Vinod vs State By K.G. Halli Police Station & Others

H.P. Sandesh, J

This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the order dated 07.03.2020 passed by the XI ACMM, Bengaluru in

P.C.R.No.51773/2017 for the offences punishable under Sections 420, 422 and 506 of IPC.

The factual matrix of the case is that respondent No.2 had filed a private complaint before the learned Magistrate invoking Section 200 of Cr.P.C.

and prayed the Court to refer the matter under Section 156(3) of Cr.P.C. for the offences punishable under Sections 420, 422 and 506 of IPC. The

learned Magistrate after receiving the complaint passed the following order:

“Complainant is present. Counsel for complainant is present and advanced argument on complaint. Perused complaint and documents

produced in support of complaint. At this stage complaint needs to be investigated. Hence complaint is referred to PI of K.G. Halli Police

Station for investigation and report under Section 156(3) of Cr.P.C.â€​

Hence, the present petition is filed praying this Court to set aside the said order.

The learned counsel for the petitioner would vehemently contend that the learned Magistrate has not applied his judicious mind while referring the

matter under Section 156(3) of Cr.P.C., except making the general observation that perused the complaint and documents produced in support of

complaint. Whether the complaint averments discloses the cognizable offences, which have been invoked, has not been stated in the order. The

learned counsel would submit that the complaint is filed against this petitioner with regard to non-payment of the amount towards the supply of edible

oil and it is purely a civil dispute between the parties. The complaint does not disclose any ingredients of the offence of invoking of Section 420 of IPC

and hence there cannot be any proceedings against the petitioner.

Per contra, the learned counsel for respondent No.2 would contend that the learned Magistrate while passing the order and referring the matter

under Section 156(3) of Cr.P.C. has taken note of the complaint averments and documents and passed the pre-cognizance order invoking Section

156(3) of Cr.P.C. and hence this Court cannot find fault with the order of the Trial Court. The learned counsel would contend that referring the matter

under Section 156(3) of Cr.P.C. is not taking of any cognizance and it is only referring the matter for investigation and the Investigating Officer has to

investigate the matter and file the final report. The Court has got the power under Section 173(8) of Cr.P.C. to order for further investigation, if the

investigation has not been done properly by the Investigating Officer. Hence, prays this Court to dismiss the petition.

Having heard the learned counsel for the petitioner and the learned counsel for respondent No.2, this Court has to peruse the order passed by the

learned Magistrate, which is extracted hereinabove. It discloses that the learned Magistrate referred the matter under Section 156(3) of Cr.P.C. and

while referring the matter under Section 156(3) of Cr.P.C., a reference was made that he has perused the complaint and the documents produced in

support of the complaint and it requires investigation. When the complaint is filed under Section 200 of Cr.P.C., the learned Magistrate has to either

proceed with the matter by taking the cognizance or has to refer the matter under Section 156(3) of Cr.P.C. On perusal of the prayer, it is clear that

reference is sought by the complainant. The question before the Court is whether the learned Magistrate has applied his judicious mind or

mechanically passed the order. On perusal of the order, the learned Magistrate has made an observation that perused the complaint and documents

and forms an opinion that the complaint needs to be investigated. The learned Magistrate has not applied his judicious mind whether the contents of

the complaint constitutes cognizable offence when the cognizable offence has been invoked in the complaint and no such observations is made in the

order and instead of, mechanically passed the order that the matter requires to be investigated. The Apex Court in the judgment in the case of

MAKSUD SAIYED V. STATE OF GUJARAT AND OTHERS reported in (2008) 5 SCC 668 has held that the learned Magistrate has to apply his

mind while referring the matter under Section 156(3) of Cr.P.C. and the same has not been done in the present case.

The other contention of the learned counsel for the petitioner that the offences invoked against the petitioner herein does not attract the ingredients

of the offence cannot be looked into at this stage. The Court has to look into whether the learned Magistrate has applied his judicious mind and I have

already pointed out that mechanical order has been passed by the learned Magistrate and hence it requires interference of this Court and the matter

has to be remitted back to the Trial Court to consider the matter afresh and pass appropriate order.

In view of the discussions made above, I pass the following:

ORDER

(i) The petition is allowed.

(ii) The impugned order dated 07.03.2020 is hereby quashed. The matter is remitted back to the learned Magistrate to consider the matter afresh and

pass the order in view of the judgment of the Apex Court referred supra and also the observations made by this Court.

In view of allowing of the main petition, I.A.No.1/2021 for stay does not survive for consideration and the same stands disposed of.