IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.6958/2018 BETWEEN:
KRISHNAN.T.P, S/O. LATE PUTTEGOWDA, AGED ABOUT 72 YEARS, R/O. LAKSHMIPURA EXTENSION, SAKALESHPURA TOWN, SAKALESHPURA TALUK, HASSAN DISTRICT – 573 201.
... PETITIONER (BY SMT.HAMSA.N.RAJ ON BEHALF OF SRI.L.BHARADWAJ, ADV.) AND:
THE STATE OF KARNATAKA, BY SAKALESHPURA TOWN POLICE STATION, REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, AT BANGALORE – 560 001.
(BY SRI S.CHANDRASHEKARAIAH, HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DATED 09.08.2017 AND FURTHER ENTIRE PROCEEDINGS IN C.C.NO.124/2017 PENDING ON THE FILE OF SENIOR CIVIL JUDGE AND J.M.F.C., SAKALESHPURA PENDING AGAINST THE PETITIONER FOR THE OFFENCE P/U/S 379 OF IPC AND SECTION 4(1A) AND 21 OF THE MINES AND MINERALS REGULATION OF DEVELOPMENT (MMRD) ACT, 1957 VIDE ANNEXURE-A BY ALLOWING THIS PETITION.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though matter is listed for orders, by consent of learned Advocates, it is taken up for disposal.
2. Petitioner herein has been arraigned as accused No.4 in Cr.No.31/2017 which came to be registered for the offences punishable under Section 379 of IPC and Section 4 (1) (A) and 21 of MMRD Act. On investigation, charge sheet has been filed in C.C.No.124/2017 which is now pending on the file of the Senior Civil Judge and JMFC, Sakaleshpura for the aforesaid offences. Hence, for quashing of said proceedings, petitioner is before this Court.
3. Perusal of the compliant would disclose that on 15.02.2015, a credible information has been received by Sakaleshpura Town police station about illegal mining and transportation of sand was carried out and as such, Jurisdictional Police went to spot along with panchas at 7.15 a.m. and intercepted the vehicle which was said to be carrying sand illegally. On seeing the police squad, driver of the tractor and trailer had abandoned the vehicle and is said to have escaped. Hence, alleging that sand which was illegally extracted was being transported came to be seized by drawing a mahazar. On the ground that petitioner was intending to purchase smuggled sand, he has been arraigned as accused No.4.
4. I have heard the arguments of Smt.Hamsa.N.Raj appearing on behalf of Sri.Bharadwaj, learned counsel for petitioner and Sri.S.Chandrashekaraiah, learned counsel appearing for State and perused records.
5. It is the contention of Smt.Hamsa.N.Raj, learned counsel appearing for petitioner that petitioner has been falsely implicated and he is neither the owner nor driver of the vehicle and as such, she prays that proceedings initiated against petitioner be quashed.
6. Per contra, learned counsel appearing for respondent would submit that proceedings have been initiated against petitioner on the ground that petitioner along with accused Nos.1 to 3 had extracted & smuggled sand in question by transporting the same and selling it to petitioner.
7. Having heard the learned counsel appearing for parties and on perusal of record, it is noticed that the respondent has not only initiated proceedings against petitioner for the offence punishable under Indian Penal Code but also for offence punishable under Mines and Minerals (Developments and Regulation) Act, 1957.
8. 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 the offences are punishable under the M.M.R.D. Act and Rules made thereunder, no Court can take cognizance of the offence under said Act unless an authorized officer files a complaint under Section 22 of the Act and in event of cognizance having been taken on the basis of a Police report such proceedings cannot be continued as it would be an illegality. Hon’ble Apex Court has held that such proceedings are liable to be quashed, inasmuch as the accused cannot be made to face the ordeal of trial since the jurisdictional Magistrate would have no power to take cognizance and convict the accused on the basis of a Police report.
9. 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. Perusal of charge sheet material in the instant case would disclose that petitioner has been charged for the offence punishable under Sections 379 of IPC and Section 4(1)(a) and 21 of the MMDR Act. Unless Authorized Officer files a compliant under Section 22 of the Act, continuation of proceedings by learned Magistrate would be illegal and cognizance having been taken on the basis of the police report, such proceedings cannot be allowed to continue as it would be illegal. As such, continuation of proceedings against petitioner in the instant case for the offences punishable under the MMDR Act and Rules made thereunder cannot be allowed to continue as it would be an abuse of process of law. However, liberty is to be 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.
10. Hence, the following:
ORDER i) Criminal petition is allowed-in-part.
ii) Proceedings pending against petitioner in C.C.No.124/2017 (arising out of Cr.No.31/2017) insofar it relates to offence punishable under Sections 4(1)(a) and 21 of MMDR Act is quashed. Insofar as proceedings pending against the petitioner under section 379 of IPC, same shall be proceeded with.
iii) However, Department of Mines and Geology, Government of Karnataka would be at liberty to initiate appropriate proceedings in the manner known to law.
SD/- JUDGE VM