IMPORTANT POINT
The court clarified that charges under the Essential Commodities Act and IPC were not applicable due to misapplication of legal provisions regarding rationing and forgery.

ORDER :

1. The revision petitioner is the accused in Crime No. 1517 of 2012 of Kollengode Police Station charge-sheeted, quoting the offences under Sections 3 and 7(1)(a)(ii) of the Essential Commodities Act, 1955 (‘the Act’ for short) and 471 of Indian Penal Code (‘IPC’ for short) and Clause 5(a) of the Kerala Rationing Order, 1996. As per the order dated 24.12.2013 in CMP No. 6464 of 2013, the Court of the Judicial First Class Magistrate, Chittur, dismissed the discharge petition filed by the petitioner under Section 239 of the Code of Criminal Procedure (‘Cr.P.C.’ for short). Challenging the order, the petitioner approached this court with this revision.

2. The petitioner is a licensed ration dealer at Vadakanyapuram, within the limits of Kollengode Police Station. On the basis of prior information, the Sub Inspector of Police and party of Kollengode Police Station along with the Rationing Inspector of Chittur inspected the ration shop of the petitioner and found that there is a shortage of 176 Kg of wheat in the stock register. Accordingly, the crime was registered at Kollengode Police Station on 14.12.2012. On completion of the investigation, the final report was filed before the Court of the Judicial First-Class Magistrate, Chittur and on receipt of summons, at the appropriate stage, the petitioner filed the discharge petition. After hearing the parties and perusing the records, the learned Magistrate, as per the impugned order found that there are prima facie materials to attract the penal provisions.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

4. The learned counsel for the revision petitioner argued that the penal provision under the Essential Commodities Act alleged against the petitioner is under Section 7(1)(a)(ii). The said Section will attract, only if there is violation of any order of the Government as mentioned in Section 3 of the Act. The prosecution alleges that the petitioner has violated Clause 5(a) of the Kerala Rationing Order which is not applicable to a ration dealer. By pointing out the ingredients of the offence of forgery, the learned counsel argued that the materials on record are insufficient to frame charge for the offence under Section 471 IPC also.

5. On the other hand, the learned Public Prosecutor argued that on inspection by the Police party accompanied by the Rationing Inspector, a shortage of 176 Kgs of wheat was found in the register. This act of the petitioner would attract the penal provisions mentioned in the Police charge.

6. Sections 239 and 240 of the Cr.P.C. deals with discharge and framing of charge in cases instituted on a police report in warrant cases before a Magistrate. The sections read thus:

“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.

240. Framing of charge:

(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

7. The law on framing of charge and discharge is stated by the Apex Court in a number of decisions.

8. In Onkar Nath Mishra & Ors. v. State (NCT of Delhi) & Anr. (2008) 2 SCC 561, the Apex Court held thus:

“11. It is trite that at the stage of framing of charge the court is required to e