MANU/TN/0148/1996

Equivalent Citation: 1997C riLJ41, 1996-2-LW(C rl)475

IN THE HIGH COURT OF MADRAS

Crl.R.C. No. 843 of 1993 and Crl.R.P. No. 841 of 1993
Decided On: 22.03.1996
Appellants: Harichandran
Vs.
Respondent: The State
Hon'ble Judges/Coram:
M. Karpaga Vinayagam, J.
Counsels:
For Appellant/Petitioner/Plaintiff: M. Thomas/Acquines, Adv.
For State: Public Prosecutor
Case Note:
Criminal - Discharge - Section 239 of Criminal procedure Code,
1973(Cr.P.C.) - Application filed by Petitioner in respect of his discharge
was dismissed by Judicial Magistrate on ground that application was not
maintainable - Hence, this Revision Petition - Whether, order passed by
lower Court was valid - Held, Petition filed before lower Court would show,
that prayer of Petitioner was only regarding 'discharge' - However, instead
of putting under Section 239 Cr.P.C. he had put Section 258 Cr.P.C. which
related to summon cases - Wrong quoting of Section would not got
disentitle Petitioner in getting discharge from criminal case to which he
was otherwise entitled under Section 239 Cr.P.C - Thus, order passed by
lower Court could not be valid - Petition partly allowed. Criminal - Proving
of Charges - Sections 427 and 379 of Indian Penal Code, 1860(I.P.C.) -
Whether, there were any materials to show that charges could be framed
for offences under Sections 427 and 379 of I.P.C., and Rule 21 of Tamil
Nadu Minor Mineral Concession Rules, 1959 - Held, on and before 17th
August 1990, Petitioner/Accused with intention to cause wrongful loss to
Government, without obtaining permission from Government, illegally
quarried from his land and transported rocks for commercial purpose - Even
according to prosecution, land in question belonged to Petitioner and patta
for land stands only in name of Petitioner - Therefore, there could not be
any charge either under Section 427 IPC or under Section 379 IPC - Thus,
Magistrate was directed to go on with case against Accused, in respect of
offence under Rule 21 of Tamil Nadu Minor concession Rules 1959, alone -
Petition partly allowed. Ratio Decidendi"Authorities shall pass order of
discharge after taking into consideration of facts and circumstances of
case."
ORDER
M. Karpaga Vinayagam, J.
1 . This revision has been directed against the order passed in Crl.M.P. No.
4685/1992 in C.C. No. 382 of 1992, on the file of Judicial Magistrate No. 1,
Kuzhithurai.

30-10-2019 (Page 1 of 3) www.manupatra.com Khaitan and Co.

2. The Petitioner Harichandran, son of Joseph is the accused in CC No. 382 of 1992,
on the file of Judicial Magistrate No. 1, Kuzhithurai on the charge sheet filed by the
respondent/Police, Kaliakkavilai Police Station, Kanyakumari district, for the offences
under Section 427 and 379 I.P.C. and Rule 21 of the Tamil Nadu Minor Mineral
Concession Rules, 1959.
3 . Copies of documents were furnished to the petitioner/accused. Thereafter an
application has been filed by the petitioner in CC No. 382 of 1992, for discharge,
contending that he is the absolute owner of the Six acres of patta land in S. Nos.
507/1, 507/2, and 507/3 in Vilsvancode village, Edapilankad, Madichal, Kanyakumari
District, and that he is an agricultural, doing agricultural work and of the six acres
only three acres are cultivable and the rest of the area could not be cultivated, in
view of the density of rocks and that these rocks were removed from the area and
used as fencing material. He also contended in the said petition, that the petitioner
has taken loan from the agricultural Co-operative Society, for land reclamation and
for agricultural production in the above said lands and that the petitioner owns
properties in Nullicoud and Pedamthalamoodu in Old S. No. 1064 and 1152 and when
the petitioner tried to remove rocks and for using it for his own purpose, the
respondent filed the said criminal case and that the charge sheet along with the
papers filed by the police itself would show that the property belonged to the
petitioner and as such, removal of rocks from his own lands would not be said to be
the offences under Sections 427 and 379 I.P.C., and Rule 21 of Tamil Nadu Minor
Mineral Concession Rules, 1959.
4 . This application in the lower Court was objected to by the prosecution on the
ground that application filed under Section 258 Cr.P.C. is misconceived, since Section
258 Cr.P.C. will be applicable only to summons case, that too, for stopping the
proceedings, whereas this is a warrant case and the police has filed the charge sheet
and as such, the application could not be entertained.
5 . On the basis of the above objection, the learned Judicial Magistrate No. 1,
Kuzhithurai, with out going through the merits of the case, simply dismissed, it on
the ground that the application was not maintainable.
6. I have heard the learned Counsel appearing on either side.
7 . One important aspect has been over looked by the Court below viz., in warrant
cases, where police filed chargesheet the accused/petitioner is entitled to file an
application for discharge under Section 239 Cr.P.C., before framing of the charges. A
perusal of the petition filed by the petitioner before the lower court would show, that
his prayer in the petition is only 'discharge'. But instead of putting the appropriate
Section, viz. Sec. 239 Cr.P.C. he has put a wrong Section viz. Sec. 258 Cr.P.C. which
relates to summon cases. Wrong quoting of Section would not got disentitle the
petitioner in getting discharge from the criminal case to which he is otherwise
entitled under Section 239 Cr.P.C. So, I am of the view, that the petition filed for
discharge by the petitioner, before the lower court is to be considered on merits and
the order of the lower Court, accepting the contention of the prosecution cannot be
said to be valid.
8. The next question that arises for consideration is whether there are any materials
to show that charges could be framed for the offences under Sections 427 and 379
I.P.C., and Rule 21 of the Tamil Nadu Minor Mineral Concession Rules, 1959. The
facts of the case are that on and before 17-8-1990, at Edapanamkala, the
petitioner/accused Harichandran with an intention to cause wrongful loss to
Government, without obtaining permission from the Government, illegally quarried

30-10-2019 (Page 2 of 3) www.manupatra.com Khaitan and Co.

from his land and transported rocks for commercial purpose, thereby causing a
wrongful loss to the tune of Rs. 10,000/- to the Government and committing the
offences punishable under Secs. 427 and 379 IPC, and Rule 21 of the said Rules.
9. I have gone through the charge sheet, the statement recorded under Section 161
Cr.P.C., F.I.R., and other documents. Even according to the prosecution, the said land
in question belonged to the petitioner and the patta for the said land stands only in
the name of the petitioner, and as such there is no dispute regarding the ownership
of the property or possession of the same by the petitioner. In such circumstances
there could not be any charge either under Sec. 427 IPC or under Sec. 379 IPC; since
it cannot be contended that the petitioner committed any mischief and thereby caused
loss or damage and he committed theft.
10. Mr. S. Manimaran, learned Government Advocate, fairly submits that the offences
under Sections 427 and 379 IPC were not made out against the petitioner, in view of
the clear admission of the prosecution with regard to the title and ownership of the
petitioner over the property as per the chargesheet. But, at the same time, learned
Government Advocate vehemently contended that Rule 21 of the said Rules provides
penalty for unauthorised quarrying in ryotwari lands and that whenever quarrying
operations are undertaken without giving notice as required by Rule 19, the
registered holder, the persons (tenants or lessees) in actual possession of the land
and the Contractor shall be jointly and severally liable to pay enhanced seigniorage
fee leviable by the District Collector or in the alternative for punishment on
conviction for a term which may extend to Six months or a fine which may extend to
Rupees 1,000/- or with both, and as such the materials available in this case, viz.
statements under Sec. 161 Cr.P.C. F.I.R. would definitely show that offence
punishable under Rule 21 of the said Rules is made out and as such, the proceedings
should go on. He further submitted that though Rule 21 has been subsequently
deleted in 1994, the same was in existence when the offence was committed, viz.
8/90, and therefore, the trial court could go on with the trial in respect of such
contravention of Rule alone.
1 1 . In that fact situation, I am of the view, that the order of the lower court,
dismissing the discharge petition, without going into the merits of the case, as
discussed in the above paragraphs, is not valid in law and as such it is set aside. It is
also to be pointed out that as fairly submitted by the learned Government Advocate,
there is not material to prove the charges under Sections 379 and 427 I.P.C.
Therefore, the learned Magistrate is directed to go on with the case against the
accused, in respect of the offence under Rule 21 of the Tamil Nadu Minor concession
Rules 1959, alone. With these observations, the revision is partly allowed and the
learned Magistrate is directed to dispose the matter as expeditiously as possible,
since the matter relates to the year 1990.
12. Petition partly allowed.

© Manupatra Information Solutions Pvt. Ltd.

30-10-2019 (Page 3 of 3) www.manupatra.com Khaitan and Co.