Karnataka High Court
Pulakeshi And Ors vs The State Of Karnataka on 8 February, 2023
Author: V Srishananda
Bench: V Srishananda
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CRL.P No. 201662 of 2022
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 8TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL PETITION NO. 201662 OF 2022
BETWEEN:
1. PULAKESHI S/O VITTAPPA BIJJAL
AGE. 65 YEARS, OCC. BUSINESS R/O ILAKAL, TQ.
HUNAGUND DIST. BAGALKOT PERMANENTLY AT
ILAKAL DHARMAGOUDA DIST. BAGALKOT
2. VRASHAB HISE S/O JINENDRA KUMAR HISE
AGE. 44 YEARS, OCC. BUSINESSMAN R/O MAHAVEER
ROAD, BAGALKOT DIST. BAGALKOT
3. B. NIRANJAN S/O PARASHIVAPPA
AGE. 53 YEARS, OCC. BUSINESSMAN
R/O VENKATESHWAR COLONY RAICHUR, DIST.
RAICHUR.
4. SAMPATARAJ JAIN S/O BABULAL JAIN
AGE. 64 YEARS,
OCC. BUSINESSMAN, R/O SHAHAPUR YADGIR DIST.
Digitally YADGIR
signed by B
NAGAVENI
Location:
5. HITESH KATHARIYA S/O MANASUKALAL KATHARIYA
High Court AGE. 58 YEARS, OCC. BUSINESSMAN
of Karnataka R/O NIJALINGAPPA COLONYRAICHUR.
6. BASAPPA S/O IRAPPA MANTYALA
AGE. 43 YEARS,OCC. BUSINESSMAN,
R/O MANJUNATH NAGAR, VIJAYAPURA.
7. SHIVANAND S/O PARAPPA NASHI
AGE. 54 YEARS,OCC. BUSINESSMAN
R/O K.K.NAGAR VIJAYAPURA
...PETITIONERS
(BY SRI. SHIVANAND V PATTANASHETTI., ADV.)
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CRL.P No. 201662 of 2022
AND:
THE STATE OF KARNATAKA
R/BY ADDL. SPP KALABURAGI BENCH-585107
(THROUGH APMC POLICE STATION)
DIST. VIJAYAPURA
...RESPONDENT
(BY SRI.GURURAJ V. HASILKAR, HCGP)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
QUASH THE ORDER OF TAKING COGNIZANCE AND ISSUE OF
PROCESS DATED 04.03.2016 PASSED IN C.C.NO.539/2016
(APMC PS CRIME NO.61/2014) BY THE JMFC IV COURT
VIJAYAPURA FOR THE OFFENCES PUNISHABLE U/SEC. 3 R/W 7
OF ESSENTIAL COMMODITIES ACT AND 3(5) (6) OF MOTOR
SPIRIT AND HIGH SPEED DIESEL (REGULATION OF SUPPLY
AND DISTRIBUTION AND PREVENTION OF MALPRACTICES)
ORDER, 1998 AND 3(1) OF KEROSENE (RESTRICTION ON USE
AND FIXATION OF CEILING PRICE) ORDER 1993, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. This petition is filed under Section 482 Cr.P.C., with the following prayer:
"WHEREFORE, for the reasons stated above amongst others, it is humbly prayed that the Hon'ble Court be pleased to quash the order of taking cognizance and issue of process dated:
04.03.2016 passed in C.C No.539/2016 (APMC PS Crime No.61/2014) by the JMFC IV Court Vijayapura for the offences punishable U/Sec.3 R/W -3- CRL.P No. 201662 of 2022 7 of Essential Commodities Act and 3(5) (6) of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) order, 1998 & 3(1) of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order 1993, in the interest of justice and equity."
2. Heard Sri Shivanand V. Pattanashetti, learned counsel for the petitioners and Sri Gururaj V. Hasilkar, learned High Court Government Pleader for the respondent - State and perused the records.
3. Brief facts of the case which are necessary for disposal of the petition are as under:
The Assistant Director of Food and Civil Supplies by name Sri Ramesh Devadigar, lodged a complaint against the petitioners in APMC Police Station, Vijayapur on 16.06.2014, which was registered in Crime No.61/2014 for the offence punishable under Sections 3 & 7 of the Essential Commodities Act and Section 3(5)(6) of the Moor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 & 3(1) of the Kerosene (Restriction on Use and Fixation of Ceiling Price) order, 1993.-4- CRL.P No. 201662 of 2022
4. The gist of the complaint averments reveals that on 16.06.2014 at about 9.00 a.m., the Commissioner, Food and Civil Supplies, Bengaluru, intimated to the complainant over telephone that the tankers instead of transporting diesel, are filled with blue colour kerosene oil which is meant for public distribution system and therefore, immediately he was required to visit IOC, Terminal point and inspect the tankers. On receipt of such information, the complainant, Sheristhedar of Food and Civil Supplies and Food Inspector, proceeded to the spot, where Indian Oil Corporation Terminal is situated in Bijapur and inspected the tankers. On inspecting the tankers bearing registration Nos: (1) GA-02 V 6761; (2) KA 25 C 5234; (3) KA 08 A 1818; (4) KA 23 A 3264; (5) AIC 5657; (6) KA 23 4792; (7) KA 04 6028; (8) KA 36 7215; (9) KA 28 B1809 . It is noticed that those tankers instead of using diesel for running the tankers, were using kerosene. Immediately, they seized the tankers at about 6.10 p.m. after confirming that they have violated the aforesaid provisions and lodged a complaint. The police after registering the case and after thorough investigation filed the charge sheet.
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5. The petitioner appeared before the learned Trial Magistrate and obtained bail. Thereafter, the learned Trial Magistrate took cognizance of the aforesaid offences and issued summons to the accused. The trial has not progressed before the Trial Court on account of the fact that on many occasions, all the accused persons/including the petitioners remained absent consistently and exemption applications were filed seeking their appearance is filed.
6. In the mean time, the petitioners have approached this Court challenging the order of taking cognizance on the following grounds:
"That, Petitioners are innocent persons, they have not all committed any offence much less as alleged in the Complaint, the complainant with an ulterior motive has filed a false case to harass the petitioners.
That, looking into the complaint averments absolutely there are no materials to attract the offences punishable U/Sec.3 R/w 7 of Essential Commodities Act and 3(5) (6) of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) -6- CRL.P No. 201662 of 2022 order, 1998 & 3(1) of Kerosene (Restriction on Use and Fixation of Ceiling Price) Order 1993.
That, it is settled principles of law that to attract the provisions of Sec.3 of Essential Commodities Act, the persons so commits should violate the order as passed U/Sec.7 of E.C Act. So, looking into complaint averments and charge sheet materials, the complainant not at all stated what was the order which was passed U/Sec.7 of the E.C Act was violated. Hence, the order of taking cognizance and issue of process is liable to be set aside.
That, while perusing the charge sheet materials the tankers were standing near the IOC terminal point, the petitioners are the owners of the respective tankers and they have engaged the respective drivers to run the vehicle. So, petitioners being the owners of the tankers not at all having any knowledge about the using of kerosene instead of diesel. Hence, looking into the materials at the most drivers of the respective vehicles are responsible for the alleged act not the petitioners.
That, in view of Sec.3 of Kerosene (Restriction on use and Fixation of Ceiling Price) Order 1993. No person shall use kerosene supplied under the Public Distribution System for any purpose other than cooking and illumination. But, -7- CRL.P No. 201662 of 2022 petitioners being the owners of the respective vehicles not at all instructed the drivers to use the kerosene instead of diesel. Hence, the proceedings initiated against the petitioners are liable to be quashed.
That, looking into entire materials absolutely there are no materials to attract the provisions of 3(5)(6) of the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order 1998.
That, absolutely there are no materials to show that petitioners are instructed the drivers of the respective vehicle to use the kerosene instead of diesel.
That, while perusing the entire complaint and FIR prima-facie there are no material to make out a case against the petitioners, the initiation of criminal proceedings would be abuse of process of court and thus liable to be quashed, court proceedings ought not to be permitted to degenerate into a weapon of harassment of prosecution.
That, it is nevertheless desirable for the court to see that innocent persons are not deliberately roped in so as to suffer the rigor of trial.-8- CRL.P No. 201662 of 2022
That, it is well settled preposition of law that continuation of any proceedings which would ultimately end in acquittal is abuse of process and is waste of precious time of Court. So, the proceeding in the Lower Court may be quashed.
That, it is instructed that, petitioners have not filed any other petition or appeal for the same cause of action, except the present petition.
That, several other grounds shall be urged at the time of argument."
7. Re-iterating the grounds urged in the petition Sri Shivanand Pattanshetti, vehemently contended that the present petitioners being the owners of the lorry, who are not aware as to the alleged filling of kerosene in the diesel tank for running the trucks and therefore, they are not responsible for the aforesaid offences as the action taken by the Investigating Agency is in the nature of invoking the doctrine of vicarious liability which is alien to the criminal jurisprudence and therefore, sought for quashing of further proceedings.
8. Per contra, learned High Court Government Pleader opposes the petition grounds by contending that under the provisions, not only the driver of the vehicle, but the owners of -9- CRL.P No. 201662 of 2022 the vehicle as well is to be prosecuted and it is the case of the petitioners that they are not at all aware of the aforesaid violations, it is for them to establish before the Trial Court by placing such necessary evidence on record and it is too premature for this Court to quash the further proceedings and sought for dismissal of the petition.
9. In view of the rival contentions of the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is seen that the alleged crime is of the year 2015. The trial has not progressed before the Trial Court for want of presence of the petitioners before the Trial Court. Cognizance was taken by the learned Trial Magistrate on 30.06.2014. No reason is forthcoming as to what made the petitioners to approach this Court after eight years of taking cognizance.
10. Further, the contentions urged on behalf of the petitioners that they are no way responsible for the alleged incident cannot be countenanced in law inasmuch as the provisions invoked by the prosecution would definitely make out a case for the owners of the vehicle also responsible for the
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CRL.P No. 201662 of 2022offence and therefore, the contention of the learned counsel petitioner that the prosecution has invoked the doctrine of vicarious liability which is alien to the criminal jurisprudence cannot be countenanced in law in the case on hand. Further, non arraigning the drivers of the seized tankers would not ipso facto act as a deterrent for the prosecution to proceed with the case as against the petitioners herein.
11. Further, expressing the opinion on the merits of the matter, would definitely hamper the rights of the parties in one way or the other.
12. As such, desisting from holding mini trial, when the material on record is analyzed, the grounds urged in the petition are hardly sufficient to invoke the jurisdiction of the special powers of this Court under Section 482 Cr.P.C., to quash the pending criminal proceedings. Accordingly, pass the following:
ORDER The Criminal Petition No. is dismissed.
Sd/-
JUDGE PL* List No.: 1 Sl No.: 64