IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No.8217/2018 (GM-RES) C/W WRIT PETITION No.10598/2018 (GM-RES) IN W.P.NO. 8217/2018 Between:
M/s. Sree Bhairaveshwara M-Sanders, Rep. by its Partner S.N. Ramachandra, S/o. S. Narayanappa, Aged about 36 years, Chikkanagavalli Village, Hirenagavalli Post, Mandikal Hobli, Chikkaballapura Taluk, Chikkaballapura – 562 101.
(By Sri. R.G. Kolle, Advocate) And:
1. The State of Karnataka, Rep. by its Chief Secretary, Vidhana Soudha, Bengaluru – 560 001.
... Petitioner 2. The Principal Secretary to Govt., Department of Commerce & Industries, Vikasa Soudha, Bengaluru – 560 001.
3. The Director & Commissioner, Department of Mines & Geology, Khanija Bhavan, Race Course Road, Bengaluru – 560 001.
4. The Senior Geologist & Member Secretary, Department of Mines & Geology, District Stone Crushers Licensing & Registration Authority, Chikkaballapura – 562 101.
5. The Deputy Commissioner & Licensing Authority, District Stone Crushers Licensing & Registration Authority, Chikkaballapura – 562 101.
6. The Geologist Mr. Sandeep G. U, Department of Mines & Geology, Chikkaballapura – 562 101.
7. The SHO & Sub-Inspector of Police, Gudibande Police Station, Chikkaballapura District-562 101.
... Respondents (By Sri.S.Chandrashekaraiah, HCGP) This W.P. is filed under Section 482 of Cr.P.C r/w Articles 226 and 227 of the Constitution of India praying to direct to quash or set aside the complaint dtd:25.10.2017 filed by R-6 Geologist and also FIR dtd:25.10.2017 registered by R-7 SHO-PSI produced at Annexure-A and B respectively in respect of Gudibande Police Station Crime No.343/2017 in view of express legal bar contained under section 22 of MMDR Act and contrary to Section 2 [d] of Cr.P.C.
In W.P.No.10598/2018 Between:
M/s. Madeshwara Stone Crushers, Rep. by its Partner-S.Palaniswamy, S/o. Late Swamiyappa, Aged about 46 years, No.45, Vidyanagara Cross, Bettahalasuru Post-562 157, Bengaluru.
(By Sri. R. G. Kolle, Advocate) And:
1. The State of Karnataka, Rep. by its Chief Secretary, Vidhana Soudha, Bengaluru – 560 001.
... Petitioner 2. The Principal Secretary to Govt., Department of Commerce & Industries, Vikasa Soudha, Bengaluru – 560 001.
3. The Director & Commissioner, Department of Mines & Geology, Khanija Bhavan, Race Course Road, Bengaluru – 560 001.
4. The Senior Geologist & Member Secretary, Department of Mines & Geology, Chikkaballapura Taluka, Chikkaballapura – 562 101.
5. The Geologist (Mines), Chikkaballapura Taluka, Chikkaballapura District– 562 101.
6. The SHO & Sub-Inspector of Police, Gudibande Police Station, Chikkaballapura -561 209.
... Respondents (By Sri.S.Chandrashekaraiah, HCGP) This W.P. is filed under Section 482 of Cr.P.C r/w Articles 226 and 227 of the Constitution of India praying to direct to quash or set aside the complaint dtd:25.10.2017 filed by R-5 Geologist and FIR dtd:25.10.2017 registered by R-6 SHO/PSI produced at Annexure-A and B respectively, at Gudibande PS Crime No.341/2017 under (i) sec.379 IPC, [ii] Sec.4[1] and 4 [1A] of MMDR Act, [iii] Rule 42 of KMMC Rules and [iv] Sec.3 of Karnataka Regulation of Stone Crusher Act and Rules, contrary to Section 2[d] of Code of Criminal Procedure and Section 22 of MMDR Act, 1957.
These petitions coming on for Orders, this day, the Court made the following:
O R D E R Though these matters are listed for orders, by consent of both parties, it is taken up for final disposal.
2. Learned counsel appearing for petitioner has filed a memo in both the petitions. Since the contents of the memo are one and the same, except the FIR numbers, they are reproduced herein below:
i) W.P.No.8217/2018 is in respect of FIR No.343/2017 ii) W.P.No.10598/2018 is in respect of FIR No.341/2017 and both are dated 25.10.2017. Said memos are placed on record.
3. Hence, question of examining prayer No.1 i.e. vires of Rule 3C(5) of The Karnataka Regulation of Stone Crusher Act, 2011 which may not have a bearing on the subject matter of writ petition No.36050/2018 in the present case is not examined. The only issue which arises for consideration in these petitions is whether jurisdictional Court could have taken cognizance of the offences punishable under Sections 4(1) and 4(1A) of The Mines and Minerals (Regulation of Development) Act, 1957 (hereinafter referred to as ‘MMDR Act’), Rule 42 of The Karnataka Minor Mineral Concesion Rules, 1994 and Section 3 of The Karnataka Regulation of Stone Crushers Act, 2011 and Section 3 of The Karnataka Regulation of Stone Crushers Rules, 2012 (hereinafter referred to as ‘Stone Crushers Act and Rules’).
4. Complaints in question came to be filed by 6th respondent before Gudibande Police Station alleging the petitioner has been crushing stones for powder illegally and transported the same stealthily and thereby, committed an offence punishable under MMDR Act as well as Stone Crusher Acts and Rules made thereunder. On such complaint being lodged, jurisdictional police have registered FIR in Crime No.343/2017 and Crime No.341/2017 respectively against petitioners, which is the subject matter of these two petitions.
5. Sri. R.G.Kolle, learned counsel appearing for the petitioner is right in contending that insofar as offence committed under these two enactments, a private complaint will have to be lodged by the appropriate authority as indicated under Section 22 of MMDR Act and Section 17 of The Karnataka Regulation of Stone Crushers Act, 2011 respectively and the complaint in question is contrary to the definition of complaint as defined under Section 2(d) of Cr.PC. In fact, this Court had an occasion to consider similar issue in W.P.No.3897/2018 and after considering rival contention including objections raised by the learned HCGP therein, had held that Magistrate can take cognizance of the offences punishable under the provisions of Indian Penal Code only and would not be empowered to take cognizance for the offence punishable under provisions of MMDR Act and Rules made thereunder on the basis of a complaint lodged by the officer before a jurisdictional police or in other words, cognizance cannot be taken on the basis of a police report in the light of bar containing under Section 22 of MMDR Act and Section 17 of Stone Crushers Act, 2011 which is pari materia to Section 22 of MMDR Act. This Court, while disposing of W.P.No.3897/2018 vide order dated 21.02.2018 and Crl. Petition No.3634/2017 vide order dated 11.04.2018, had taken note of the judgment of the Apex Court in the case of State of NCT of Delhi V/s Sanjay and others reported in AIR 2015 SC 75 and has quashed the proceedings in so far as cognizance taken by the learned Magistrate for the offence punishable under MMDR Act. The facts obtained in the present cases are similar and identical and namely learned Magistrate has taken cognizance of the offence under MMDR Act and Stone Crushers Act which is prohibited under Section 22 and 17 of the respective enactments. Even otherwise, in the light of bar contained therein, jurisdictional Magistrate could not have taken cognizance of the offence on the basis of a police report. As such, proceedings initiated against the petitioner to said extent only deserves to be quashed. Hence, the following:
ORDER 1. W.P.No.8217/2018 and W.P.No.10598/2018 are hereby allowed.
2. Proceedings initiated against the respective petitioners namely in Crime No.343/2017 registered for the offence punishable under Section 3(1) of The Karnataka Regulation and Stone Crushers Act, 2011, Section 4(1), 4(1A) of The Mines and Minerals (Regulation of Development) Act, 1957 and Rule 42 of The Karnataka Minor Mineral Concesion Rules, 1994 and Crime No.341/2017 registered for the offence punishable under Section 3(1) of The Karnataka Regulation and Stone Crushers Act, 2011, Section 4(1), 4(1A) of The Mines and Minerals (Regulation of Development) Act, 1957 and Rule 42 of The Karnataka Minor Mineral Concesion Rules, 1994 are hereby quashed.
3. However, the Department of Mines and Geology would be at liberty to initiate proceedings under the said enactments, if they so desired and advised in the manner known to law. However, it is made clear that proceedings pending against respective petitioners for the offence punishable under Section 379 of IPC shall be proceeded with in accordance with law. No opinion is expressed in that regard.
Learned Government Advocate is permitted to file memo of appearance within four weeks.
Sd/- JUDGE UN