:VV' Cr.P.C, or under A1'ticle.....226 Constitution of India. We, fi}:1d._:' materials on record, the learned Magistifate has not at all app1ied:"'~..11is "m_ina_ '!_)eVfoi-Ve'"
directing police investigation' =1»1nde'1-~ .s¢ction 156(3), Cr. no If'..'£:he 1l_lIagis'tr.ate"'had afipiied his mind. the Magist_rat'e:i found that no znaclo it out even if thg. ., _a11eg:ati_o:t3"' {hide in the compiairitV;»":are" 'a.ece_pi:ed; We' have already c_?onie_A none of the compiairits ' ., the complainants disclose v.aVV'co,Vgnizauble offence alleged under ...}gSe'ction IPC. On this count alone the given by the Magistrate is liable to 'V V = .
Pa:9a'v"i1. Sub-section (3) of Section 156 Cr. I-'£3. empowers Magistrate to order an investigation. Under Section 157(1), Cr. P.C. an officer in charge of a Police Station having reason to suspect the commission of an .-.....§.""'~*'» there is no question of his deciding not to investigate. Thus. by an order of the Magistrate u/ S. 156(3) the discretion given.'iD.iV'V' the Police Officer u/S. 157 is taken away. '7' is therefore very important th'atv-..::the.:« Magistrate applies his miniti the allegations made in the";coznpIairi't._A.fllec1 "
under Section 200, 1>.c',~. before"
disclose an offence. If cornplaint: fiied under Section 2.00., Cr..P'."C,e ir'eferreid"to the police under without application: of rnind._abouAt;,ptIie. disclosure of an offe_nce;,.r:i:.'the.re V.V_.1_i:l}ie1ihood of unscr'npnlons"3cor1iplainVants._VinV_order to harass them in their allegations just to seetilat the A:_al1eged~«accused are harassed by the police who hawie no other go except to inirestigiatepvas ordered by the Magistrate. it is mandatory for the Magistrate ' mind to the allegations made in t.he"iei:ofr1p1aint and in only cases which it ..dEsciVose an offence, the Magistrate gets V * jtirisdietion to order an investigation by the poiice if he does not take cognizance of the offence. In the present case, the learned .....<"*-'~
7. Magistiate without appiying his mind has blindly ordered the investigation under Section 156(3) and the said orderAV...._i_;,",. therefore, without. jurisdiction".
[Emphasis supplied 'hy"In.g]"..A .; i. In second of the above said decisions in.".the Caseof P R Venugopal --vs-- S M KrisItfir;tV"i1'eporte.d --- Kant. H.C.R. 43: The _ g the Cine 'Star'.
' coin plaint. Vvwtdhe tinder:
- compiainan"t.¢'."»re " presented a compiaiint«:.ntnVder'~¢Ss:etion against the V. to offence under Section 120'-ti..i§::aci'*t;hth--isectitah-ezi IPC aiieging that the " tonspired and actualiy partio_'ipated_ tthe.»e.ioonspiraCy for the release of d d On the presentation of the learned Additional Chief "t.M.¢tt'o'poiit:an Magistrate, Baiigalore, referred the coagttant u/S 156(3) Cr.PC to the High Ground F°oii(':~e" for investigation and report in pursuance of V the memo fiied by the eornpiainant 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 (P did not disclose any cognizable offence. After the said report was submitted. the learned issued notice to the complainant. He ,appeare~d"g. and filed his objections with a prayer V' report of the police and to House Officer to investigate :the' rnatter Section 155(2) CIHPC. The learned £\C1MM:re]eCted the said objections and"dismissedthe';corniplaint. Aggrieved by the.order**'0f"rdisrnissai--of title said complaint, the coniplainantuizadiiapproached this Court. _ ' On the abo\re§'--.fa(§itds_,._~_ at para 22 of its order as nndwer: 17> Pia:-a 22: -- clear that even for for investigation, the Court apply its mind to find out or there is sufficient ground for Therefore. it has to be examined on.'t:hleA.t:;ba_sis of the allegations contained in t ,. complaint, whether there are sufficient rnate1'ia1s to proceed with and to make a reference for investigation as prayed for by ....g"=-~--~ the Complainant under Section 155(3) . Cr.PC."" ' "
8. In third of the above said decisions i.e., M of Maksud Saiyed ~vs-- State ofr..Gujar;1t"'ar:td,foithcrsiu (2008) 5 SCC 668, the Hon'ble':.&S';'ipreInc_i observed at para No. 13 of itSfji1dgmci'1tVas Para 13: "Whereajurisdiction'Via_exerciaed..~on a complaint peti'l'i1Gft~fi.I--£t(1i';«,iI1 of Section 156(3) or section_.2.do~.or cagiefi 7c;-iminaa Procedure','gythe :=._Magiétrat'é--i.s_.___V:i'e(t1uired to apply" 'Code does not ;,p.rov:i:3.i:on' Vpatitaching vicarious }:'iabi_1ifyV'o':1-ti:1'e ..o_f.the Managing Director oritheD'ircC;toré'*~oi"«t1'ie Company when the _aCcufS'edV' is-_ it3i'e'~~--"iiVCompany. The learned 1\{I_agi§trate'.faii¢d to pose unto himself the question viz. as to whether the petition, even if given face value and to be correct in its entirety, would zleadhvto the conclusion that the respondents herein were personally liable for any offence.
The Bank is a body corporate. Vicarious liabiiity of the Managing Director and Director wouid arise provided any provision ("IVS/I lo exists in that behalf in the statute. Statutes H indisputably must: contain provision fixing} such vicarious liabilities. Even for the purpose. it is obligatory on the part the: it complainant to make requisite a.'=.lega'tions"
which would attract. :'pro\_}i'sionsif-..__ constituting Vicarious eliabilityf ._ [Emphasis A p
9. Insofar as the" respective complaints in these vAA.'¢%)l__r'j.cerned, when questioned allegations in each Of any cognizable oflence M» accused?" Sri S G Bhagaxangtlhe for the petitioners -- accused, fai1"l'y.,_conce'des that they do constitute one or them .ofv..th.e cognizable offences alleged against the "petitioVn.eVi_*s_,_ conceding so, he further contends that ti5Le1"c'."" is no indication in any of the impugned ordersvfllmade by the learned CJM that he applied his Aiinind to the allegations in the respective complaints and it therefore the irnpugned orders passed by him m_rv-----
mechanically under Section 166(3) Cr.PC referring the respective coriiplaiiits to the police for investigation cannot be sustained in law.
10. On careful reading of the facts in V' said three decisions relied uponibjf the 1'ea1jrted'.counsel--V& for the petitioners ~ accused. it isclear thatlthis as well as the H0n'ble S'upre'me"-C0urt;----aVftergco1<1sVidering V the allegations in the 'complaint the respective cases, arrived at the conclusionl that'lltsho_s.e"ailegations did not disclose a1'1y;;:ogrrizab:l_e offe:nce,"'n.iucmhjless, the offences alleged therein and therefore it was held in all decisions that the learned applied his mind to the allegations " and hence the impugned orders passed Hui£.:ire1--h's'é'¢;:a¢l%:i'K156(3) CIZPC were without jurisdiction. C H Butt. present cases. it is not in dispute that the V' " aveitinems made by the respective complainants in their respective complaints do make out prima facie case for one or the other eognizable offence against the (___Cs../~...\___.,, quite necessary that before passing an order u/S. 156(3) Cr.PC referring the compiaint to the p.olioei~.for investigation, the Magistrate should the facts alleged in the eomplai_r_it and see "*éi1_'iet1*ie'r.V the " "
said facts disclose any cogi.1iza.hle[_"offence" forms an opinion that said V facts 'd_1'selose af' cognizable offence, then only.VVV:he_ sha11p'rocAeeAcl to pass an order 1.1/S. 156(3) 4 V
12. It is periirient it is laid down in all the=:'thr'ee to supra that before passing -- Section 156(3) Cr.PC. the Magistrate mind to the allegations in the_§con1plaint-. _and that such an order should indicate apvplicatoion"of his mind by the Magistrate, in none of the H it is laid down as to what the learned Ma"gist--rat'e"i has to observe in his order passed under V "Section 156(3) Cr.PC, for referring the complaint to the lddpolice, in order to indicate that he applied his mind to it "the facts alleged in the complaint. In Guruduth C'-§'\o~"\/' '-4-.-
Pra'ohu's case (1999 Cri.LJ 3909} referred to supra, Division Bench of this Court: has observed as unc1_er~:.
"We find jrom the materials on record." the':
learned Magistrate has not __at~a_ll mind before directing poiice:_-Ariniiesttgationif--..__ under Section 156(3), _ had applied his mind, it have found that 'no o'f]'enceVA..'§is made out evens)! .enti.%_e; a'Eiega'tcio_ns made in the coniplairit are 1 _ Further, in ten», €M:aks4tzjdV"'Saiyed (2008{5) sec 668} revfe*rr€:d"r5tog'ieapra,'--._vI~ior1--'-b1.e"% Supreme Court has quotedhwith __'oi:)servations made by the High C0urt'*-in the ~impug'tied order, and the same reads _____ ' to the Court that the learned Magistrai;e has not applied his minddfirhile passing the order under Section 156(3) of the Criminal} procedure Code Viihfdirecting the police to investigate in the Himatter. T he impugned order, on the face of ¢--on-{.fl«V.~"""""
.3 ,3 it, reveals that he has not gone through then» corrxpiaint."
It appears from the above observations V"
decisions that 'whether the Ma_c;isim.t'e mind to the jkzctsi alleged in the of itiot7 is found only on reading V.a'v.Ie1*me1f1ts'-,wi1'iilithe V compiaint. This isvwhat the Supi*e1ne Court and this Court have done;_in the sai.di"cases_.
13. Applicat:'ion:ibf alleged in the complaint has to be found only on in the complaint.
Since that the ailegations in respeotixre cornpla'ints'in the instant cases do disclose some eognizgable offences against the revision Apetitioine»i5"s,..vV: it'vv'~"e,an11ot: be said, even following the _ obse'Wat.io'r1s:"l made l by this Court and the Hon'ble _.Sup:reme".Court. in [he above said decisions, that the Magistrate did not apply his mind to the ~ V' allegations made in the respective complaints. 4:"-'---~C'_~"-'"'-*""' l\J '-.a..z
14. In order to iridicate that he applied his mind to the facts alleged in the complaint, the Magistrate co.:i1d~«.ha_ye stated in the impugned orders passed un'derA";3éfe--tionli-- 156(3) Cr.PC as "perused. i'i1e..__allegatiori.$» v'.'ir14_'_}jti'zeuu complaint" or "allegations in "ijhe7._'_A cognizable offence" or the -aiiegations irilliljie':..;C"0rnpjlaint make out cognizable offerieeidrjeqairing liiwestigjation by the police" etc. If anyuaoi is made in an order under, can make oilt from the Magistrate applied his complaint'. If such statenieIit'*is Magistrate in his order under Section 1565.3) there would be no scope for the reVs'pon'tie1it, -- aceiised, as in the instant case, to 'Vthe.Veorreet.ness of such order on the ground that t_he.Vli~earned Magistrate passed it mechanically applying his mind to the facts alleged in the 'Complaint. in order to avoid such a situation. it would " advisable that the Magistrate. while passing an order ,,-mC"""*-"---* under Section 156(3) Cr.PC shall make some observation therein as stated above indicating»th'a_t7-lie applied his mind to the facts alleged in and formed his opinion that the said__a11eg"ati0rir's 'dist;-lose it "
a cognizable offence and hence."t11ef_"eGn1p}ain.t to be referred to the policeferirivestigationy a's:'pr0vided"~ V under Section 156(3)
15. In View of my i"oreg'0i'r1g'cjisgussibij. I am of the Considered opinioln thatgtIi.0u«gI1.d".thVe' learned Magistrate has not any of the impugned orders.__indi::eiti':.;g.__:that~.he--.applied his mind to the facts alleged inrathe res15~e'etiT\'fe.ideemplaints. since it is not in diSp_"§titu€i't11at tie1edsV11eg:atio'ns in the respective complaints .,r_na1§e..g;uDt'~-.Qne or the other of the cognizable offence iialiegeddadgainst'these petitioners -- accused. I do not find anya" reiéissnd to interfere with the impugned orders. Piensge. these three Criminal Petitions are hereby iiisrnissed as being devoid of merit. No order as to costs. 'u--.{'"~'5"\..---"'* I-J L):
The Registrar Judicial 8112111 send a copy of this crder to all the learned Principal District and Judges in the State with a direction to c1rg:§,--11g1:t:'e-'we-'..,.T . same am011gst all the Magistrates~~worki19i§" ~i.11 respective unit's.
Bkm.