1. The revision petitioner is the accused in Crime No.1517 of 2012 of Kollengode Police Station charge-sheeted, quoting the offences under Sections 3 and 7(1)(a)(ii) of the Essential Commodities Act, 1955 (‘the Act’, for short) and 471 of Indian Penal Code (‘IPC’ for short) and Clause 5(a) of the Kerala Rationing Order, 1996. As per the order dated 24.12.2013 in CMP No.6464 of 2013, the Court of the Judicial First Class Magistrate, Chittur, dismissed the discharge petition filed by the petitioner under Section 239 of the Code of Criminal Procedure (‘Cr.P.C’ for short). Challenging the order, the petitioner approached this court with this revision.

2. The petitioner is a licensed ration dealer at Vadakanyapuram, within the limits of Kollengode Police Station. On the basis of prior information, the Sub Inspector of Police and party of Kollengode Police Station along with the Rationing Inspector of Chittur inspected the ration shop of the petitioner and found that there is a shortage of 176 Kg of wheat in the stock register. Accordingly, the crime was registered at Kollengode Police Station on 14.12.2012. On completion of the investigation, the final report was filed before the Court of the Judicial First-Class Magistrate, Chittur and on receipt of summons, at the appropriate stage, the petitioner filed the discharge petition. After hearing the parties and perusing the records, the learned Magistrate, as per the impugned order found that there are prima facie materials to attract the penal provisions.

3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

4. The learned counsel for the revision petitioner argued that the penal provision under the Essential Commodities Act alleged against the petitioner is under Section 7(1)(a)(ii). The said Section will attract, only if there is violation of any order of the Government as mentioned in Section 3 of the Act. The prosecution alleges that the petitioner has violated Clause 5(a) of the Kerala Rationing Order which is not applicable to a ration dealer. By pointing out the ingredients of the offence of forgery, the learned counsel argued that the materials on record are insufficient to frame charge for the offence under Section 471 IPC also.

5. On the other hand, the learned Public Prosecutor argued that on inspection by the Police party accompanied by the Rationing Inspector, a shortage of 176 Kgs of wheat was found in the register. This act of the petitioner would attract the penal provisions mentioned in the Police charge.

6. Sections 239 and 240 of the Cr.P.C deals with discharge and framing of charge in cases instituted on a police report in warrant cases before a Magistrate. The sections read thus:

“239. When accused shall be discharged.—If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge.—(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

7. The law on framing of charge and discharge is stated by the Apex Court in a number of decisions.

8. In Onkar Nath Mishra & Ors v. State (NCT of Delhi) & Anr [(2008) 2 SCC 561], the Apex Court held thus:

“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.”

9. This legal position was later reiterated by the Apex Court in Sheoraj Singh Ahlawat & Ors v State Of U.P.& Anr [(2013) 11 SCC 476].

10. In State By Karnataka Lokayukta Police v M. R. Hiremath [(2019) 7 SCC 515] the Apex Court held that at the stage of considering an application for discharge, the Court must proceed on the assumption that the materials that have been brought on records by the prosecution are true and evaluate the materials in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence.

11. In the light of the above-settled position of law let me now consider whether the materials on record, if accepted as a whole, would attract the ingredients necessary to constitute the offence. As per the final report, the petitioner has violated Clause 5(a) of the Kerala Rationing Order, 1996 and hence he has committed the offence under Section 3 r/w section 7(1)(a)(ii) of Essential Commodities Act. But it is interesting to note that neither Kerala Rationing Order, ‘1996’ nor clause ‘5(a)’ is available in the statute book. What is available is ‘Clause 5A’ of the Kerala Rationing Order, ‘1966’. At the time of hearing, the learned public prosecutor was also not able to produce the Kerala Rationing Order, 1996 for the perusal of this court, though existence of such an order is denied by the revision petitioner.

12. The Kerala Rationing Order, 1966 was amended as per the Kerala Rationing (Amendment) Order 1996 as per Kerala Gazette notification dated 18.05.1996 bearing No.7928/B1/94/F & SCD. But by that amendment, Clause 45 of Kerala Rationing Order, 1966 alone was amended. No changes were made to Clause 5A or Clause 5 of the Kerala Rationing Order, 1966.

13. Clause 5A of the Kerala Rationing Order, 1966 reads thus:

“5A. No person shall on or (after the 17th of August 1967) have in his control or possession any ration rice or ration wheat (any product of ration rice or ration wheat) in excess of the quantity to which he is entitled for a period of four weeks on the authority of his ration card or other ration document issued to him or on his behalf.

Explanation: - For the purpose of this clause, ‘ration rice’ or ‘ration wheat’ means rice or wheat issued-

(a) from the depots of the Food Corporation of India to authorised wholesale distributors or authorised retail distributors; or

(b) by authorised wholesale distributors to authorised retail distributors or establishments; or,

(c) by authorised retail distributors to card holders or establishments].”

14. The allegation against the petitioner is that he did not enter the sale of 176 kgs of wheat in the stock register or in other words there was a shortage of 176 Kgs of wheat in the actual stock. A plain reading of Clause 5A of the Kerala Rationing Order, 1966 would make it clear that the clause is intended to prevent hoarding of ration items such as ration rice and ration wheat in excess of that allotted to an authorised wholesale distributor or authorised retail distributor or establishment or card holder. Shortage in the stock in the ration shop or omission to make entry in the stock register will not fall under Clause 5A of the Kerala Rationing Order, 1966. Consequently, the penal provisions incorporated under the Essential Commodities Act also will not attract in this case.

15. Clause 5 of the Kerala Rationing Order reads that except as otherwise provided by the Order, a rationed article shall be obtained from an authorised wholesale distributor or authorised retail distributor on or after the rationing date only by means of a rationed document and only up to the quantity in relation to the article as represented by the unit specified in the rationed document. A proviso is also incorporated in the Clause restricting the distribution of rationed article other than paddy, rice and wheat on such scale or basis as the Government may direct from time to time. This Clause in the Kerala Rationing Order, 1966 is also not applicable to the facts of the case herein. It is even without verifying the statutory provision, the detecting officer and subsequently the officers who have conducted the investigation and laid the final report alleged that the petitioner has violated Clause 5(a) of the Kerala Rationing Order, 1996. The very same mistake was committed by the learned Magistrate also while taking cognisance of the offence and also at the time of disposing the discharge petition filed by the petitioner. It is the duty of the police officials who are dealing with the case at different stages, to verify the provisions of law they allege as violated. Needless to say that it is the duty of the court of first instance to verify the provisions of the law mentioned in the final report at the time of taking cognizance. At least at the stage of deciding to frame charge, the court below ought to have verified the provision in the statute book.

16. Another penal provision mentioned in the final report is Section 471 of the IPC. As on the date of registration of this crime the section reads thus:

“471. Using as genuine a forged document or electronic record.—

Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.”

17. In order to attract Section 471, it is necessary that the petitioner has to commit the offence of forgery as defined under Section 463 of IPC.

18. Section 463 of the IPC reads thus:

“463. Forgery –

Whoever makes any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

19. Section 464 of the IPC reads thus:

“464. Making a false document -

A person is said to make a false document or false electronic record1:

First— Who dishonestly or fraudulently—

1. makes, sign, seals or executes a document or part of a document;

2. makes or transmits any electronic record or part of any electronic record;

3. affixes any digital signature on any electronic record;

4. makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority or a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

Secondly— who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

Thirdly— who dishonestly or fraudulently causes any person, sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration.”

20. In Mohammed Ibrahim and Ors. v. State of Bihar and Anr [2009 KHC 1009] the Apex Court held thus:

“10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:

10.1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.

10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.

10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.

11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.” 

21. The prosecution has no case that the petitioner made any false entry in the stock register to use it as a genuine document. There is no allegation that the petitioner ever fraudulently or dishonestly used the stock register as a genuine document.

22. It is trite that when the order of the court below is suffering from material illegality, this Court by exercising revisional jurisdiction can very well interfere and correct it. From the analysis of materials on record it is evident that even if the prosecution case is accepted as a whole, the ingredients of the offence of forgery or false document as defined under Sections 463 and 464 of IPC and consequential penal provision under Section 471 of IPC will not attract in this case. The learned Magistrate failed to appreciate these facts in its right perspective.

23. In the result, the revision petition is allowed by setting aside the impugned order dated 24.12.2013 passed by the Judicial First Class Magistrate, Chittur in CMP No.6464 of 2013 in CC No.737 of 2013 and the petitioner/accused is discharged of all the offences mentioned in the final report. The petitioner/accused is set at liberty, cancelling his bail bond.