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2015 DIGILAW 433 (KAR)

Nandishwar Kumbar v. State of Karnataka

2015-04-15

K.N.PHANEENDRA

body2015
Order : K.N. Phaneendra, J. 1. The petitioner has approached this Court seeking quashing of the order dated 25-8-2011 in taking cognizance and issuing summons to the petitioner in CC No. 452 of 2011 for the offence punishable under Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986. Heard the learned Counsel appearing for the parties and perused the records. 2. As could be seen from the order sheet, it is noticed that now the case is set down for recording of the plea of the accused. 3. The learned Counsel for the petitioner seriously raised several grounds before this Court with regard to the contradictions in the statement of the witnesses including the statement of the child and her parents recorded by the jurisdictional Magistrate. Further, it is contended before this Court that the petition itself is not maintainable as the same is violative of Section 10 of the Act read with Rule 17 of the Child Labour (Prohibition and Regulation) Rules, 1988 as the age certificate has not been issued by the Competent Authority. Apart from that, he also raised a contention that the learned Magistrate has not properly appreciated the statement of the witnesses and also the complainant has not provided with any witness list along with the complaint. Therefore, the cognizance taken by the jurisdictional Magistrate itself is vitiated. For all these reasons, he prayed that the order dated 25-8-2011 is liable to be quashed. 4. As the matter has already reached the stage of recording of plea, at this stage, I do not want to express any of my opinion with regard to the merits or demerits of the case. Therefore, the petitioner is at liberty, if necessary to make an application for discharge before the jurisdictional Magistrate on the grounds urged before this Court and the learned jurisdictional Magistrate has to hear the said application if filed and dispose off the same before recording the plea of the accused. 5. It is a well-settled principle of law rendered by the Hon'ble Apex Court in a decision between Bhushan Kumar and Another v State (NCT of Delhi) and Another AIR 2012 SC 1747 : (2012)5 SCC 424 : (2012)2 SCC (Cri.) 872 :2012 Cri. 5. It is a well-settled principle of law rendered by the Hon'ble Apex Court in a decision between Bhushan Kumar and Another v State (NCT of Delhi) and Another AIR 2012 SC 1747 : (2012)5 SCC 424 : (2012)2 SCC (Cri.) 872 :2012 Cri. L.J. 2286 (SC): 2012 AIR SCW 2476, that even in a summons case, the accused claims that he shall be discharged, the Magistrate has to go through the materials available on record that come to a definite conclusion whether there are sufficient grounds to record the plea of the accused and to proceed against the accused. If the materials placed before the Court are insufficient to record the plea of the accused and proceed against the accused, then the accused has to be discharged by the Court, invoking the powers under Section 239 of Criminal Procedure Code, 1973. 6. The learned Counsel for the petitioner also contended that petitioner is working as Inspector of Police, Lokayukta and he has got lot of responsibility and therefore, he could not attend the Court regularly. Therefore, there may a direction to the jurisdictional Magistrate to exempt for his appearance. However, this Court in fact cannot direct the jurisdictional Magistrate to exercise his powers in a particular manner. It is the discretion of the jurisdictional Magistrate, if such application is filed, to act depending upon the facts and circumstances of each case. It would only suffice if I direct the jurisdictional Magistrate to expeditiously deal with and dispose off the same, if such an application is filed. With these observations the petition stands disposed off giving liberty to the petitioner to make necessary application before the jurisdictional Magistrate seeking for his discharge.