IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1781/2019 BETWEEN:
GURUPRASAD S/O MANJUNATH AGED ABOUT 28 YEARS OCC: BUSINESS R/O SRI. MANJUNATHA NILAYA LAKSHMIPURA EXTENSION VINOBHANAGAR MAIN ROAD SHIVAMOGGA – 577 201.
(BY SRI. S.Y. SHIVALLI., ADVOCATE) AND:
1. STATE OF KARNATAKA ... PETITIONER REP. BY ITS VINOBANAGAR POLICE SHIVAMOGGA DISTRICT NOW REPTD., BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 560 001.
2. RAGHAVENDRA KANDIKE AGED MAJOR PSI, VINOBANAGAR POLICE STATION, SHIVAMOGGA – 577 201.
(BY SRI. S. RACHAIAH., HCGP) ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.336/2018 (CRIME NO.55/2017) PENDING ON THE FILE OF JMFC III COURT SHIVAMOGGA INSOFAR AS PETITIONER IS CONCERNED.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R In this petition FIR registered as against petitioner by Vinobanagar police for the alleged offence punishable under Sections 3(1), 42(1), 44(1), 44(2) of The Karnataka Minor Mineral Concession Rules, 1994 and under Section 379 of IPC is under challenge.
2. After completion of investigation, charge- sheet came to be filed in C.C.No.336/2018 and jurisdictional Magistrate has passed the committal order accordingly and case was committed to the Special Court. Thus, Principal District and Sessions Judge, Shivamogga has registered the same as a Special Case in Spl.C.No.76/2018. During the pendency of trial, Principal District and Sessions Judge by its order, has transmitted the records to the Judicial Magistrate Court –III, Shivamogga to examine the records and proceed against the accused person. On such transfer, the learned JMFC-III, Shivamogga having registered the same as C.C.No.336/2018, is proceeding to adjudicate on the charge against accused for the offence punishable under Rule 3(1) of Karnataka Mines and Minerals Rules and under Sections 42(1), 44(1) and 44(2) of Karnataka Mines and Minerals Act r/w Section 379 IPC and same is under challenge in this criminal petition.
3. Heard Sri.S.Y.Shivalli, learned Advocate appearing for petitioner and Sri. S.Rachaiah, learned HCGP appearing for respondents.
4. It is the contention of Sri. S.Y.Shivalli, learned counsel appearing for petitioner that police have no authority to receive the complaint and register the FIR in respect of offence punishable under KMMCR Act and Rules made there under and as such proceedings initiated against petitioner is liable to be quashed. Hence, he seeks for quashing of the proceedings.
5. Per contra, learned HCGP appearing for first respondent would support the initiation of prosecution against the petitioner and prays for dismissal of petition.
6. Having heard the learned Advocates appearing for parties and on perusal of case papers it emerges there from that accused person has been charge-sheeted for the offences punishable both under The Karnataka Minor Mineral Concession Rules, 1994 as well as under Indian Penal Code. In so far as allegations regarding violation of provisions of MMDR Act is concerned, there cannot be any dispute to the proposition that if the offences committed under the said Act or Rules made thereunder, a complaint is required to be filed under Section 22 of the MMDR Act by the competent or concerned officer. In the absence of such complaint being lodged, based on a complaint lodged before police, proceedings cannot be continued in so far as said offences are concerned. This proposition of law receives support from the dicta laid down by the Hon’ble Apex Court in the case of NCT of Delhi V/s. Sanjay reported in AIR 2015 SC 75.
7. In the light of aforesaid settled position of law, when facts on hand are examined, it would emerge from records that undisputedly there was no complaint filed by the competent officers as prescribed under Section 22 of MMDR Act against petitioner. Further, the jurisdictional Magistrate had taken cognizance of the offence based on the FIR registered by the jurisdictional police which relates to offences both under MMDR Act and under the provision of IPC. However, jurisdictional Magistrate after having noticed that provisions of MMDR Act are invoked by the prosecution has committed the proceedings to the special Court on the premise that the offences punishable under Section MMDR Act are exclusively triable by the Special Court. However, jurisdictional Sessions Court has noticed that it would have no jurisdiction either to entertain said proceedings arising under provisions of MMDR Act without compliance of Section 22 of the Act and the offence punishable under Section 379 of IPC is triable exclusively by the Magistrates and rightly so.
8. In this background, learned Sessions judge of Special Court has held as it has no jurisdiction to try the accused for the alleged offences and as such it has transmitted the records back to the jurisdictional Magistrate and directed the accused to appear before the jurisdictional Magistrate on receipt of fresh summons. There is no error committed by the learned Sessions Judge in this regard, in as much as, in the absence of complaint being filed by the competent officer or authorized officer as prescribed under Section 22 of the MMDR Act, Sessions Court would have no jurisdiction to try petitioner for the offences punishable under MMDR Act and offence punishable under Section 379 IPC is exclusively triable by the Magistrate. As such, the matter has been rightly remitted back to the learned Magistrate and in this background, the learned Magistrate would be empowered to adjudicate the proceedings for the offences punishable under Section 379 IPC only. In view of there being no complaint has been filed under Section 22 of the MMDR Act and of course, by reserving liberty to the department of Mines and Geology to file appropriate complaint in that regard before the jurisdictional Court.
Hence, I proceed to pass the following:
ORDER (1) Criminal petition is allowed in part.
(2) Proceedings registered against petitioner in C.C.No.336/2018 pending on the file of JMFC-III, Shivamogga insofar as offences punishable under Rule 3(1) and under Sections 42(1), 44(1), 44(2) of The Karnataka Minor Mineral Concession Rules, 1994 and liberty is reserved to the department of Mines and Geology to file complaint under Section 22 of the MMDR Act and proceedings against petitioner in accordance with law.
(3) However, proceedings pending against petitioner for the offence punishable under Section 379 IPC shall be proceeded in accordance with law.
SD/- JUDGE
RU