The petitioner calls in question an order dated

19.10.2020 passed in C.C.No.1701/2018, which declines

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.

2.

Heard the petitioner (party-in-person) and the

learned HCGP Smt. K.P. Yashodha appearing for the

respondent.

[

3.

Brief facts leading to the filing of present

petition, as borne out from the pleadings, are as follows:

On 24.06.2015, a complaint is registered against the

petitioner for the aforesaid offences. On 20.11.2016, the

- 4 -

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:

"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 charge-

sheet 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

- 5 -

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.

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:

"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

- 6 -

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"

The Hon'ble Supreme court in the decision

of Superintendent and Remembrance of

Legal Affairs, West Bengal Vs. Anil Kum