IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.1378 OF 2019 BETWEEN:
D G Raghu s/o Govindae Gowda Occupation: Business R/o Dasarkoppalu Saligame Road Hassan-573201.
(By Sri.Nandish Patel, Advocate) AND:
1. The State of Karnataka By Sakaleshpura Rural Police Station Represented by its Learned Public Prosecutor High Court Building, Bengaluru-560 001.
…. Petitioner 2. Sri.H.P.Harish S/o L.Puttaswamy, Department of Mines and Geology, Hassan-573 116.
(By Sri.S.Rachaiah, Advocate) … Respondents This Criminal petition is filed under Section 482 of the Code of Criminal Procedure, praying to quash the Criminal Proceedings initiated as against the petitioner in Cr.No.178/2010 (C.C.No.416/2015) pending on the file of the Civil Judge and JMFC, Sakaleshpura for the offence punishable under Section 379 of IPC and Section 4(1A), 21 of MMRD Act.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER Petitioner has been arrayed as accused No.1 in Crime No.178/2010 (C.C.No.416/2015) registered by Sakleshpura Rural Police Station for the offences punishable under Sections 379 of IPC and under Sections 4(1) (a), 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘Act’) alleging that on 07.06.2010 at about 3.30 p.m., information was received that on the river bed of Hemavathi river of Sakleshpura Town, a Tata Hitachi vehicle was being used for illegally extracting sand without permit or license. Hence, they proceeded to the spot to inspect and saw the driver of the vehicle was extracting sand and two other persons were watching the same by parking their two wheeler vehicles and the moment when they went near vehicles the driver and another person ran away from the spot and petitioner was apprehended along with sand. After completion of investigation, charge sheet has been filed and petitioner has been arraigned as accused No.1 in C.C.No.416/2015 for aforesaid offences. For quashing of said proceedings, petitioner is before this Court.
2. I have heard the arguments of Sri.Nandish Patil, learned Counsel appearing for petitioner and Sri.S.Rachaiah, learned High Court Government Pleader appearing for State. Perused the records.
3. It is the contention of learned counsel Mr.Nandish Patil, that petitioner has been falsely implicated. He would submit that petitioner had approached Lokayukta on 22.03.2010 and had filed a detailed complaint with respect to illegal sand mining in different areas of Hassan and Sakleshpur District by alleging that Deputy Commissioner, Hassan, Assistant Commissioner and Tahsildar of Sakleshpur Division and Officials of Department of Mines and Geology, Hassan and Coorg have colluded with certain persons and have permitted them to operate, conduct illegal mining activity. Hence, out of vengeance, the present proceedings have been initiated by filing a false complaint against the petitioner by second respondent. He would also submit that insofar as accused No.2 is concerned, this Court by order dated 12.01.2017 passed in Crl.P.No.6652/2016 has quashed the proceedings insofar as section 4(1) (a) and 21 of the MMDR Act and same relief be extended to the petitioner. Hence, he contends that continuation of the proceedings against the petitioner is liable to be quashed.
4. Per contra, learned Government Pleader appearing for State submits that not only based on the statement of accused Nos.2 and 3, petitioner came to be apprehended, but it was also noticed by the raiding party that petitioner (accused No.1) was present at the spot when theft of minor mineral took place. Hence, he prays for rejection of the petition.
5. Having heard the learned Advocates appearing for parties and on perusal of records, it is noticed that respondent/authority has not only initiated proceedings against petitioner for the offences punishable under Indian Penal Code, but also for the offences punishable under the M.M.D.R. Act and Rules made thereunder.
6. The Hon’ble Apex Court in the case of State of NCT of Delhi –vs- Sanjay and Others reported in AIR 2015 SC 75 has held where offences are punishable under the M.M.R.D. Act and the Rules made thereunder, no Court can take cognizance of the offence unless an authorized officer files a complaint under Section 22 of the Act and in the event of cognizance having been taken on the basis of a Police report such proceedings cannot be continued as it would be an illegality. In these circumstances, the Hon’ble Apex Court has held that such proceedings are liable to be quashed, inasmuch as accused cannot be made to undergo the ordeal of trial since jurisdictional Magistrate would have no power to take cognizance of the offence under MMDR Act and convict the accused on the basis of a Police report.
7. Following the judgment of the Hon’ble Apex Court, Co-ordinate Benches of this Court has consistently held that proceedings initiated on the basis of a Police report for the offences punishable under the M.M.D.R.Act and the Rules made thereunder cannot be sustained and as such, has quashed the proceedings in W.P.No.54390/2017, Criminal Petition No.9358/2017 and Criminal Petition No.307/2018 disposed of on 1.2.2018, 4.12.2017 and 19.3.2018 respectively. In the instant case also petitioner has been arrayed to have committed offences under MMDR Act and Indian Penal Code and complaint has been lodged by an official of Department of Mines and Geology before Jurisdictional Police and based on said complaint, FIR in Cr.No.178/2010 came to be registered for aforesaid offences. There is no complaint filed under Section 22 of MMRD Act and as such cognizance could not have been taken by the learned Magistrate. As such, continuation of proceedings against the petitioner in the instant case for the offences punishable under the MMDR Act and the Rules made thereunder cannot be allowed to continue as it would be an abuse of process of law. However, liberty is being reserved to the Department of Mines and Geology, Government of Karnataka, to initiate appropriate proceedings against the petitioner in terms of Section 22 of the M.M.D.R.Act.
8. Now turning my attention to the contention raised by the learned Counsel for the petitioner that petitioner has been falsely implicated, when seen in the background of the case papers, it would not detain this Court for long to brush aside said contention for three reasons. Firstly, Jurisdictional Police, who conducted the raid has apprehended petitioner at the spot and it is categorically asserted that petitioner had also indulged in theft of minerals; secondly, voluntary statement made by accused Nos.2 and 3 would disclose that petitioner has indulged in illegal extraction of sand. These aspects will have to be thrashed out after trial and at this stage, in exercise of extraordinary jurisdiction, this Court would not quash the proceedings initiated for the offence punishable under Indian Penal Code, which has been alleged against petitioner.
9. Hence, for the reasons aforestated, I proceed to pass the following order:
i) Criminal Petition is allowed in part.
ii) Proceedings pending against petitioner in Crime No.178/2010 (C.C.No.416/2015) insofar as it relates offences punishable under Sections 4, 4(1)(a) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957, is hereby quashed. However, Department of Mines and Geology, Government of Karnataka, would be at liberty to initiate proceedings under the Act in the manner known to law;
iii) It is also made clear that proceedings pending against the petitioner for the offences punishable under Section 379 of IPC shall be proceeded in accordance with law.
SD/- JUDGE ag