Karnataka High Court
Shiraguppi Prathamika Krishi vs The Assistant Registrar Of on 9 March, 2022
Bench: Hemant Chandangoudar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
Writ Petition No.107974/2016 (GM-RES)
Between
1. Shiraguppi Prathamika Krishi Pattina
Sahakari Sangha,
Rep. by its Chief Executive,
Shri. Basavaraj,
S/o Mallappa Mantur,
Age: 46 years, Occ: Chief Executive,
R/o: Shiraguppi, Tq: Jamakhandi,
Dist: Bagalkot.
2. Basavaraj Mallappa Khebbani,
Age: 56 years, Occ: Member,
R/o: Shiraguppi, Tq: Jamakhandi,
Dist: Bagalkot.
3. Smt. Sanyavva Mallappa B.Patil,
Age: 64 years, Occ: Member,
R/o: Maigur, Tq: Jamakhandi,
Dist: Bagalkot.
4. Ashok Gurubasappa Nyamagoud,
Age: 44 years, Occ: Member,
R/o: Shiraguppi, Tq: Jamakhandi,
Dist: Bagalkot.
5. Dhareppa Bhavuray Alagur,
Age: 42 years, Occ: Member,
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R/o: Shiraguppi, Tq: Jamakhandi,
Dist: Bagalkot.
6. Basappa Shivappa B.Patil,
Age: 28 years, Occ: Member,
R/o: Maigur, Tq: Jamakhandi,
Dist: Bagalkot.
7. Purushothama Hanamanth Meesi,
Age: 37 years, Occ: President,
R/o: Maigur, Tq: Jamakhandi,
Dist: Bagalkot.
8. Nagaraj Basappa Khebbani,
Age: 26 years, Occ: Member,
R/o: Shiraguppi, Tq: Jamakhandi,
Dist: Bagalkot.
9. Shrikanth Kallappa Shedabal,
Age: 34 years, Occ: Member,
R/o: Maigur, Tq: Jamakhandi,
Dist: Bagalkot.
10. Shrishail Hanamanth Bisnal,
Age: 47 years, Occ: Member,
R/o: Shiraguppi,
Tq: Jamakhandi,
Dist: Bagalkot.
11. Smt. Renuka S.Lamani,
Age: 30 years, Occ: Bank Supervisor,
R/o: Bagalkot District Central
Co-operative Bank,
Jamakhandi Branch,
Tq: Jamakhandi, Dist: Bagalkot.
...Petitioners
(By Sri. Nandish Patil, Advocate for Sri. F.V.Patil,
Advocate)
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And
1. The Assistant Registrar of
Co-operative Societies,
Tq: Jamakhandi,
Dist: Bagalkot.
2. Mallappa S.Yaragall,
Age: Major,
Occ: Asst. Registrar,
R/o Jamakhandi,
Dist: Bagalkot.
3. The Sahakara Development
Officer/The Co-operative
Development Officer,
Jamakhandi,
Dist: Bagalkot.
...Respondents
(By Sri. Ramesh Chigari, HCGP for R1)
(R2 & R3 served, unrepresented)
This writ petition is filed under Articles 226 & 227
of the Constitution of India, praying to quash the
complaint dated 31.08.2016 vide Annexure-W; and
quash the order taking cognizance dated 02.09.2016 in
C.C. No.470/2016 passed by the Principal JMFC,
Jamkhandi, vide Annexure-X.
This writ petition coming on for Preliminary
Hearing in 'B' Group this day, the Court made the
following:
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ORDER
The second respondent filed a complaint under
Section 200 of the Code of Criminal Procedure, 1973,
against the petitioners alleging that, by not intimating
the death of one of the Directors, they contravened the
provisions of Section 29G(4)(f) of the Karnataka
Co-Operative Societies Act, 1959. The learned
Magistrate registered the case and after dispensing with
recording of sworn statement of the complainant, issued
summons to the petitioners/accused. Taking exception
to this, the present petition is filed.
2. The learned counsel for the petitioners
submits that the learned Magistrate, without application
of mind and without satisfying that the allegations, if
proved, would constitute an offence, has proceeded to
issue summons to the petitioner. Hence, he submits that
the impugned order passed by the learned Magistrate
requires to be quashed. In support of the said
contention, he relies on the decision of the Hon'ble Apex
Court in the case of Sunil Bharti Mittal Vs. Central
Bureau of Investigation reported in (2015)4 SCC 609.
3. On the other hand, the learned High Court
Government Pleader appearing for the first respondent-
State submits that the learned Magistrate, after applying
his mind to the allegations made in the complaint, has
ordered for registering the case and issuance of
summons to petitioners/accused.
4. I have examined the submissions made by
the learned counsel for the parties.
5. The impugned order dated 02.09.2016
passed by the learned Magistrate in C.C. No.470/2016
reads as under:
"Complainant is present.
Office to register as C.C.
Sworn Statement of
complaint is dispensed with,
personal witness evidence
of complainant is divined
with. Issue summons to Accused No.1 to 12."
A perusal of the order sheet indicates that the
learned Magistrate after dispensing with the sworn
statement of the complainant and issued summons to
the accused.
6. The Hon'ble Apex Court in the case of Sunil
Bharti Mittal (supra), at para 48 of its judgment, has
held/observed as under:
"48. Sine qua non for taking cognizance of
the offence is the application of mind by the
Magistrate and his satisfaction that the
allegations, if proved, would constitute an
offence. It is, therefore, imperative that on a
complaint or on a police report, the Magistrate is
bound to consider the question as to whether the
same discloses commission of an offence and is
required to form such an opinion in this respect.
When he does so and decides to issue process,
he shall be said to have taken cognizance. At the
stage of taking cognizance, the only
consideration before the court remains to
consider judiciously whether the material on
which the prosecution proposes to prosecute the
accused brings out a prima facie case or not."
7. In the present case, the learned Magistrate
has not applied his mind and without satisfying that the
allegations, if proved, would constitute an offence, has
issued summons to the petitioners/accused. Hence, the
order passed by the learned Magistrate without
considering the material to satisfy whether the
allegations made in the complaint discloses commission
of the offences, has issued summons to the petitioner-
accused and the same is not sustainable in law. hence, I
pass the following:
ORDER
The petition is allowed. The impugned
order dated 02.09.2016 passed by the
Principal JMFC, Jamkhandi, in C.C.
No.470/2016 is hereby quashed.
The learned Magistrate is at liberty to
proceed further to consider the material and
take cognizance of the offences alleged in
accordance with law.
Sd/-
JUDGE
Kms
