Partly allowed

Basavaiah. C v. State by Maddur Police Station

Karnataka HC26 Jul 2022CRL.P/756/2021

Case brief

AI extract

What is this about?

The High Court allowed the Criminal Petition in part, quashing the Trial Court's order dismissing a discharge application under Section 239 Cr.P.C. The Court held the impugned order did not properly apply mind to documents produced by the petitioner and remitted the matter for fresh consideration within six weeks.

What did the court decide?

Quashing of the impugned order dated 19.10.2020. Remission of the matter to the Magistrate for reconsideration of the discharge application within six weeks.

Basavaiah. C Vs State by Maddur Police Station — Criminal Trial and Appeal | Karnataka HC (2022)

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CRL.P No. 756 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 756 OF 2021

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BETWEEN:

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BASAVAIAH. C S/O. CHANNE GOWDA @ CHIKKANNA, AGED ABOUT 52 YEARS, ADVOCATE AT BENGALURU, SINCE 1996 AND PARTIAL AGRICULTURIST R/O. NEELAKANTANAHALLI VILLAGE, ALUR POST, KASABA HOBLI, MADDUR TALUK, MANDYA DISTRICT-571 433 PRESENTLY R/AT NO. 170/34, 10^TH CROSS, 1^ST MAIN, BOVIPALYA, MAHALAKSHMIPURAM, BENGALURU-560 086,

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(IN THE COURSE OF THE CAUSE TITLE ORDERS ON APPLICATION THE ADDRESS MENTIONED AS)

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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BASAVAIAH.C, S/O. JAVARAIAH, AGED ABOUT 42 YEARS, R/O. NELAMAKANAHALLI VILLAGE, MADDUR TALUK, MANDYA DISTRICT.

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…PETITIONER

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(BY SRI.BASAVAIAH C., PARTY- IN- PERSON)

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CRL.P No. 756 of 2021

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AND:

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STATE BY MADDUR POLICE STATION MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-572 428.

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REPRESENTED BY S.P.P., BANGALORE – 01.

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…RESPONDENT

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(BY SMT.K.P.YASHODHA, HCGP)

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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER OF THE TRIAL COURT ON DISMISSAL OF THE APPLICATION FILED UNDER SEC.239 OF THE CR.PC FOR DISCHARGEMENT OF THE PETITIONER FROM THE ALLEGED OFFENCES MADE BY THE COMPLAINANT POLICE AUTHORITY UNDER SEC.3(1), 42(1), 43(2), 31(g), AND 8 OF KMMC RULES AND COLUMN 70, 75, 192 OF KARNATAKA LAND REVENUE ACT AND 4(1), 4(1a), OF THE MMRD ACT AND UNDER SEC.188,379 AND 143 R/W 149 OF THE IPC ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC AT MADDUR VIDE ORDER DATED 19.10.2020 IN C.C.NO.1701/2018 IN CR.NO.270/2015.

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THIS CRL.P. COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.P No. 756 of 2021

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ORDER

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The petitioner calls in question an order dated 19.10.2020 passed in C.C.No.1701/2018, which declines

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to accept the application of the petitioner seeking his discharge from the array of accused in Crime No.270/2015 registered for offences punishable under Sections 3(1), 42(1), 43(2), 31R(13) of the Karnataka Minor Mineral Concession Rules, 1994, Sections 70, 95, 192 of the Karnataka Land Revenue Act, 1964, Sections 4(1), 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957 and Sections 188, 379, 143 and 149 of the IPC.

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Heard the petitioner (party-in-person) and the learned HCGP Smt. K.P. Yashodha appearing for the respondent.

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Brief facts leading to the filing of present petition, as borne out from the pleadings, are as follows:

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On 24.06.2015, a complaint is registered against the

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petitioner for the aforesaid offences. On 20.11.2016, the

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CRL.P No. 756 of 2021

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police file a charge sheet and the matter is pending in C.C.No.281/2016. In the said proceeding, the petitioner files an application seeking his discharge under Section 239 of the Cr.P.C. The learned Magistrate considering the application so filed, passes the following order:

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"7. The accused No.3 is an advocate and he has taken the plea of Alibi stating that he is working as advocate at Bengaluru and he was involved in the offence and on that ground, he has stated that he has to be discharged from this case. As could be seen from the chargesheet and the materials filed by the police, the police have collected the evidence for illegal sand mining in the land belonging to the accused No.3. The accused No.3 has also not disputed the ownership of the said land which is bearing Sy.No.13/1 situated at Neelakantanahalli Village, Alur Post, Kasaba Hobli, Maddur Taluk, Mandya District. The only plea taken by the accused is that, he is residing at Bengaluru and working as an advocate and the said land is a coconut garden and he is doing other agricultural operation in the said land and he had no intention to do illegal mining

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CRL.P No. 756 of 2021

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in the said land. But it is pertinent to note that the accused No.3 has not produced any document to show that he was elsewhere on the alleged day of offence and he was not involved in the offence as alleged by the prosecution. The police have conducted the mahazar and have also collected primafacie materials which show that the accused No.3 was involved in the commission of the offences as alleged.

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8. It is trite to refere to the decision of the Hon'ble Supreme Court in Anguswamy Vs. Kaleeswaran Ambalam reported in (1989 Mad L.W (Crl) 108) wherein it is observed that:

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"The stage of Section 239 of the Code prior to the framing of the charge under Sec.240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate at that stage is required to consider the police report and the documents sent along with it under Sec.173 which are furnished tot he accused in compliance with Sec.207 of the Code and the explanation given by the accused during his examination and the submission, if any, made by the

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CRL.P No. 756 of 2021

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prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is groundless. At that stage, as rightly pointed out by the learned Single Judge of the Delhi High Court in Surinder Kumar Yadav's case (1986 (3) Crimes 645), it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Sec.207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under Sec.207 Criminal Procedure Code, but the document produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the accusation leveled against the accused is goundless or not"

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The Hon'ble Supreme court in the decision of Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja ( 1979) Cr. L.J 1390 has held that:

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CRL.P No. 756 of 2021

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"At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on a general consideration of the material placed before him by the investigating police officer. The standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Sec.227 and 228. At this stage even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offences alleged, may justify the framing of charges against the accused in respect of the commission of the offence."

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9. In this case, the standard of proof which required at this framing of charge is not the same as required for proving the case of the prosecution. There are materials against the accused No.3 which prima-facie show that the accused was involved in the illegal mining of the

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CRL.P No. 756 of 2021

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sand in the land belonging to him. Hence, for the reasons discussed in the preceding paragraphs, the above point is answered in the NEGATIVE and this Court proceeds to pass the following:

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ORDER

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The application filed by the accused

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NO.3 under Sec.239 of Cr.P.C., dated 26.3.2019 is dismissed. Call on 13/11/20 "

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The petitioner in person takes this Court

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through the documents appended to the petition to demonstrate that the petitioner was in fact was not present in the place and his name is been dragged only on the ground that the records of the land were in the name of the petitioner.

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Learned HCGP would refute the submission to contend that, in the land of the petitioner, a pit was dug which was close to 25 feet deep and sand was being excavated contrary to law and therefore, the petitioner

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CRL.P No. 756 of 2021

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had been dragged into these proceedings and rightly so is the submission of the learned counsel.

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6. Be the submissions and contra submissions, as

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they may. The order of discharge passed by the learned Magistrate does not bear any application of mind, as the reason assigned is that the petitioner has not produced any documents to show that he was elsewhere on the alleged day of offence and was not involved at all. This is contrary to the record, plethora of documents are placed as annexures to this petition. The petitioner in person submits that all those documents were placed before the learned Magistrate before whom the application seeking discharge so filed.

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Therefore, it is the matter where the learned Magistrate will have to reconsider the application under Section 239 of the Cr.P.C. and pass appropriate orders in accordance with law after taking note of the documents produced by the petitioner and on consideration of the same.

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10 -

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CRL.P No. 756 of 2021

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For the aforesaid reasons, the following:

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ORDER

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a. The petition is allowed-in-part.

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b. The order dated 19.10.2020 passed in C.C.No.1701/2018 by the II Additional Civil Judge and JMFC, Maddur, stands quashed.

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c. The matter is remitted back to the hands of the learned Magistrate to reconsider the application bearing in mind the observations made in the course of the order and pass appropriate orders in accordance with law within 6 weeks from the date of the receipt of a copy of the order of this Court.

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Ordered accordingly.

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SJK

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Sd/JUDGE

Basavaiah. C v. State by Maddur Police Station

Case brief

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Basavaiah. C v. State by Maddur Police Station

Case brief

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