IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATEHHD THIS THE 28"' DAY OF OCTOBER 2010 BEFORE THE Hoixrsts MR. JUSTICE C.R. i<uMARASWAMY'j'__'__:'.;~ if CRIMINAL PETITION NO.4105/2010' f"~.,, i BETWEEN: Smt. Somdutta Ganguiy, W/o Vikas Rajshekar, Aged about 27 years, Occupation: Private Service, _ Resident of NO.735, 4*" Mai'n~._Roa'd, _ , 3" Stage, BEML Layout, " 2 1 Rajarajeshwari Nagara, . .-- __ Barigaiore-98. ' V. " I Petitioner (By Sri. C.H. J:_.a'djhav:,:AdvO:;a_te.)_ i1 AND: 1. State oi*«Ka--rnatak'e,fl_ 4 By Airport Police 'S_tatio'n_,""_; Bancgaiore, _V Repiiiesented bythe State . Pu"o--ii'C i?r.Os"ecutOr, " """ " I High C.0urt--.Bui|ding, Banga i_C:r,e~'v5i6Q "Q0 1. 2. MQlAifeeV.S'oiit.wVare India Private Ltd., A company 'incorporated under the »- Comgjavniies Act, 1956 Having its registration Office at _E.r_nbassy Goif Links Business Park, Pine Vaiiey -~ 2"" floor, Off. Indiranagar --- Koramangaia "Ring Road, BangaIOre~56O 071. .2' Represented by its Authorized Signatory, Mr. Rajeev Maiik. Respondents
(By Sri. Sathish R Girji, High Court Government Pleader for
R1, Sri. Ravi B. Naik, Senior Counsel for R2) ‘
This Criminal Petition is filed under Section~«~~4.82__’o’f, ”
Code of Criminal Procedure praying to set asideihe ,or’der —
dated 11.8.2010 passed by the IV Add_i.ti.O_n~a,l’Chief
Metropolitan Magistrate, Bangalo.re.._Cit1y PCR
No.12852/10 thereby referring tifie _afo-resaid’~.__p*riV-date’,
compiaint back to the respondent} i\io.1″–Ai’rpo’rt Po».!’ii”ce”-f
Station against the petitioners;for reainv.estig,ation’, ‘even”«
after filing of “B” report for the afore_said “offences.
This Criminal Petition is comi.nfgv.ori..for ad’iriisAsioi:i this
day the Court made the fo_lIo.win_-g: .4 V
§’:”R”ii’iE it
This Cri.n”si”naI*A..,Petitio:n_«_1’is. fi-l_edLWunder Section~482 of
Code of set aside the order
dated 1ii.–8.2–oioi the iv Additional Chief
Metropoiitanl4’*M_ag~istrate,P” Bangalore City in PCR
if”Nd.g121ss2i;-P2010 thie’re’dy’ referring the private complaint
lbaclkgeto hth_e.,V:ReVspo’ijdent No.1 — Airport Police Station for re-
investyilgationlagainst the petitioner, even after filing of ‘B’
ll”‘~»-«.___report. ”
x I have heard the learned counsel for the petitioner,
Still”—.’:;lea_rned senior counsel for Respondent No.2 and learned
/
%«
High Court Government Pleacier for Respondent No.1 -»
State.
3. The primary facts of the case are as under:
3.1 A complaint was filed by the
McAfee Software India Private Limiteedé beror’e-:f:hé”,’_iv
Additional Chief Metropolitan Magistrate,1’_’_’BalVng–a~!.o’r”e:;’y
alleged in the complaint thattthe aC’cu_sec_l’li:oi’n_ed~…the
complainant company as ProVd.uct*’:._Marketing:,._lVla§nager.
During the course of her”employ_rfiej.;1t;”*Vsh:’eintroduced the
vendor by name 4’_’:Gy_antt'”‘Serv:icesif:»vv’h.ich:.’AV’.l3’e’longs to her
husband to ofulmaterials such as
white documentation etc..
The bills and invoices of her
husband _comp’an_:y.V.Whe’n the complainant company came
about’ theimrsdeeds of the accused, they were
co..n’stra’ine’d.iV_to 4VfE~l.e”_the complaint.
35.2 the complaint was received by the learned
‘éVV””‘l’~$agistrate’; the Magistrate has referred the matter for
.ji.–nvestig’ation to Koramangala Police Station. On the point
*3 ,.x’
Kr”
of jurisdiction, the said crime was transferred to the Airport
Police Station.
3.3 The Airport Police have issued a notice to-ct’he”–,_
complainant to produce various documents. Insp’–ite.:AofT.i’t, *
the complainant did not cooperate witntne
Notice was issued to the compiainan’tyunde’r
Code of Criminal Procedure to Vproduce the__ ceVrtiain’§._o’i’-i»g.iniai
documents vi2., original copy of suhbm-ittedniby the
accused , Audit report that has been
cheated by the apvccused which Audit
report being ‘V compiliawiinant declined to
produce the ground that the
documentsvsoughtfurnished due to company’s
global p.olicy.i°* V_:’Tvhe’rel’ore”°the investigating agency have
V’be.con$,.e:’h:p!.pless inMco’n’d’ucting any investigation and filed a
33.4 ‘B’ report was filed, the learned Magistrate
“hens issued’ notice to the complainant. The complainant
i’il’ed a protest petition on 9.8.2010 and sought for
ffrejecting the ‘B’ report and to refer the matter for Cyber
.?…»~”‘
Crime Police for investigation or permit the complainant to
lead evidence to prove his case. The learned Magistrate by
an impugned order dated 11.8.2010 has referred
matter back to the Airport Poiice Station for investig«a–ti’on’_¢’_
4. Feeling aggrieved by the same,’treeaccuiseeeg.rieVs__
preferred this Criminal Petitiongto qua-s.h”~–tne daVted”i 1′
11.8.2010 in so far as referring”i’r»t.he matter'”‘backflItoVVVthe
Airport Police Station for ‘Em’/esti§§Aa’tion’i:.._
5. It is the” ccrntentiioniot’;th’e counsei for the
petitioner that V.lV.earne’d5.’j;lii’a=gist’r’ateV is not competent
enough referVthe’–.n*iatt’er”for further investigation after
the Police filed the V’VB_’ “re’po.rt’_.; C In support of his contention,
_._he rei.ie€s’Vo’lre thendecision of the Hon’bie Supreme Court in
A\th»eVjV’e.aVserlcizfREETA NAG .vs. STAGE or wesr BENGAL
SCC 129 wherein at paragraphs 25 and
-26, itis under:
What emerges from the abovementioned
decisions of this Court is that once a charge-
sheet is filed under Section 173(2) CrPC and
9′?
{J
/.
either charge is framed or the accused are
discharged, the Magistrate may, on the basis of
a protest petition, take cognizance of the
offence compiained of or on the appiication.._W
made by the investigating authorities
further investigation under Section 173(8).
Magistrate cannot suo motu diiriect a_””fdrth’er ‘
investigation under Section
direct a reinvestigation into a caseton acc–Ci:i,n’t”
of the bar of Section 167(2’)v..,,:o’fi.the Code.-.._
26. In the instant _caé_se,;_ithe’ainvestigating
authorities did not ffurther
investigationgyand it, ‘_iivas,VA”~~.otn_IVy’ “upon the
appiicat__i.»3’n”»v b’y’,_:t_he.,,. de facto. complainant
und~ie’r”‘S~ectionil:i;7–3(“8.V)’waist”a~di”rection given by
the’,Ieatnecir’Magiastrate ‘to reinvestigate the
matter,’ As we”«ih’av’e«–._ga’ii’eady indicated above,
stich aiikiourse C-.f”action was beyond the
,.’j:t:risd’ict,,ionai”competence of the Magistrate.
A*–.i§1ot,vAon%it,z:w.a_s the Magistrate wrong in directing
V ,%ei.vnv.e_st.i,g.aition on the application made by the
factiotcompiainant, but he aiso exceeded his
;’ti.r.i§d_icticin in entertaining the said application
‘ ” +.f_i.led”‘by the de facto complainant.”
if
-.+
Therefore iearned counsel for the petitioner prays to set
aside the order of referring the matter back to the Airport
Poiice Station for re–investigation. He further submits
at the most the protest petition can be treated-.’_jaS_’__”‘a
compiaint and if the compiainant desires to iea.d’,.A’_:eviid»e’nce,if
he may be permitted lead evidence to
6. Learned senior counsei’V”i’for’ the ‘iiio.2
submits that for the 3’ustice;ri’:thre\:iearneciiiiiagistrate
can refer the matter even after
filing the protest” :’i’herA«ieia–rned:V.fiiiagistrate is at
liberty to refer matte’r55.’jfo.r’-furtiirer investigation even
after fiiinwgi the firiai’:’repiort’;.:”V—..In -support of his contention,
he reiies on “th_e”ri_ec’is_ion’ of:”t_heVDe!hi High Court in the case
_._of RA3!\_iEissiH i<ui4xx.r§ sIi\ii3HAL .vs. STATE reported in 2001
it is heid as under:
i”‘._A’i’f.*.’_’jrhe’ is empowered to direct the
“‘poiice’to.7~’fdrther investigate the matter after the
fiii’ngr__f’i-of the chaiian before it and even after
it Vfitiayking cognizance of the offence. There is no
Vfiprovision in the Code which bars the Magistrate
before whom the report under Sec. 173(2) of
3/
the Code is filed to direct further investigation
of the offence even in a case where cognizance
has already been taken. Al! procedurai laws are
meant to do justice and not to stifle the same.
In a given situation where a Magistrate fin~dsj_:
that the matter requires further investigationiris’: it
view of the partisan attitude of_t.h.e__poIicethere ‘_ V
can be no bar to his directing the
agency to conduct further _investigation ”
case. The magistrate by rag
does not trench upon the_._.iuri_sd.i_ction
poiice who are further
investigate in the matter]; vAA.'[f_nagistrate
simply by i’l’c¥]Sii_(ii’i_C’Vl;AVV’H1;|”1_:EVj::: V’ to further
investigate»thé:_rna’tt:er’ i-.’.1.a.._sefii.se ismdirecting it
to “ju’i”–isd-iction-~~–w§hich has been
conferred oniiheg”po’I’iice'”under Section 173(8) of
the ‘Coder. ‘ the powers of the
Magistrate i.w-iii”. Viavdverseiy affect the
._’adm_i_nistrationiofjustice. Magistracy cannot be
i*rnadjei«soipoweriess that it becomes incapable of
*-i’correct.i3ngfja.wrong and advancing the cause of
A .j4ustice.'” ‘
The Code of Criminal Procedure does not preclude
V’ ____”‘thefinvestigating agency to make further investigation after
u”~filing of the charge sheet. Norrnaiiy the prosecution,
rs»-”
informant or accused cannot claim further investigation as a
matter of right except that of Investigating Officer or the
officer in–charge of a Police Station. In this case, since
the complainant did not cooperate with the investig’ati’_o-n.;II”
the Investigating Agency after investigation_.Vfiie’d,.
report. After ‘B’ report was filed, an;.opp:o’rtunigty’iwais-given:
to the compiainant to file protest petitio-rif.. Accogrdingiy, the”- I
compiainant submitted a protest””p.e.tition. of
the protest petition, referred the
matter back to the per Section-
173(8) of Code” the officer in-
charge of the _Po_iicefl”Statio’n’.’jobt–a:iinskfurther evidence, orai
or docurnen.taryV,V”Whi-e_”sgh’a[i**-..forwarci the same to the
Magistrate. ‘£3>.ut* in Vthefivinstaint’case, it is not at the instance
4_._of the.iiinvestigatingiibfficer or the Station House Officer of
‘,tjhe:’P.ouIice»: that the matter has been referred for
furthgfehr._inv’es_tigation. It is at the instance of the informant
pr the.°’com:pIai’naht, the matter was referred to the Airport
If “Po|i”cer..StaVt’ion for further investigation. Such a course is
.’.jno'”t=Vperrnissible under Section 173(8) of Code of Criminai
I *i..:fP’rocedure. The iearned counsei for the Respondent No.2
My,
10
submits that for the cause ofjustice, the learned Magistrate
is empowered to refer the matter to the concerned Poiice
for further investigation, but the complainant having:’fa:’ijl’ed*._4
to produce the documents when notice under ‘
Code of Criminal Procedure was issuedi»~a.nd h.aving*r.fai!ed’_’_to V
cooperate with the investigation, “now’_A_’ithe
seeking to refer the matter to tii.e:”Cyber'”Crime’Fi,oiAic;e”-~is. not
proper because under Section Co’d”er-Of Criminal
Procedure it is only of the police
station in case, ‘either oral or
documentary’. -it to iiliilaigistrate. In the
case of RVEETAuiii$G:’1–1l;yS. BENGAL reported
in (zooégs ,iraéf:1y”*’iioa’bie Supreme Court has
observed thiatthe Vi’i:v’esti”g:ai_’i;ring authority did not apply for
4….furthe.r§;inv’estigaVti’o.n:and it was oniy upon the application
tbVe’A«de:facto compiainant under Section 173 (8) was
a ‘ud~i.re.ction the iearned Magistrate to reinvestigate
the mattevri ‘””Such a course of action was beyond the
ix”””ju,:ri’sdri.c.tional competence of the Magistrate. Since the
..jHon:’b!e: Supreme Court has consistently taken the above
the ruling of the Delhi High Court in the case of
(5,;-‘”
11
RAJNEESH KUMAR SINGHAL .VS. STATE reported in 2001
Cr£.LJ 1192 may not helpfui to the Respondent
No.2/complainant. In this case, as stated eartier,
an opportunity was given to the complainant to ‘
documents, he has failed to do so. Thereafter”h1é”chas”‘fii_¢t£
a protest petition with a request to refer’:th’e to
Cyber Crime Police. In the absence of the
Station House Officer of the concerned ‘Poiice’Stat,ion; in my
view, it is not proper for Magis~tr~ate’Ve’to’,:refer the matter
to the Airport eeeodce sta’t:iori; investigation.
However the duper:-,1 vltouivestabiish its case
by adducivng…e_vAidence;.: ,_There’to’re–.therriimpugned order dated
1t.8.2o1i0_ rerea-iririg’j’th:ee to the Airport Police Station
for investigaititgn is V€i’a_ole: t’o::b;e’set aside.
8..*1.n1the”re.sui’t,'”I pass the foiiowing :
i Thi-s tcrimin :£|V”c~PetitEon is a I iowed.
j 2. The impugfp-ed order dated 11.8.2010 passed in PCR
No.128S2/2010 referring the matter back to the Airport
Police Station for Envestégation is set aside. However, the
12
complaénant is at iéberty to adduce evidence and
estabiésh his case before the trial Court.
Gss/ –