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Judgments of Supreme Court of India and High Courts

Sri. Shaik Laique Ahmed vs State Of Karnataka on 20 June, 2018

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 20TH DAY OF JUNE, 2018

BEFORE

THE HON’BLE MR.JUSTICE K. N. PHANEENDRA

CRL.P. NO.2090/2018
BETWEEN

1. SRI SHAIK LAIQUE AHMED
S/O S K NAZEER BASHA
AGED ABOUT 34 YEARS
REP. BY HIS G P A HOLDER
SRI S K NAZEER BASHA

2. SRI S K NAZEER BASHA
S/O SHAIK RAHMATHUMIA SAHEB
AGED ABOUT 68 YEARS

3. SMT BEGUM JAN
W/O S K NAZEER BASHA
AGED ABOUT 61 YEARS

NOS. 1 TO 3 ARE R/AT NO 8,
AZIZ MULK, 8TH STREET
THOUSAND LIGHTS CHENNAI – 600 006

4. SRI FEROZ NAWAZ KHAN
S/O OF SRI YAKUB NAWAZ KHAN
AGED ABOUT 65 YEARS

5. SMT KURSHEED BEGUM
W/O SRI FEROZ NAWAZ KHAN
AGED ABOUT 62 YEARS

6. SMT SHANAWAZ BEGUM
DAUGHTER OF MR HUSSAIN KHAN
AGED ABOUT 61 YEARS
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7. SMT REHANA BEGUM
DAUGHTER OF MR HUSSAIN KHAN
AGED ABOUT 61 YEARS

NOS. 4 TO 7 ARE R/AT
NO 38/78, AZIZ MULK, 3RD STREET
THOUSAND LIGHTS CHENNAI – 600 006

… PETITIONERS

(BY SRI. SHAMANTH NAIK, ADV. FOR
SRI. SYED KHAMRUDDIN, ADV.)

AND

1. STATE OF KARNATAKA
REP. BY SHIVAJINAGAR
WOMEN POLICE STATION
EAST ZONE, BANGALORE CITY
BANGALORE – 560037
REP. BY SPP
HIGH COURT BUILDING

2. SMT SYEDA SALMA SADIYA
D/O SYED PASHA
AGED ABOUT 31 YEARS
R/ AT NO 2629, 37TH CROSS
9TH BLOCK, JAYANAGAR
BENGALURU – 560 069 … RESPONDENTS

(BY SRI. S. RACHAIAH, HCGP FOR R1;
SRI. J. D. KASHINATH, ADV. FOR
SRI. MOHAMMED SULTAN BEARY, ADV. FOR R2.)

THIS CRL.P IS FILED UNDER SECTION 482 CR.P.C
PRAYING TO QUASH THE ALL PROCEEDINGS AND
COMPLAINT IN P.C.R.NO.12622/2017 PENDING BEFORE
THE VI ADDL.C.M.M., BENGALURU.

THIS CRL.P COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
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ORDER

Heard the learned counsel for the petitioners and the

learned High Court Government Pleader for the first

respondent – State and the learned counsel for the second

respondent. Perused the records.

2. The records disclose that the second respondent

has filed a private complaint u/s.200 of Cr.PC., registered

in PCR No.12622/2017 for the offence punishable under

Sections 498A, 377, 323, 354 and 506 of IPC and also

u/ss.3 and 4 of the Dowry Prohibition Act. The learned

Magistrate has referred the said complaint for investigation

and report exercising power u/s.156(3) of Cr.PC., and the

matter is still awaiting report from the police.

3. On the basis of the above said reference, the first

respondent – police has registered a complaint u/s.156(3)

of Cr.P.C., and referred for investigation and report, which

proceedings are called in question.

4. The main contention of the learned counsel for the

petitioners is that before referring the matter, the learned
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Magistrate has not looked into the complaint averments in

order to examine as to whether any affidavit is filed by the

complainant in consonance with the guidelines of the

Hon’ble Apex Court in a case reported in 2015 (6) SCC

287 between Priyanka Srivatsava and another Vs.

State of UP Others. It is worth to extract paragraphs

26 and 27 of the said judgment of the Hon’ble Apex Court

which reads thus:

“26. At this stage it is seemly to state
that power under Section 156(3) warrants
application of judicial mind. A court of law is
involved. It is not the police taking steps at the
stage of Section 154 of the code. A litigant at
his own whim cannot invoke the authority of
the Magistrate. A principled and really grieved
citizen with clean hands must have free access
to invoke the said power. It protects the
citizens but when pervert litigations takes this
route to harass their fellows citizens, efforts
are to be made to scuttle and curb the same.

27. In our considered opinion, a stage
has come in this country where Section
156(3) Cr.P.C. applications are to be supported
by an affidavit duly sworn by the applicant who
seeks the invocation of the jurisdiction of the
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Magistrate. That apart, in an appropriate case,
the learned Magistrate would be well advised
to verify the truth and also can verify the
veracity of the allegations. This affidavit can
make the applicant more responsible. We are
compelled to say so as such kind of
applications are being filed in a routine manner
without taking any responsibility whatsoever
only to harass certain persons. That apart, it
becomes more disturbing and alarming when
one tries to pick up people who are passing
orders under a statutory provision which can
be challenged under the framework of said Act
or under Article 226 of the Constitution of
India. But it cannot be done to take undue
advantage in a criminal court as if somebody is
determined to settle the scores. We have
already indicated that there has to be prior
applications under section 154(1) and 164(3)
while filing a petition under Section 156(3).
Both the aspects should be clearly spelt out in
the application and necessary documents to
that effect shall be filed. The warrant for giving
a direction that an the application
under Section 156(3) be supported by an
affidavit so that the person making the
application should be conscious and also
endeavour to see that no false affidavit is
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made. It is because once an affidavit is found
to be false, he will be liable for prosecution in
accordance with law. This will deter him to
casually invoke the authority of the Magistrate
under Section 156(3). That apart, we have
already stated that the veracity of the same
can also be verified by the learned Magistrate,
regard being had to the nature of allegations of
the case. We are compelled to say so as a
number of cases pertaining to fiscal sphere,
matrimonial dispute/family disputes,
commercial offences, medical negligence
cases, corruption cases and the cases where
there is abnormal delay/laches in initiating
criminal prosecution, as are illustrated in Lalita
Kumari are being filed. That apart, the learned
Magistrate would also be aware of the delay in
lodging of the FIR”

On meaningful reading of the above said paragraphs, it is

clear that when the court has to make certain

observations, with all certainty that there has to be prior

report by the complainant before police u/s.154(1) and if

the police have not taken any action, he has approached

the higher officers u/s.156(4) and (3) of Cr.PC., before

filing the complaint and application u/s.156(3) of Cr.PC.,
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Both the above said aspects should be clearly spelt out in

the affidavit along with the necessary documents to that

effect, shall be filed by the complainant.

5. In this particular case, the said procedure

appears to have not been followed by the complainant.

Also, the learned Magistrate has not looked into this

particular aspect. Therefore, in my opinion, the reference

order passed by the learned Magistrate u/s.156(3) is bad

in law and consequential registration of the FIR also

deserves to be quashed. Hence, the following:

ORDER

The Petition is allowed. Consequently, the order

passed by the VI Addl. CMM, Bengaluru City in PCR

No.12622/2017 dated 11.10.2017 referring the complaint

for investigation and report u/s.156(3) of Cr.PC., is hereby

set aside and the consequential registration of FIR by the

first respondent police is hereby quashed. However, the

complaint filed by the respondent No.2 is restored on to

the file of the learned VI Addl. CMM Bengaluru with a

direction that the Magistrate has to go through the
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observations made by the Hon’ble Apex Court in Priyanka

Srivatsa’s Case as noted above and follow the procedure

as contemplated therein and pass appropriate order in

accordance with law.

Sd/-

JUDGE

PL*

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