Syed Khalandar Shah vs Muneera Begum and Others

A.N. Venugopal Gowda, J.—Respondents having presented PCR No. 52461/2013 and the XI Addl. CMM, Bengaluru, after directing registration of the complaint having referred the same to the Station House Officer, of Ashoknagar Police Station, under S. 156(3) of Cr.P.C. for investigation, this petition was filed to quash the said order.

Learned advocates appearing on both sides made submissions with regard to validity or otherwise of the aforesaid order and also with regard to merit or otherwise of the complaint presented before the Magistrate.

Number of documents have been produced along with this petition. The complainant, though a party to the same has not produced them in PCR No. 52461/2013.

Having heard the learned counsel on both sides and perused the petition and the documents sought to be produced by the parties, both in opposition and in support of the impugned order, I do not deem it appropriate to advert to any of the contentions urged by the learned advocates, on merit or otherwise of the complaint presented before the Magistrate, since the impugned order is liable to be set aside on a short ground, as was pointed out in guruduth prabhu and another v. Sri M.S. Krishna Bhat and Others, 1999 (2) KCCR 1564 and also in Anil Kumar and Others Vs. M.K. Aiyappa and Another, .

The impugned order dated 26.09.2013 being relevant, reads thus:

"Complainant present. Adv for complt present. Register the case. Complaint referred to SHO of Ashoknagar P.S. u/s. 156(3) for investigation - A/Report. Call on 29/1/14." 6. In Guruduth Prabhu''s case(supra), with regard to the power exercisable by the Magistrate under sub-section (3) of S. 156 Cr.P.C., it was held as follows:

"11. Sub-section (3) of Section 156 Cr.P.C., 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 offence which he is empowered under Section 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 in person or depute one of his prescribed deputies to proceed to the spot to investigate under Section 157(1)(a) when the offender is named and if the case is not of a serious nature the officer need proceed in person or depute his subordinate. Under Section 157(1)(b) if it appears to such Police officer that there is no sufficient ground for entering on an investigation he shall not investigate the case and the officer should inform the complainant under the prescribed manner. Thus, the Police Officer who is empowered to investigate on the information received by him 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 under Section 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 under Section 156(3) the discretion given to the Police officer under Section 157 is taken away. It is therefore very important that the Magistrate applies his mind and finds that the allegations made in the complaint filed under Section 200, Cr.P.C., before him discloses an offence. If every complaint filed under Section 200, Cr.P.C., is referred to the police under Section 156(3) without application of mind about the disclosure of an offence, there is every likelihood of unscrupulous complainants in order to harass the alleged accused named by them in their complaints making bald allegations just to see that the alleged accused are harassed by the police who have 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 Magistrate without applying his mind has blindly ordered the investigation under Section 156(3) and the said order is, therefore, without jurisdiction. We have also found in this case that the complaints filed by the complainants is manifestly tainted with malafides and instituted maliciously with an ulterior motive for wreaking vengeance on the accused with a view to spike them due to private and personal grudge. When such is the circumstance which is disclosed from the materials on record, it is not only empowers this Court to interfere in the interest of justice, but it is the duty of this Court to nip such an investigation in the bud. The learned single Judge was, therefore, right in allowing the writ petitions and quashing the investigation in each one of the complaint referred by the Magistrate to the Police. We find that there is no merit in these writ appeals. These writ appeals are accordingly dismissed with cost of Rs. 5000-00 in each of the writ appeals."

(emphasis is supplied)

In Anil Kumar''s case(supra), as to the role of the Magistrate while exercising the power under S. 156(3) of Cr.P.C., it has been held as follows:

"8. We may first examine whether the Magistrate, while exercising his powers under Section 156(3) Cr.P.C., could act in a mechanical or casual manner and go on with the complaint after getting the report. The scope of the above mentioned provision came up for consideration before this Court in several cases. This Court in

Maksud Saiyed Vs. State of Gujarat and Others, examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) Cr.P.C., should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

(emphasis is supplied)

The impugned order, when examined, makes it clear that the Magistrate without any application of mind, mechanically directed the investigation by the police. As there is total lack of application of mind and the record of the complaint has not even been perused much less the submissions of the complainant has been heard, there being arbitrariness and illegality, the impugned order being vitiated calls for interference.

In the result, the petition is allowed and the impugned order is set aside. As a consequence, the Magistrate shall keeping in view the observations made supra pass order.

Any investigation already conducted, in pursuance of the impugned order, shall be treated as non-est.