IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.1435/2019 BETWEEN:
1. MR. JAYARAMA M S/O MR. NARASIMHA KOTYAN, AGED ABOUT 50 YEARS, R/AT NO.1413, 12TH CROSS, 1ST ‘D’ MAIN ROAD, KENGERI UPANAGAR, BANGALORE – 560 060.
2. MR.VISHWANATH SHRIYAN @ VISHWANATH S/O MR.PARAMESHWARA SHRIYAN, AGED ABOUT 48 YEARS, R/AT NO.485, HEALTH LAYOUT, VISHWANEEDAM POST, NAGARBHAVI, BANGALORE – 560 091.
. … PETITIONERS [BY SRI KESHAVA MURTHY B., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY THE BIDADI POLICE STATION, RAMANAGARA DISTRICT, REP. BY SPP, HIGH COURT BUILDING, BANGALORE – 560 001.
2. THE GEOLOGIST DEPARTMENT OF ASST. DIRECTOR, RAMANAGARA TOWN, RAMANAGARA-562 159.
… RESPONDENTS (BY SRI S.RACHAIAH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE CHARGE SHEET FILED BY THE RESPONDENT POLICE IN CR.NO.401/2013 AND C.C.NO.944/2014 PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, RAMANAGARA DISTRICT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri Keshava Murthy B., learned Counsel appearing for petitioners and Sri S. Rachaiah, learned HCGP appearing for respondent No.1-State. Perused the records.
2. Complainant - Sri H.Ramalingaiah, Geologist, Assistant Director, lodged a complaint on 10.11.2013 alleging on instructions from Deputy Director, complainant along with Village Accountant had been to Kopadyapanahalli Village, Bidadi Hobli, Ramanagara District and during their visit found some persons were illegally transporting stone blocks by lorry bearing Reg.No.KA-06-A-4709 and Tata Itachi Ex.200. Based on said complaint, respondent Police have registered a complaint in Crime No.401/2013 for the offences punishable under Sections 4(1), 4(1A) and 21 of MMDR (Mines & Minerals Regulation of Development) Act, 1957, Sections 42, 43 and 44 of Karnataka Minor Minerals Consistent Rule, 1994 and Section 379 of IPC.
3. It is the contention of Sri Keshava Murthy B., learned Advocate appearing for petitioners that jurisdictional police erred in registering an FIR and jurisdictional Magistrate further erred in taking cognizance of said offences despite there being no complaint filed under Section 22 of the MMDR Act and on the basis of police report, cognizance could not have been taken by the learned Magistrate and as such, he prays for quashing of the proceedings. He further submits that in view of the circular issued by the appropriate Government, ingredients of Section 379 Cr.P.C. is not attracted.
4. Per contra, Sri S. Rachaiah, learned HCGP would defend the initiation of proceedings against petitioners contending that petitioners and other similarly placed accused persons have illegally conducted mining activity by extracting sand without there being any permit and as such, jurisdictional police have taken action by registering a case and one of the offences for which petitioners have been charged is a cognizable offence punishable viz., Section 379 of IPC and as such, he prays for rejection of the petition.
5. A bare reading of Section 22 of the MMDR Act would disclose that Magistrate would have no jurisdiction to take cognizance for the offence punishable under said enactment and rules made there under unless a complaint is lodged by an authorized officer in that regard. It would be apt to note at this juncture the judgment of the Hon’ble Apex Court in the case of KALUBHAI DULABHAI KHACHAR –VS- SONDABHAI HANUBHAI BHARWAD reported in AIR 2015 SC 75 wherein it has been held by the Hon’ble Apex Court that Magistrate can take cognizance of the offence punishable under provisions of Indian Penal Code and would not be empowered to take cognizance for offences alleged under provisions of MMDR Act or the Minor Mineral Concession Rules, 1994 made thereunder that too on the basis of a police report in view of there being a specific bar contained under Section 22(1) of the MMDR Act. It has been held by the Apex Court to the following effect:
“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 record 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 laible 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 from 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 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 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-à-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. Keeping the above principles in mind, when facts on hand are examined, it would clearly indicate that jurisdictional police have filed charge sheet against petitioners for the offences punishable under Sections 21(1) of MMRD Act and Rules made thereunder and also under the provisions of IPC. In the light of law laid down by the Apex Court in the judgment referred to supra, proceedings initiated against petitioners culminating in filing of charge sheet in so far as it relates to invoking provisions of MMRD Act and Rules made thereunder, cannot be proceeded with in as much as it is based on a police report and there is no complaint lodged by a competent or authorized officer as required under Section 22 of MMDR Act and to that extent proceedings will have to be quashed by granting liberty to the State to initiate proceedings against the petitioners in accordance with law. However, proceedings initiated against the petitioners by invoking provisions of Indian Penal Code can be proceeded with and there can be no impediment.
7. Insofar as contention of Sri Keshava Murthy B., learned Advocate appearing for petitioners is concerned, though at first blush looks very attractive, it cannot be accepted for the simple reason that issue regarding theft or otherwise of the stones in question is a matter which will have to be examined by the learned trial Judge after trial.
Hence, I proceed to pass the following:
ORDER i) Criminal Petition is partly allowed;
ii) Proceedings pending against the petitioners in CC No.944/2014 on the file of Principal Civil Judge & JMFC, Ramanagara District (Crime No.401/2013) in so far as it relates to filing of charge sheet for the offence punishable under Sections 42, 43 and 44 of Karnataka Minor Minerals Consistent Rule, 1994 and Sections 4(1), 4(1A) & 21 of MMDR (Mines & Minerals Regulation of Development) Act, 1957, is quashed by reserving liberty to the Department of Mines- State to initiate appropriate proceedings against the petitioners in accordance with law.
iii) However, it is made clear that in so far as proceedings initiated against petitioners/accused for the offence punishable under Section 379 of IPC, which is now pending on the file of Principal Civil Judge & JMFC, Ramanagara District, in CC.No.944/2014 is concerned, shall be proceeded with.
In view of petition having been allowed in part, I.A.No.1/2019 for stay of proceedings does not survive for consideration. Hence, it is rejected.
SD/- JUDGE PB