Lok Pal Singh, J
1) This criminal revision is directed against the order dated 14.12.2015, passed by learned Addl. Chief Judicial Magistrate, Roorkee, District Haridwar,
in Criminal case no. 1550 of 2014 (old no. 2699 of 2012), State vs Rajesh Kumar, whereby the application moved by the revisionist under Section 239
of Cr.P.C. was rejected by the said court and charge in respect of the offence punishable under Section 3/7 of the Essential Commodities Act has
been framed against the revisionist.
2) Prosecution story, in brief, is that complainant / respondent no. 2 lodged an FIR against the revisionist on 05.05.2009, at 14:00 P.M., at police
Station, Bhagwanpur, District Haridwar, stating therein, that he received information from an informer that illegal business of selling diesel is going on
in village Hallumajra. On this information, complainant along with police personnel reached Village Hallumajra on 05.05.2009, at 06:10 A.M., at the
residence of the revisionist and conducted raid at 09:30 A.M., in the presence of Supply Inspector, Roorkee. On raid being conducted, 20 drums of
200 liters each filled with diesel oil, 20 empty drums, measuring articles and pump were recovered. It is alleged, that the revisionist failed to show any
license for storing and selling the diesel oil. The raiding party seized all the incriminating articles and prepared memo in this regard on the spot.
3) On the basis of alleged recovery memo, case crime no. 88 of 2009, under Section 3/7 of Essential Commodities Act (for brevity hereinafter
referred as the Act) was registered against the revisionist at P.S. Bhagwanpur, District Haridwar. After completion of investigation, the Investigating
Officer filed charge sheet against the revisionist for the selfsame offence. Learned Magistrate took cognizance against the revisionist in respect of
selfsame offence, vide impugned order dated 06.06.2012.
4) Feeling aggrieved against filing of charge sheet and cognizance order, the revisionist approached this Court by way of filing Criminal Misc.
Application (C-482) no. 366 of 2014, Rajesh Kumar vs State of Uttarakhand and another. This Court was pleased to pass an interim order dated
24.04.2014 in favour of the applicant (present revisionist). Thereafter, the C-482 petition stands disposed of vide order dated 03.11.2015 with liberty to
the applicant to move an application for discharge at the time of framing of charge before the trial court. In compliance of said order, revisionist
moved an application under Section 239 of Cr.P.C. before the trial court seeking his discharge. Learned trial court having heard the submissions of
learned counsel for the parties, rejected the same vide impugned order dated 14.12.2015 and framed charge in respect of offence punishable under
Section 3/7 of the Act. Hence, present criminal revision.
5) I have heard learned counsel for the parties and perused the entire record.
6) A perusal of the FIR and the charge sheet would reveal that 4000 liters of high speed diesel was found in the possession of revisionist.
Undisputedly, the revisionist is having valid license, being no. HRH/06/2005 granted by the District Authority / District Supply Officer, Haridwar in his
favour. The said license was renewed from time to time and was still valid on the date raid was conducted at the residence of the revisionist. It has
been alleged in the FIR that the revisionist could not show valid license or any other document in regard to storage / selling of the diesel at the relevant
point of time. There is no denial by the prosecution that the said license granted for selling 4000 liters of high speed diesel was not granted to the
revisionist. From the very inception the revisionist is harping on the point that there is a license in his favour issued by the competent authority and he
purchased the high speed diesel from Laxmi Service Station, I.O.D. Bhagwanpur and while he was taking the diesel from the dealer to the business
place at village Ibrahimpur he was forced to stop in the midway due not inclement weather and as his residence is in between the two destinations, he
parked his tractor-trolley at his residence in village Hallumajra in the night of 04.05.2009. On next day morning, i.e., 05.05.2009, the raiding party
raided his residence and allegedly recovered 20 drums of 200 liters each filled with diesel and 20 empty drums along with some measuring articles.
The revisionist was not found selling the high speed diesel at his residence or at the place of recovery.
7) On an application filed by the revisionist under Section 239 of Cr.P.C., the Magistrate did not consider the grounds raised by the revisionist in his
application. The Magistrate concerned has recorded the findings that at the time of hearing of discharge application or framing the charge, the Court
cannot consider the evidence adduced by the accused. Further finding has been recorded that prima facie satisfaction of the court is sufficient to
frame charge.
8) Undisputedly, the revisionist is having the valid license of selling the high speed diesel. It is the contention of learned counsel for the State that the
revisionist could not show any license in his favour. It is surprising that the revisionist, who had a valid license issued by the Licensing Authority, would
not show the same to the raiding party. On the other hand, the contention of learned counsel for the revisionist is that license was shown to the raiding
party and thereafter a copy was provided to the I.O., but the I.O. did not place the same on record for the reasons best known to him.
9) Learned Magistrate has rejected the application for discharge, but no reason has been assigned for doing so in the impugned order. A perusal of the
material available on record would show that the revisionist was in possession of 4000 liters of high speed diesel for which a valid license has been
granted to him. Said fact has not been considered by the learned Magistrate. What learned Magistrate has observed is that the evidence led by the
accused cannot be considered at this stage and it can only consider the material produced by the prosecution. Learned trial court placing reliance upon
the decision rendered by Hon’ble Apex Court in State of Orissa vs Debendra Nath Pandhi (2005) 1 SCC 568, has held that this aspect of the
matter was dealt with by Hon’ble Supreme Court holding that at the time of framing charge or taking cognizance the accused has no right to
produce any material. Reliance was also placed on the judgment passed in the case of Palwinder Singh vs  Balwinder Singh AIR 2009 SC 887,
wherein their Lordships of Hon’ble Apex Court have held that charges can be framed also on the basis of strong suspicion. Placing reliance upon
the judgments (supra), the Magistrate concerned has rejected the application by impugned order dated 14.12.2015 and framed the charge of offence
punishable under Section 3/7 of the Essential Commodities Act against the revisionist.
10) So far as the ratio of the judgments (supra) is concerned, there is not quarrel on this point that defence evidence should be taken after the
prosecution evidence is concluded. But, there is a caveat to it. When an accused produces unimpeachable evidence in support of his defence at the
time of framing of charge or hearing on the discharge application, the court should consider it at that stage and the accused should be discharged if the
charge is found groundless. The court should not wait till the prosecution evidence is concluded, otherwise, it would lead to unnecessary trial against
the accused which would result in wasting valuable time and money of the litigant as well as the valuable time of the court.
11) In the present case, there is an admitted case that the revisionist is having the reasons to retail 4000 liters of diesel, for which license was granted
to him, and not a single liter of excess diesel was found from his possession and only on the pretext that 20 drums of the capacity of 200 liters of diesel
each and 20 empty drums, keep, pump and measuring equipments of 5 liter and 1 liter respectively were recovered from the revisionist, it is difficult to
presume that the revisionist is involved in the illegal business of selling diesel. As such, in view of this Court, the material produced is not sufficient for
proceedings against the revisionist.
12) The Hon’ble Supreme Court in Shoraj Singh Ahlawat vs State of U.P. AIR 2013 SC 52 while relying upon various decisions on said aspect
has observed as under:
“8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta2, Prafulla Kumar Samal8, Sajjan
Kumar3, Debendra Nath Pandhi7, Onkar Nath Mishra6, Shakson Belthissor4, and Rumi Dhar (Smt.)5, that while considering an application for
discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty
on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended
that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much
abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his
relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for
them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the
statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It
was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to
believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated
2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re-married on 30th October,
2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to protect the appellants
against harassment and the ignominy of a criminal trial.
9. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut
showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along
with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce
by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the
concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the
Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the
date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the
appellants. Appellant No.3 had, according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter
referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the
appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for
discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of
this Court in Union of India vs Prafulla Kumar Samal (1979) 3 SCC 4.
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of
them deserved to be discharged. Section 239 is as under:
“239. When accused shall be discharged.
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.â€
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it
considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the
police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the
Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such
Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by
the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra vs State (NCT of
Delhi) (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed
against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the
Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to
frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly
allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be
adopted by the Court at the stage of framing of charges or directing discharge in the following words:
“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding
out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that
stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a
ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong
suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the
offence alleged would justify the framing of charge against the accused in respect of the commission of that offence .â€
(emphasis supplied)
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka vs L. Muniswamy 1977 Cri.LJ 1125,
State of Maharashtra vs Som Nath Thapa 1996 Cri.LJ 2448 and State of M.P. vs. Mohanlal Soni 2000 Cri.LJ 3504, In State of Maharashtra vs Som
Nath Thapa 1996 Cri.LJ 2448 the legal position was summed up as under:
“if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for
framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge,
though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a
charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true
at that stage. â€
(emphasis supplied)
13. So also in Mohanlal’s case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to
be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding
against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the
accused. The following passage from the decision in Mohanlal’s case (supra) is in this regard apposite:
“8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for
proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for
convicting the accused.â€
14. In State of Orissa vs Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of
charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
“18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced…... Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of
charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put
forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage
of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that
the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite
the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce
materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the
accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing
the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record
of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused'
cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing
the submissions of the accused has to be confined to the material produced by the police.........
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right
to produce any material...â€
(emphasis supplied)
15. Even in Smt. Rumi Dhar (Smt.) vs State of W.B (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be
applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging
discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The
Court observed:
“...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the
allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong
suspicion in regard thereto shall subserve the requirements of law...
16. To the same effect is the decision of this Court in Union of India vs Prafulla Kumar Samal (1979) 3 SCC 4, where this Court was examining a
similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to shift and weigh
the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be
fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal
application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise
to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot
act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence
and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.â€
13) It is the paramount duty of the court to consider the prosecution and defence case at par. The court needs to consider at that stage whether there
is a ground for presuming that the offence has been committed by an accused and if there is a reasonable doubt in the mind of the Judge hearing the
criminal matter that the criminal case may not lead to conviction of the accused and continuance of the trial would be a futile exercise, the accused
should be discharged. The Legislature in its wisdom has made the provisions of discharge. So in appropriate cases where the court is prima facie of
the opinion that the materials produced are insufficient for convicting the accused, instead of framing charge against an accused which would lead to
unnecessary continuance of trial and would ultimately result in acquittal of the accused, the Magistrate should apply its judicial mind in a rationale way
after appreciating material evidence in the form of documentary or oral evidence collected by the prosecution. Similarly, the court should not ignore
the unimpeachable evidence adduced by accused at the time of hearing on the discharge application. The trial court at the time of hearing on
discharge application or framing of the charge should not act merely as a Post Office, but has to apply its judicial mind and should consider the total
effect of the evidence and the documents produced before him. The trial Judge at the same time is not supposed to work as a mouth piece of the
prosecution and should not continue with the trial on unfounded allegations or on unreliable evidence. Prima facie case is a sine qua non to proceed
with the trial.
14) Having heard learned counsel for the parties, I am of the opinion that the learned trial court committed an error in passing the impugned order,
insofar as it entered into the realm of appreciation of evidence only on mere suspicion that the diesel, including other articles, recovered from the
revisionist (as mentioned in the foregoing paragraph of the judgment) from the place for which he had no license to sell the diesel was unusual.
Learned trial court has completely failed to consider the compelling circumstances which compelled the revisionist to park his tractor-trolley in his
village, which happens to be on the way to the place where the diesel is supposed to be sold. In the opinion of this Court, merely on the basis of
suspicion that the revisionist had the intention to sell the diesel recovered from him at a place for which license was granted to him cannot be said to
be strong evidence. As such, the court below has erred in law in framing the charge against the revisionist.
15) In this view of the matter, this Court is of the considered opinion that when unimpeachable evidence of possessing a valid license was produced by
the revisionist at the time of hearing of the discharge application, the same ought to have been accepted as evidence in defence by the trial Judge.
Accordingly, the impugned order is unsustainable and is liable to be set aside. The criminal revision is allowed. The impugned order dated 14.12.2015
is hereby set aside.
16) Consequently, the entire proceedings of criminal case no. 1550 of 2014 (old no. 2699 of 2012), State vs Rajesh Kumar, under Section 3/7 of the
Essential Commodities Act, pending in the court of Addl. Chief Judicial Magistrate, Roorkee, District Haridwar are hereby dropped. The revisionist is
discharged of the charge of offence punishable under Section 3/7 of the Essential Commodities Act.
17) Let a copy of this judgment be sent to the trial court forthwith for compliance.
