IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.1414/2019 BETWEEN:
1. Rajesh S/o.Jaganath Rao, Aged about 38 years, Occupation:Business, R/o.Hudco Colony, Bhadravathi Taluk, Shivamogga District-577 301.
2. Girish S/o.H.N.Hanumanthappa, Aged about 40 years, Occ:Business R/o.Sharavathi Nagar, 3rd Cross, 4th Stage, Shivamogga-577 201.
3. Dore M. S/o.R.Murthy Naidu, Aged about 40 years, Occ: Business, R/o.Hosamane, Badravathi, Shivamogga-577 301.
(By Sri. Om Prashanth on behalf of Sri.S.Y.Shivalli, Advocate) …. Petitioners AND:
1. State of Karnataka, Represented by Secretary Department of Mines And Geology, M.S.Building, Bengaluru, Represented by its Vinobanagar Police, Shivamogga District.
Now represented, By State Public Prosecutor, High Court of Building, Bengaluru-560 001.
2. Smt.Vindhya S.M, W/o.Amith Kumar, Age: Major, Geologist, Office of the Senior Geologist, Mineral Division, Assistant Commissioner’s Building, Shivamogga-577 201.
… Respondents (By Sri.S.Rachaiah, Advocate) This Criminal petition is filed under Section 482 of the Code of Criminal Procedure, praying to quash the entire proceedings in C.C.No.331/2018 (Cr.No.2/2015) pending on the file of J.M.F.C-III Court, Shivamogga in so far as petitioners are concerned.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER Petitioners have been arraigned as accused Nos.3, 4 and 5 in Crime No.2/2015 (C.C.No.331/2018) registered by Vinobhanagar Police Station, pending on the file of Civil Judge, JMFC III Court, Shivamogga, for the offences punishable under Section 44 of Karnataka Minor Mineral Consistent Rules 1994, Section 21 of Mines and Minerals (Regulation of Development) Act, 1957 and Section 379 of IPC, alleging that on 31.12.2014 at about 12.00 noon, respondent No.2 along with revenue officials had conducted a raid on Sy.Nos.131/4, 147 and 146 of Basavaganguru Village, where they found that petitioners and others were engaged in illegal mining work and were transporting the stones by stealing and thereby causing loss to the Government exchequer. For quashing of said proceedings, petitioners are before this Court.
2. I have heard the arguments of Sri.S.Y.Shivalli, learned Counsel appearing for petitioners and Sri.S.Rachaiah, learned High Court Government Pleader appearing for State. Perused the records.
3. Having heard the learned advocates appearing for both parties, and on perusal of case papers it emerges there from that respective accused persons have been charge-sheeted for the offences punishable both under Mines and Minerals (Development and Regulation) Act, 1957 as well as under Indian Penal Code. In so far as the allegations regarding violation of provisions of MMDR Act and Rules made there under is concerned, there cannot be any dispute to the proposition, for the offences committed under the said Act and Rules 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 police report, proceedings cannot be conducted in so far as offences under MMDR Act and Rules made there under are concerned.
4. This proposition receives support from dictum by the Hon’ble Apex Court in the case of NCT of Delhi V/s. Sanjay reported in AIR 2015 SC 75.
5. In the light of aforesaid settled position of law, when facts on hand are examined, it would indicate that undisputedly there was no complaint filed by the competent officer as prescribed under Section 22 of MMDR Act. Further, the jurisdictional Magistrate had taken cognizance of the offence based on a police report which relates to both the offences namely under Section MMDR Act, Rules and also under the provision of IPC. However, the jurisdictional Magistrate after having noticed that the provisions of MMDR Act are invoked by the prosecution has committed the proceedings to the special Court on the premise that offences punishable under Section MMDR Act are exclusively triable by Special Court. However, jurisdictional Sessions Court has noticed that it would have no jurisdiction either to entertain these cases arising under provisions of MMDR Act without compliance of Section 22 of the Act which are triable by the Jurisdictional Magistrates.
6. In this background, learned trial judge of Special Court has held as it has no jurisdiction to try the accused for the alleged offences and as such has transmitted the records back to the jurisdictional Magistrate and directed the accused to appear before the said Court 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 a complaint by the competent officer or authorized officer as prescribed under Section 22 of the MMDR Act, Magistrate would have no jurisdiction at all to try the accused for the offences alleged under Section 22 of MMDR Act. However, insofar as offences punishable under provisions IPC are concerned they are exclusively triable by the Magistrate. As such, matter has been rightly remitted back to the learned Magistrate and in this background, the learned Magistrate would be empowered to pass appropriate orders including discontinuation of proceedings under the provisions of MMDR Act by taking into consideration the law laid down by the Hon’ble Apex Court in the case of NCT of Delhi V/s. Sanjay reported in AIR 2015 SC 75 referred herein supra, including passing of an order discharging the accused for the said offences i.e. for the offences punishable under MMDR Act, in view of there being no complaint having been filed under Section 22 of the Act and of course, by reserving liberty to the department of Mines and Geology to file an appropriate complaint if so advised in that regard before the jurisdictional Court. The learned Magistrate would also be at liberty to pass such other suitable orders as it deemed fit in the event of such complaint being filed.
Subject to above observations, the criminal petition stands disposed of.
SD/- JUDGE ag