The stage of Cognizance would only arise after the report of Investigation: Karnataka High Court
Referring the matter for investigation without the application of judicious mind, is nothing but an abuse of process. At the same time, that stage of cognizance would arise only after investigation report is filed before the Magistrate. These principles were upheld by the High Court of Karnataka presided by J. H.P. Sandesh in the case of Mrs. Vilasini Seevanthan & anr. vs. State of Karnataka & othrs. [CRIMINAL PETITION No.4276/2020].
In the instant case, the petitioner filed this petition before the Court to quash the order passed by the learned Magistrate in PCR No.50506/2020. The learned counsel Adv. Ayantika Mondal, for the petitioner submitted that learned Magistrate while referring the matter under Section 156(3) of Cr.P.C. had not applied his judicious mind and mechanically referred the matter for investigation without looking into the contents of the complaint and the documents placed along with the complaint. Per contra, the respondent submitted that the Magistrate while passing the order mentioned that he has perused the materials placed on record and referred the matter for investigation thereby applying his mind.
The court in the present case observed, “Having heard the learned counsel for the petitioner and learned counsel appearing for the respondent and on perusal the impugned except mentioning that perused the of the order materials on record, learned Magistrate has not applied his mind whether the offences invoked are cognizable or non cognizable offence and even nothing is mentioned in the order whether he has looked into the contents of the complaint and documents produced along with the complaint. Without application of mind the learned Magistrate has referred the matter under Section 156(3) of Cr.P.C. for investigation.”
Principles and Case laws referred
The court further referred to the principles laid down in the judgments mentioned below in order to reach to conclusion for the matter in concern of the case at hand.
- DINESHBHAI CHANDUBHAI PATEL V. STATE OF GUJARAT AND OTHERS 2018(3) SCC 104.
The honorable court held, “With regard to referring the matter under Section 156(3) of Cr.P.C. the court summarized the principles as to how to deal with context to challenge to FIR. It is held that the power vests with the Investigating Officer under Section 157 of Cr.P.C. to investigate the matter and the Court cannot act like an investigating agency nor can exercise the powers like an appellate Court, question is required to be examined, keeping in view of the contents of the FIR and prima facie material, if any, requiring no proof.”
- MAKSUD SAIYED V. STATE OF GUJARATH AND OTHERS reported in (2008) 5 SCC 668
The Apex Court in this case categorically held that, “The learned Magistrate before referring the matter under Section 156(3) of Cr.P.C. has to apply his judicious mind and pass appropriate orders. This Court in the Maksud Saiyed case examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of section 156(3) or section 200 CrPC, 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) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted.
- Priyanka Srivastava & Anr vs State Of U.P.& Ors on 19 March, 2015 presided by Dipak Misra, Prafulla C. Pant.
The court contended, “It needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high positions in the bank. We are absolutely conscious that the position does not matter, for nobody is above law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act , invokes the jurisdiction under section 156(3) Cr.P.C. and also there is a separate procedure under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.” The court further held, “We are obligated to say that the learned Magistrate should have kept himself alive to the aforesaid provision before venturing into directing registration of the FIR under section 156(3) Cr.P.C. It is because the Parliament in its wisdom has made such a provision to protect the secured creditors or any of its officers, and needles to emphasize, the legislative mandate, has to be kept in mind. In view of the aforesaid analysis, we allow the appeal, set aside the order passed by the High Court and quash the registration of the FIR.”
- Hdfc Securities Ltd.& Ors vs State Of Maharashtra & Anr on 9 December, 2016 presided by Pinaki Chandra Ghose, Amitava Roy
In this case, the honorable court observed, “It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appeared that this order under section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court. Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions and the appeal is dismissed.”
In the case at hand, the honorable court held, “The court considers the principles laid down in similar judgments, that the order directing the Investigating does not amount to causing an injury of irreparable nature and the order cannot be quashed at a premature stage and the stage of cognizance only arises after the process of investigation has been completed. Also, the application of mind by the Magistrate should be reflected in the order.” The court further held, “In view of the discussion made above, I allow the present petition. The impugned order in PCR No.50506/2020 is hereby set aside and the matter is remitted back to the Magistrate to consider the same afresh and pass an appropriate order applying the judicious mind.”