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2021 DIGILAW 948 (KAR)

Pushparaj v. State

2021-11-16

V.SRISHANANDA

body2021
JUDGMENT : 1. Heard Sri Naveen Kumar for Sri S.B. Mukkannappa, learned counsel for the Revision Petitioner and Sri V.S. Vinayaka, learned High Court Government Pleader for the respondent - State. Perused the records. 2. The present Revision Petition is filed against the order passed by the learned Principal Sessions Judge, Chikkamagalur dtd. 25/1/2012 in Criminal Revision Petition No.73/2010 whereby the order passed by the learned Trial Magistrate in CC No.187/2009 dtd. 27/4/2010 on the file of the Civil Judge and Addl. JMFC, Tarikere, for discharging the accused by allowing the application filed under Sec. 239 of Cr.PC., is set aside and the matter is remitted back to the Trial Court for disposal in accordance with law. 3. Brief facts which are necessary for disposal of the Revision Petition are as under: A complaint came to be filed by the Tarikere police in Crime No.5/2009 for the offence punishable under sec. 379 of IPC contending that accused took about 400 to 500 matric tonnes of iron ore from Survey No.50 which is a Government land situated at Manchatavaru village by stealing the same and therefore, transported the same to Survey Nos. 53/1P, 54/2P, 55 and 56 belonging to him and dumped in an area of nearly 100 meters length, 7 meters breadth and 3 meters height. On the basis of the complaint filed by the Tahsildar, Tarikere, Lingadahalli police registered a case in Crime No.187/2009 for the offence punishable under Sec. 379 IPC. 4. The presence of the accused was secured and the accused filed an application under Sec. 239 Cr.PC., which on contest came to be allowed by the learned Magistrate by order dtd. 27/4/2010. Being aggrieved by the same, the State preferred Criminal Revision Petition before the learned Principal Sessions Judge, Chikmagalur in Criminal Revision Petition No.73/2010. 5. Learned Sessions Judge secured the records and after hearing the parties by order dtd. 25/1/2012 set aside the order passed by the learned Magistrate and remanded the matter for fresh consideration in accordance with law. It is that order which is under challenge in this Revision Petition. 6. 5. Learned Sessions Judge secured the records and after hearing the parties by order dtd. 25/1/2012 set aside the order passed by the learned Magistrate and remanded the matter for fresh consideration in accordance with law. It is that order which is under challenge in this Revision Petition. 6. The learned counsel for the Revision Petitioner vehemently contended that the learned Trial Magistrate has properly appreciated the materials available on record inasmuch as the case of the prosecution was hollow in nature and no case is made out to attract the offence under Sec. 379 of IPC which has not been properly appreciated by the learned Judge in the first appellate court in the impugned orders and thus sought for allowing the revision petition. 7. He further contended that the fact of extraction of iron ore is not in dispute and the same is not properly appreciated by the learned Judge in the first appellate court and sought for allowing the revision petition. 8. Per contra, learned High Court Government Pleader supported the impugned judgment and contended that irrespective of the fact that whether it is extracted from the private property or from the own property or from the Government land, in respect of iron ore, permission of the Government is necessary. In this regard, the learned Judge in the first appellate court has referred various judgments of the Hon'ble Apex Court and then remanded the matter for re-consideration by the learned Magistrate in accordance with law and therefore, the present Revision Petition needs to be dismissed. 9. In view of the rival contentions and having regard to the scope of the revisional jurisdiction, the sole point that would arise for consideration is: "Whether the order passed by the learned Principal Sessions Judge in Criminal Revision Petition No.73/2010 dtd. 25/1/2012 is sustainable in law? 10. In the case on hand, the fact of storing of the iron ore in a heap measuring 100 meters in length, 7 meters in breadth and 3 meters in height in Survey No.53/1P, 54/2P, 55 and 56 of Manchatavaru village, which is within the jurisdiction of the Lingadalli police is not in dispute. Whether at all, the Revision Petitioner had the licence to extract the iron ore or not is not clear from the material available on record. Whether at all, the Revision Petitioner had the licence to extract the iron ore or not is not clear from the material available on record. Admittedly, based on the complaint lodged by the former Member of the Legislative Assembly, the Tahsildar, Tarikere lodged a formal complaint with Lingadalli police and the police after thorough investigation, not only seized the iron ore stored in the aforesaid land, but also filed a charge sheet against the accused for illegally extracting the same and thereby the accused was charged with the offence punishable under Sec. 379 of IPC. 11. Whether at all, the iron ore was extracted from the Government land, then transported to the private land or whether the iron ore stored in the Government land was stolen away by the Revision Petitioner or not are all matters that is to be adjudicated after a full fledged trial. Admittedly, when the huge quantity of iron ore is seized from the land belonging to the Revision Petitioner without there being proper documents in that regard, itself would be enough to proceed with the trial under Sec. 379 of IPC and as such, the order passed by the learned Trial Magistrate was incorrect and the same has been reappreciated by the learned Sessions Judge in the Criminal Revision Petition. 12. Further, the learned Sessions Judge has relied on the judgments cited by the parties in detail in paragraph Nos.8, 9 and 10 and also in paragraph No.12 of the impugned order, wherein the learned Sessions Judge has categorically recorded a finding, that even though the place is a private property, whether the iron ore is extracted from the Government land is not clear from the materials available on record and the learned Trial Magistrate has not bestowed its attention to the said aspect of the matter. 13. The learned Sessions Judge has also recorded that when there is a specific case of the prosecution that accused has stolen iron ore from Survey No.50, the Trial Court has to consider the application filed under the Mines and Minerals Act as well and not carried away the charge sheet under Sec. 379 IPC alone. Under such circumstances, remanded the matter to the Trial Court for fresh consideration is not in accordance with law. Under such circumstances, remanded the matter to the Trial Court for fresh consideration is not in accordance with law. Even after re-consideration of the entire materials available on record, this court does not find any serious legal infirmity or perversity in recording such a finding by the learned Sessions Judge in the Revision Petition filed by the State. Accordingly, the point is answered in the Affirmative and pass the following: ORDER Criminal Revision Petition is dismissed