MAHESH KUMAR K S Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD Sri K. M. Nataraj the learned counsel for the petitioner and Sri. B. C. Muddappa the learned Addl. S. P. P. Though notice was served on the 2nd respondent/complainant, he remained absent.

(2.) THE brief facts leading to this petition are that the 2nd respondent filed a complaint against the petitioner alleging that the petitioner after availing loan for purchase of vehicle under hire purchase agreement defaulted in payment of monthly instalments. It is further alleged that the petitioner had an intention to cheat by handing over the vehicle to a third party. It also sought for search warrant to direct the Inspector of Police to produce the said vehicle before Court. After receipt of this complaint, the learned JMPC. (II Court), Mangalore, registered a case in C. C. No. 18585/97 and took cognizance of the offence and recorded the sworn statement of the complainant on 18-8-97. On 20-8-97 on the application filed by the complainant/r-2 under S. 93, issued search warrant to produce the vehicle, etc. Subsequently, on 26-8-97 yet another application under Ss. 451 and 457, Cr. P. C. was filed for release of the vehicle. In the meantime, the other side also filed a similar application. On 28-8-97 the Court directed to refer the case for investigation under S. 156 (3) Cr. P. C. to the Kadri P. S. Mangalore, for investigation and report, and, the police investigated the case and filed a charge-sheet against the petitioner in Cr. No. 301/97 for the offence punishable under Ss. 420 and 421, IPC. Therefore, the Court issued summons to the petitioner and he appeared and requested the Court to close the proceedings on the ground that the dispute is of civil nature. However, the Court has rejected the request by order dt. 20-9-01. Therefore, he filed this petition.

(3.) FROM the very narration of the facts, it is abundantly clear that the learned Court below has after taking cognizance of the case issued search warrant and that cognizance was taken before recording his sworn statement. That being the case the Court should have proceeded with the case in accordance with S. 202 (1) Cr. P. C. Further, even the Court has directed the police to investigate the case under S. 156 (3) Cr. P. C. It is settled law that when once the Court has taken cognizance of the offence, it is not open to the Court to refer the case to the police for investigation under S. 156 (3) Cr. P. C. Therefore, the very procedure adopted by the Court below is contrary to the provisions of law. On that ground itself, the complaint is liable to be quashed. Their Lordships of the Supreme Court in Devarapalli Lakshmi-narayana Reddy v. Narayana Reddy, AIR 1976 SC 1672 : 1976 Cri LJ 1361) held that under S. 156 (3) the Magistrate refers the case which is in the nature of peremptory reminder to the police to exercise their plenary powers of investigation under Section 156 (1), but under S. 202 the Magistrate is empowered to direct, within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not there is sufficient ground for proceeding. " Thus the object of an investigation under S. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him. In this case, the Court after taking cognizance has referred the matter under S. 156 (3) Cr. P. C. and not under S. 202, Cr. P. C. Therefore, the procedure adopted by the Court also is illegal and invalid.