IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO. 9358/2017 BETWEEN 1. A. SRIDHAR, S/O A. V. AKKALA REDDY, AGED ABOUT 40 YEARS, R/AT ADDAGALLU VILLAGE, MANDIKAL POST, CHICKABALLAPUR DIST-562 101 2. SRINIVAS MURTHY, S/O AKKALA REDDY, AGED ABOUT 43 YEARS, R/AT ADDAGALLU VILLAGE, MANDIKAL POST, CHICKABALLAPUR DIST-562 101 3. MANJUNATHA, S/O AKKALA REDDY, AGED ABOUT 37 YEARS R/AT ADDAGALLU VILLAGE, MANDIKAL POST, CHICKABALLAPUR DIST-562 101 ... PETITIONERS (BY SRI. B. ANAND, ADV. FOR SRI. NAGARAJ N. NAIDU, ADV.) AND 1. THE STATE OF KARNATAKA, BY GUDIBANDE POLICE, CHIKKABALLAPURA DISTRICT, REP BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU-560 001 2. THE SENIOR GEOLOGIST, DEPARTMENT OF MINES & GEOLOGY CHICKABALLAPURA DIST., CHICKBALLAPURA-562 101 ... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP) THIS CRL.P IS FILED U/S 482 CR.P.C PRAYING TO QUASH ALL THE PROCEEDINGS IN C.C.NO.381/2017 ON THE FILE OF CIVIL JUDGE AND J.M.F.C OF GUDIBANDE, CHIKKABALLAPURA DISTRICT.
THIS CRL.P COMING ON FOR ADMISSION ALONG WITH IA NO.1/2017 THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioners.
2. Learned HCGP takes notice to Respondent Nos. 1 and 2. Perused the records.
3. The petitioner has called in question the proceedings before the Civil Judge and JMFC Court, Gudibande at Chikkaballapur, wherein after taking cognizance, process has been issued to the petitioners for the offences punishable under Sections 379 and 420 r/w. 34 of IPC and also under Sections 4(1), 4(1A), 21(5) of Mines and Minerals Regulation and Development Act ( for short, MMRD Act’) and Sections 3 and 42 the Karnataka Mines and Minerals Concession Rules (for short, KMMC Rules).
4. Learned counsel submits before the court that there is a bar under Section 22 of the MMRD Act for the learned Magistrate to take cognizance of the offences under the MMRD Act and KMMC Rules. Section 22 of MMRD Act reads as under:
Sec. 22: Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any Rules made hereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.”
5. In the above provision it is clear that, the Magistrate has no jurisdiction to take cognizance for offences under the above said enactment and rules unless a complaint is lodged by an authorized officer. At this stage, it is worth note hear a decision of the Hon'ble Apex Court reported in AIR 2015 SC 75 between State of NCT Delhi, along with other cases, wherein it has dealt with the same situation and observed that the Magistrate can only take cognizance for the offences punishable under the provisions of Indian Penal Code and he cannot take cognizance for the offences under the Provisions of MMRD Act and Rules in view of a specific bar under Section 22 of the Act. The relevant portions at Paragraphs 68 to 72 of the said decision, reads as under:-
“68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the report submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.
69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals form the river, which is the property of the State, out of State’s possession without the consent, constitute an offence of theft.
71. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.
72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378, Cr.P.C., on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly.”
6. Under the above circumstances, the cognizance taken by the learned Magistrate sofaras the above said offences under the MMRD Act and Rules is hit by Section 22 of the MMRD Act. Hence, the said proceedings sofar it relates to MMRD Act and KMMC Rules, deserves to be quashed. However it is made clear that the Magistrate can deal with the offences under Section 379 and 420 r/w. 34 of IPC.
7. In the circumstances, I pass the following:-
ORDER The petition is partly allowed. Cognizance taken and registration of the case against the petitioners herein in CC No.381/2017 particularly for the offences under Sections 4(1), 4(1A), 21(5) of MMRD Act and Rules 3 and 42 of KMMC Rules are hereby quashed.
However, the respondents – authorities are at liberty to move the court by way of a private complaint, if law permits.
In view of disposal of this case, the application-IA No.1/2017 filed for stay, does not survive for consideration. Accordingly, the said application stands disposed of.
Sd/-
JUDGE KGR*