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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1ST DAY OF AUGUST 2014
BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 101259/2014
BETWEEN:
S.V.JAGADISH
PRESENTLY WORKING AS MANAGER
M/S. KONKAN STORAGE SYSTEMS
PRIVATE LTD.,
SEA BIRD ROAD, BAITHKOL,
KARWAR
DIST: UTTAR KANNADA
R/O. NEAR DURGADEVI TEMPLE
DEVALLIWADA, NANDANAGADDA,
DIST: UTTAR KANNADA
... PETITIONER
(BY SRI : J S SHETTY & ASSOCIATES)
AND
KARNATAKA STATE POLLUTION CONTROL BOARD
R/BY ITS REGIONAL OFFICER
(DEPUTY ENVIRONMENT OFFICER)
SRI GOPALKRISHNA B SANATANGI
CIVIL COURT ROAD, KARWAR
... RESPONDENT
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING THAT THE ENTIRE PROCEEDINGS OF
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THE C.C.NO.234/2006 (P.C.NO.62/2006) PENDING ON THE
FILE OF THE JMFC II-COURT, KARWAR, INSTITUTED BY
THE RESPONDENT, BE QUASHED BY ALLOWING THIS
CRIMINAL PETITION.
I.A. NO.1/2014 IS FILED FOR GRANT OF STAY.
THIS PETITION A/W. I.A. COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner approached this Court seeking quashing of the entire proceedings in CC No.234/2006, pending on the file of the JMFC Second Court, Karwar.
2. Heard the arguments of the leaned counsel for the petitioner. Perused the records.
3. The notice to be issued to the respondent is dispensed with as there is no right accrued to the respondent in this case, as this Court is not quashing the entire proceedings pending before the trial Court, only setting aside some irregular procedure followed by the learned Magistrate, while dealing with the matter. 3
4. The records disclose that the respondent - Karnataka State Pollution Control Board, lodged a private complaint under Section 200 Cr.P.C., alleging the offences under Sections 25, 26 and 44 of the Water (Prevention and Control of Pollution) Act, 1974. There is no need for this Court to deal with the factual matrix of this case in detail. After lodgment of the complaint, the learned Magistrate took cognizance and issued a process to the petitioner herein who appeared before the Court and contested the proceedings. The petitioner has been representing before the Court through his Advocate. The records disclose that the learned Magistrate on so many occasions, posted the case for evidence, before framing of the charge. On 3/7/2014, the learned Magistrate has passed the order in the following terms:
"both the parties were present, complainant examined as PW-1, EXs.P1 to P10 were marked and learned Magistrate perused records and held that the prima facie case was made out, hence, posted the case for 4 framing of the charges and posted the case to 30/7/2014".
5. The learned Counsel brought to my notice that though this Court is not quashing the entire proceedings in the above said criminal case, nevertheless, exercising the revisional jurisdiction under Section 401 even Sue-motto Court can set right the irregularities committed by the learned Magistrate, in not following the procedure properly under Sections 244 and 245 of Cr.PC. He contended that no opportunity was provided to the accused to cross- examine PW-1 and also counter the documents marked at EXs.P1 to P10, in order to demolish the case of complainant, at the threshold, even without divulging his defence at that stage. Further, added to that the learned Magistrate has not passed any order with regard to how the Magistrate was satisfied with regard to the existence of a prima facie case. Mere using of the word 'prima facie' in the order is not 5 sufficient and it should be by means of objective satisfaction of the Magistrate, under Section 245 of Cr.P.C.
6. Having heard the arguments of the learned Counsel, now, this Court has to examine, what procedure the Magistrate ought to has followed before proceeding to order for framing of the charges. In a case instituted otherwise than the police report, the Magistrate has to follow Section 244 of Cr.P.C., and he has to record the evidence of the prosecution before framing of the charges. The section reads as follows:-
"244. Evidence for prosecution.
(1) When, in any warrant-case instituted other wise than on a police report the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summon to any of its 6 witnesses directing him to attend or to produce any document or other thing."
7. This particular provision clearly mandates that in a warrant case otherwise than a police report, after appearance of the accused, the Magistrate shall proceed to hear the prosecution and take all evidence as may be produced in support of the prosecution. That clearly indicates that the examination of all the witnesses is absolutely necessary, before proceeding further in the case. After recording of such evidence of the prosecution, the Magistrate may on an application of prosecution issue summons to any of the witnesses directing him to attend or to produce any document or other thing. This also makes it clear that the examination of the complainant alone is not sufficient under Section 244 of Cr.P.C. The complainant has to examine all his witnesses and produce all the documents he proposed to rely upon. The idea behind this provision under Section 244 of Cr.P.C. is that in a case instituted on the police repot, the police would investigate the matter and 7 submit the entire charge sheet papers under Section 173 of CR.P.C. and the entire charge sheet papers would be provided to the accused under Section 207 of CR.P.C. so as to prepare himself for the trial of the Case. He would be knowing what exactly the case of the prosecution and how many witnesses the prosecution would like to examine before the Court and what are the documents it proposes to rely upon so that the accused can prepare himself for an effective trial before the Court. So far as the case which are instituted otherwise than the police report, this opportunity would not be there to the accused person, unless the Court enquires into the matter, records the statements of the witnesses and the complainant and also the complainant producing all his documents before the Court. So this procedure enable the accused persons in order to know what exactly case of the complainant and how he would like to prove his case before the Court, how many witnesses he would like to examine during the course of the trial, and what are the documents he proposes to place before the 8 Court. Therefore, it is incumbent on the Magistrate under Section 244 of Cr.P.C., to call upon the complainant to lead evidence on his side, by examining the complainant and other witnesses and also by producing the documents, if necessary, before the Court so as to enable the accused person, an opportunity to go through the materials on record. After recording the evidence in such a manner, if the Magistrate is satisfied, then the Magistrate has to pass an order, necessarily, under Section 245 of Cr.P.C. Section 245 rules as follows:-
"245. When accused shall be discharged.
(1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging the 9 accused at any previous stage of the case if, for reasons to be recorded, Magistrate considers the charge to be groundless."
8. This particular provision empowers the Magistrate to look into the evidence recorded by him, under Section 244 of Cr.P.C. and documents produced. Thereafter by recording the reasons as to whether any case is made out, against the accused person to proceed against the accused person for putting the accused person on to the trial he can order to frame charges. If the Magistrate is of the opinion, that no case as against the accused has been made out, which even if unrebutted would warrant his conviction, the Magistrate shall discharge the accused person at the threshold itself. Sub clause 2 of Section 245 also further empowers that the Magistrate for discharging the accused person, even at any previous stage of the case, if for reasons to be recorded by the Magistrate, if he considers the charge to be groundless. Therefore, this unfettered powers given to the learned 10 Magistrate has to be exercised properly and in accordance with law and procedure. After recording the evidence under Section 244 of Cr.P.C., it is bound and duty of the learned Magistrate to record his reasons, whether the accused is liable to be discharged or charges shall be framed against him. If no orders are passed under Section 245 of Cr.P.C., it becomes a serious irregularity affecting the rights of the accused persons. In this particular case, no such exercise has been taken up by the learned Magistrate. As could been seen from the orders dated 3/7/2014, the learned Magistrate very casually and cryptically stated that he has examined the complainant as PW-1 and Exs.P1 to P10, were marked and there was prima facie case made out, hence, he proceeded to order for framing of the charges. But, the learned Magistrate has not at all recorded his satisfaction as to how he came to the conclusion that there is a prima facie case is made out. It is not the mere satisfaction of the learned Magistrate in one sentence, but, the Magistrate has 11 to record how the evidence recorded by him, if unrebutted would be sufficient to convict the accused person.
9. Therefore, in my opinion, the order passed by the learned Magistrate, without recording his reasons is illegal and it has to be set aside by this Court, though not prayed by the petitioner.
10. The another important aspect to be looked into is that whether the accused is entitled to cross-examine the witnesses or the complainant on the evidence, recorded under Section 244 of the Cr.P.C. Though there is no absolute right is created, but, the wordings used in section 244 is 'evidence' not a statement of the complainant. The evidence, in my opinion, includes not only the examination- in-chief, but, also cross examination. The specific words used evidence for prosecution creates certain rights on the accused persons to cross-examine the witnesses. Therefore, though there is no absolute right to cross examine before the charge is framed, but, the section does not prohibit the same 12 and the Magistrate should not refuse to allow the cross examination of the prosecution witnesses. This would definitely serve two purposes, the one purpose is that the accused can cross examine the witnesses in order to show to the Court that the very basis for the complaint and the evidence recorded by the Court is not sufficient to proceed against him and the said evidence even if it is unrebutted is not sufficient for the purpose of convicting the accused person. The second purpose is the accused at the threshold, if he is permitted to cross examine the witnesses, a legal lapses on the part of the complainant can also be brought to the notice of the Court and the Court can take appropriate notice of the irregularities or any legal hurdles to proceed against the accused person by framing the charge. Therefore, in my opinion, the Magistrate ought to have provided an opportunity to the accused to cross-examine the witnesses and thereafter, he should have passed an order under Section 245 of Cr.P.C., before ordering to frame charges against the accused persons.
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11. Under the above said circumstances, the order passed by the learned Magistrate date 3/7/2014 is illegal and the same is liable to be set aside.
12. With the above said observations, a direction is issued to the learned Magistrate to call upon the complainant to examine any of the witnesses whom he would like to examine and produce any other documents, which he intends to produce before the Court so as to enable the accused to know about the exact case of the complainant. The learned Magistrate has to provide an opportunity to the accused to cross examine the PW-1 and any of the witnesses and then the Magistrate has to pass appropriate orders under Section 245 of Cr.P.C., before proceeding to frame charges against the accused person. With these observations, the petition is hereby partly allowed.
Sd/-
JUDGE VMB/