IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA W.P. NO. 55608/2017 (GM-RES) BETWEEN ASHOK KUMAR SHETTY, S/O LATE ANANDA SHETTY, AGED ABOUT 32 YEARS, R/ AT SHANTHIGIRI HOUSE, TENKAMIJARUGRAMA, MANGALURU-574227 ... PETITIONER (BY SRI. DHANANJAY KUMAR, ADV.) AND 1. STATE OF KARNATAKA, REP. BY VENOOR POLICE, BELTHANGADI-574 201 D K DISTRICT, REP BY SPP, HIGH COURT OF KARNATAKA BENGALURU-560 001 2. B. K. MOORTHY, AGED ABOUT 35 YEARS, DEPARTMENT OF MINES AND GEOLOGY, MANGALURU TALUK D.K. DISTRICT-575 001 ... RESPONDENTS (BY SRI. S. RACHAIAH, HCGP) THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA R/W SEC.482 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.146/2017 ON THE FILE OF THE PRINCIPAL SESSIONS & SPECIAL JUDGE, DAKSHINA KANNADA DISTRICT, MANGALURU, IN CRIME NO.86/2016 REGISTERED BY THE VENOOR POLICE AS AGAINST THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 36, 42, 44, 3 OF MMRD ACT AND KMMC RULES 1994 AND SECTION 21[4], 21[4A], 4, A[1A] OF MINES AND MINERAL REGULATION OF DEVELOPMENT ACT AND SECTION 379 OF IPC VIDE ANNEXURE-A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard the learned counsel for the petitioner and the learned HCGP for the respondent No.1-State.
2. Learned counsel for the petitioner is permitted to correct the name of the court in the prayer column and the interim prayer column as the Principal Sessions and Special Judge, Dakshina Kannada, Mangaluru.
3. The petitioner is arraigned as Accused No.5 in Crime No.86/2016, which culminated in C.C. No.146/2017 on the file of the Principal Sessions and Special Judge, D.K. Mangaluru. The learned Sessions Judge has taken cognizance of the offences punishable under Sections 36, 42, 44 & 3 of Mines and Minerals (Regulation and Development) Act (for short, ‘MMRD Act’) and Karnataka Mines and Minerals Concession Rules, 1994 ( for short, ’KMMC Rules’) and Sections 21(4), 21(4A), 4, and 4(1)(A) of Mines and Minerals (Regulation and Development) Rules 1957 and also under Section 379 of IPC and issued process against the accused. Neither the special judge nor any court has got any jurisdiction to take cognizance of the offences under any provisions of MMRD Act and KMMC Rules, in view of the specific bar under Section 22 of the said MMRD Act, 1957, which 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.”
4. However, the Hon’ble Apex Court in a decision reported in AIR 2015 SC 75 between the State of NCT Delhi Vs. Sanjay and other connected matters, while dealing with the issue in question, has held as under:
“Mines and Minerals (Development and Regulation) Act, (67 of 1957) Ss.21, 22 – Theft of minerals including sand from river bed- Taking action by police – S.22 is not absolute bar for such action.
(1995) 1 Cal L.T. 95, Overruled Penal Code (45 of 1960), Ss.379, 114, S.22 is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.
(1995), 1 Cal. LT 95, Overruled, (Paras 56, 66) 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 S.4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in S.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 S.4 of the Act and not for any act or omission which constitute an offence under Penal Code. 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 Penal Code. 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 a 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 S.173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in S.190 (1)(d) of the Criminal P.C. (Paras 68, 69, 71).
Therefore, in the light of relevant provisions of the MMDR Act, vis-à-vis the Code of Criminal procedure and the Penal Code, 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 S.378 IPC, 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 (Para 72).”
5. In view of the above decision, it is clear that the learned Magistrate can try the offences under Section 379 of IPC. Neither the special Court nor the Judicial Magistrate of First Class can take cognizance of the offences under the MMRD Act or under KMMC Rules, unless a private complaint is filed by the authorized person under Section 22 of the MMRD Act 6. In the above said circumstances, the cognizance taken by the Special Judge is bad in law and the same is liable to be quashed. However, if cognizance is taken wrongly by the court and subsequently, if it comes to the knowledge of the court, then the Sessions Court can refer or send the matter to the court having jurisdiction for trial, if any other offences are triable by the Magistrate. Section 228 of Cr.PC. contemplates that, if after consideration and hearing with regard to the materials on record, if the Judge is of the opinion that there is a ground for presuming that the accused has committed offences, which is not exclusively triable by the Court of Sessions, then the court may frame charges against the accused by an order transferring the case for trial to the concerned judicial Magistrate or to any other Judicial Magistrate of First Class and direct the accused persons to appear before the Chief Judicial Magistrate or as the case may be to Judicial Magistrate of First Class. On such remission, such magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report for the offences otherwise than the MMRD Act & KMMC Rules, etc.
7. In the above said circumstances, the Principal Sessions and Special Judge, D.K., Mangaluru, is hereby directed to pass appropriate orders under Section 228 of Cr.PC., as it is made clear that the said court has no jurisdiction to try any of the above offences invoked by the police and police have no jurisdiction to file a report under Section 173 of Cr.PC.
for the offences under the MMRD Act or under KMMC Rules.
8. In view of the above observations, the petition is disposed of with a direction to the concerned learned Sessions Judge to follow the above said direction and to pass appropriate orders in accordance with law.
Sd/-
JUDGE KGR*