K.M. Jayarama vs State of Karnataka

K.N. Phaneendra, J.—Heard the learned Counsel for the petitioner and also the learned High Court Government Pleader for the Respondent/State and perused the records.

The petitioner sought quashing of the entire charge sheet and further proceedings in C.C. No. 1143/2013 on the file of Civil Judge & JMFC, Nelamangala registered against the petitioner for the offences under Section 420 of IPC and Sections 3 & 7 of the Essential Commodities Act, 1955 (''the Act'' for short).

The records discloses that the Nelamangala Police have registered a case against the petitioner for the above said offences on the allegations that on 15.1.2013, the Investigating Officer received a credible information that the petitioner is indulging in refilling the gas cylinders without any licence or permission and thereby cheated the Government and also the people at large. On receiving such information, the Investigating Officer went there, collected the panch witnesses, conducted the panchanama and found that the 138 cylinders were there. Out of them, 5 cylinders were filled up worth Rs. 1,50,000/-. On these allegations, the Investigating Officer has investigated the matter and filed the charge sheet.

Learned Counsel for the petitioner strenuously contends that though the petitioner has produced the licence granted by the Central Government for filling up of LPG and storage of LPG Gas in his premises and also permitted to refill the cylinders and it was in force upto 30.9.2015, but the police without receiving the same filed a false case on the basis of drawing up of Mahazar and recording the statement of some witnesses. It is argued that some of the witnesses are the Police Constables, who were working under the Investigating Officer. On perusal of the records, it discloses that some independent witnesses are also examined.

Learned Counsel for the petitioner also submitted that the police have no jurisdiction to investigate the matter under Sections 3 and 7 of the Act and the same is illegal as there is no order under Section 3 of the Act is violated by the petitioner. When Sections 3 & 7 of the Act are not attracted, on which basis the charge sheet has been filed for the offence under Section 420 of IPC, the said provision also does not survive for consideration. At this juncture, in my opinion, the Court has to evaluate the witnesses examined by the Investigating Officer under Section 161 of Cr.P.C., In order to weigh, whether the materials are sufficient to proceed against the accused for the purpose of framing of charges and put the accused persons on trial. He also submits that even if the accused produce any materials before the trial Court, the trial Court may not look into the said documents, only look into the charge sheet and pass appropriate orders.

In this regard, it is worth to refer a decision of this Court, which is reported in Thirthraj Upendra Joshi Vs. State of Karnataka, , wherein, this Court has held that:

"the Magistrate not adverting to documents filed by the accused before framing charge-held the accused was not given sufficient opportunity contemplated under Section 239 of Cr. P.C.,"

When the documents produced by the accused go to the route of the case of prosecution itself, then the Magistrate is not prevented from looking into such documents, Section 239 makes it abundantly clear that, "If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

The above said Section equally empowers the Magistrate to examine the accused and giving opportunity to the accused, if he thinks necessary under the peculiar facts and circumstances of the case before passing any orders. Therefore, the Magistrate is not required to only look into the charge sheet papers and ignore the materials produced by the accused. I should not be understood that if the accused produced un-necessary materials before the Court; those things should be enquired into by the Magistrate by holding a mini trial. But whenever the accused relies upon any admitted, unique uncontroverted documents, which go to the route of the prosecution case, then the Magistrate if he thinks necessary (not mandatory), he can examine the said documents and also the charge sheet and pass appropriate orders. The word used in Section 239 that, ''the Magistrate thinks necessary'', it gives an ample discretion to the Magistrate only under peculiar situation the Magistrate has to exercise that sound judicial discretion under the peculiar facts and circumstances of the case. Therefore, in the above said circumstances, the petitioner herein is at liberty to produce the licence granted by the competent authority to refilling the cylinders to show to the Court that he was an authorized dealer and he has got permission to fill up the gas cylinders. After considering the above said facts and also giving opportunity to both the parties, the learned magistrate has to pass appropriate orders under Section 239 of Cr.P.C.

All the other grounds urged by the learned Counsel before this Court are also kept open to be urged before the learned Magistrate.

With these observations, petition stands disposed of.

The office is hereby directed to return all the documents filed by the petitioner along with the petition.

In view of disposal of the main petition itself, IA-2/2014 for Stay does not survive for consideration. Hence, the same is dismissed.