Sri Atma Prabhananda vs The State of Karnataka By the Station House Officer

Heard the learned counsel for the petitioner and the learned Additional Special Public Prosecutor.

The petitioner has sought for setting aside the order dated 31.01.2011 passed by the Chief Judicial Magistrate, Ramanagar directing registration of a case against the petitioner and ordering process against him for his appearance.

The main contention urged by the petitioner is that under the impugned order, the learned Magistrate has issued summons to the petitioner but the impugned order does not disclose the offences in respect of which the learned Magistrate has taken cognizance nor does it point out the offence for which the petitioner is required to face trial before the court.

The learned counsel submits that the impugned order is passed without application of mind and therefore, solely on this ground the impugned order is liable to be set aside. In support of this argument, the learned counsel refers to a decision rendered by the Hon''ble Supreme Court of India in the case of M/s. GHCL Employees Stock Option Trust V/s. M/s. India Infoline Limited, in Criminal Appeal No.488 of 2013 (3) Supreme 151, wherein Hon''ble Supreme Court at para 14 has held as under:

"Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material on record".

Refuting the above contentions, the learned Additional Special Public Prosecutor submits that the accusation made against the petitioner in the charge- sheet attract the offence under Sections 3 and 7 of the Essential Commodities Act, 1955 (hereinafter referred to as "the EC Act") as indicated in the note put up by the office, wherein Sections 3 and 7 of the EC Act as well as Section 420, IPC, have been referred, therefore, the impugned order has to be understood as having reference to Sections 3 and 7 of the EC Act and Section 420, IPC.

The Additional Special Public Prosecutor further submits that under Section 3 of the EC Act, the Central Government has issued a notification wherein Rule 3 thereof prohibits the use of kerosene supplied under Public Distribution System for any purpose other than cooking and illuminating.

Having heard the learned counsel for the petitioner and learned Additional Special Public Prosecutor, I find that the matter requires to be remitted to the learned Magistrate for taking cognizance in the matter afresh. This is not a case where there is no evidence at all. The order referred to by the learned Additional Special Public Prosecutor makes the use of kerosene distributed under Public Distribution System for any other purpose an offence but unfortunately, the learned Magistrate has not specified in the impugned order that the cognizance has been taken for violation to the provisions of the order issued under Subsection 3 of the EC Act. Even assuming that under the impugned order, cognizance have been taken for the offences under Sections 3 and 7 of the EC Act, it does not serve the purpose as the learned Magistrate has not specified the offences for which the cognizance has been taken.

For the above reason, the matter is remitted to the learned Magistrate. It is made clear that while taking cognizance of the offence, the learned Magistrate shall not be influenced by any observation made in this order and shall independently consider the evidence produced by the Investigating Agency and if such evidence makes out the offence, the learned Magistrate shall proceed in the matter, in accordance with law.

The petition stands disposed of accordingly.