THIRTHARAJ UPENDRA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This petition by the accused is directed against the order dated 26-5-1981 passed by the Judicial Magistrate I Class (II Court), Hubli in C.C. No. 869 of 1981 directing to frame a charge against him for an offence punishable under Ss. 379 I.P.C.

(2.) On the basis of a complaint a charge sheet was placed by the Sub-Inspector of Police (Crime) Sub-Urban Police Station Hubh, against the accused for offences under Ss. 379 and 411 I.P.C. The accused was furnished with copies of the documents of prosecution as required under law. The prosecution as also the learned counsel for the accused were heard before framing of the charge. Thereafter the learned Magistrate passed the impugned order, rejecting the prayer of the accused that he may be discharged as the matter involved in the case is one of civil nature, and directed a charge to be framed against the accused for an offence punishable under S. 379 I.P.C. It is the legality and correctness of the said order that is being assailed in this petition.

(3.) Sri G. S. Bhat, learned counsel appe" aring for the petitioner-accused, contended that the impugned order cannot be sustained in law inasmuch as the Magistrate has not considered all the materials that were placed before him as required under S. 239 Cr.P.C. He also submitted that the accused is no other than the partner of the firm Sudha Agencies and that he being a partner of the aforesaid firm, the question of his committing theft of the Luna Moped in question did not arise at all and therefore the prosecution has not made out any offence against him and the proper order that should have been passed by the Magistrate was that the charge was groundless and hence he should have discharged the accused of the aforesaid offence. In support of his above contention he relied upon a decision in Century Spinning & Mfg. Co. Ltd. v. State of Maharashtra (1) wherein the Supreme Court while considering the provisions of S. 251-A Cr.PC. (Old) which corresponds to S. 239 Cr.PC. (New Code) has observed thus :