IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE P. S. DINESH KUMAR WRIT PETITION NOS.25692-25694/2019 (GM-RES) BETWEEN:
1. SMT. SHAMIM SULTHANA, AGED ABOUT 42 YEARS, W/O SRI P.S.AYUB, R/A NO. T-3, MARIYAMMA APARTMENTS, FRAZER TOWN, BANGALORE – 560 005.
2. SRI ARBIN TAJ AYUB, S/O P.S. AYUB, AGED ABOUT 24 YEARS, R/A NO.T-3, MARIYAMMA APARTMENTS, FRAZER TOWN, BANGALORE 560 005.
3. SMT. URMILA SATYNARAYANA, W/O MR SRINIVASA, AGED ABOUT 34 YEARS, R/A FLAT A1, HITECH TIRUMALA APARTMENTS, BASAVESHWARA LAYOUT, BANGALORE NORTH, BANGALORE – 560 094. ... PETITIONERS (By Sri. PRASANNA KUMAR P., ADVOCATE) AND:
1. STATE OF KARNATAKA, BY TAVARAKERE POLICE STATION, MAGADI CIRCLE SUB DIVISION, REP. BY HIGH COURT GOVERNMENT PLEADER, HIGH COURT BUILDING, DR. B.R.AMBEDKAR VEEDHI, BENGALURU – 560 001.
2. SRI SHIVANNA, S/O NARASIMAIAH, AGED ABOUT 51 YEARS, R/AT CHIGALURU, SANKIGATTA POST, TIPPASANDRA HOBLI, BANGALORE SOUTH – 560 075. ... RESPONDENTS (By Sri.S.RACHAIAH, HCGP FOR R1) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 07.12.2018 IN C.C.NO.932/2018 PASSED BY II ADDL. CIVIL JUDGE AND JMFC, MAGADI THEREBY TAKING COGNIZANCE AND REGISTERING CASE FOR OFFENCES PUNISHABLE UNDER SECTIONS 392, 506, 413 OF IPC [PRODUCED VIDE ANNEXURE-H TO THE W.P.] AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS PENDING THEREON AS AGAINST THE PETITIONERS [ACCUSED NOS.3-5] THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
Order Petitioners are Directors of M/s Attica Gold Private Limited. After investigating into FIR No.276/2018 registered in Tavarekere Police Station, Ramanagar District, police have filed charge sheet alleging commission of offence punishable under Sections 392, 506 and 413 IPC against 7 accused. Petitioners are accused Nos.5, 6 & 7 and they have been charged for the offence punishable under Section 413 IPC.
2. Sri Prasanna Kumar, learned advocate for petitioners urged following grounds in support of these petitions:
that petitioners are Directors of M/s. Attica Gold Private Limited and the Company has not been arraigned as accused which runs counter to the law declared by the Hon’ble Supreme Court of India in the case of ANEETA HADA Vs. M/S.GODFATHER TRAVELS & TOURS PVT. LTD.
reported in (2008) 13 SCC 703;
that cognizance is not taken by the learned Magistrate in accordance with law; but the order sheet signed by the learned Magistrate on 07.12.2018 shows that the learned Magistrate has signed in a printed form, wherein the order taking cognizance is printed above the signature of the CAO. Thus, the order taking cognizance is mechanical in nature and hence, unsustainable in law.
3. Sri Rachaiah, learned High Court Government Pleader submitted that the first ground urged by learned advocate for petitioners is untenable inasmuch as parties have been arraigned in their individual capacity. So far as second ground urged, in his usual fairness, learned HCGP submitted that the procedure of signing on a printed format by learned Magistrate for taking cognizance is defective.
4. I have carefully considered the rival contentions and perused the records.
5. So far as first ground urged by learned advocate for petitioners is concerned, perusal of the charge sheet shows that the police have placed reliance on the statement of Assistant Registrar of Companies. However, there is no specific charge against the Company.
6. So far as the second ground is concerned, perusal of order sheet shows that the learned Magistrate has taken cognizance in a printed format. The sentence that ‘cognizance for the offence stated in the charge sheet are taken’ is printed above the signature of the CAO, which is followed with the sentence ‘office to register criminal case against accused Nos.1 to 7.’. The said order is signed by the learned Magistrate. The order taking cognizance which is a serious matter compelling a citizen to appear before the learned Magistrate in criminal proceedings is required to be passed with due diligence. Therefore, the order dated 07.12.2018 passed in this case is clearly unsustainable in law.
7. Resultantly, these petitions merit consideration. Hence, the following:
ORDER i) Writ Petitions are allowed in part.
ii) Order dated 07.12.2018 passed by the learned II Additional Civil Judge & JMFC, Magadi, in C.C.No.932/2018 taking cognizance is set aside.
iii) Matter is remitted to the learned II Additional Civil Judge & JMFC, Magadi, for reconsideration in accordance with law and to proceed further.
No costs.
Sd/- JUDGE PKS