IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Mr. JUSTICE JOHN MICHAEL CUNHA Crl.P. No. 6550/2016 BETWEEN :
1. Sri. C. Karunakara A/o. Chowda Nayka Aged about 36 years R/a. No. 200/2 Bolanahalli, Hunsur Mysuru Dist. 571 105.
2. Sri. H.T. Venkatesh @ Venkatesh Gowda S/o. late Thimmegowda Aged about 52 years R/a. Hosahalli Kasaba Hobli K.R. Nagara Taluk Mysuru Dist. 571 602.
3. Sri. Palaniyappan @ Nagaraj, S/o. Subhan Aged about 48 years R/a. Hampapura Village K.R. Nagara Taluk Mysuru Dist. 571 601.
4. Sri. Sahir S/o. Syed Alvi Aged about 38 years 5. Sri. Safwan S/o. Musa Kutti Aged about 22 years 6. Sri. Sudheesh @ Babu S/o. Armugan Aged about 34 years Petitioners 4 to 6 are R/a. Harikodu Village Manjeri Taluk Malappuram District Kerala State – 676 121. … PETITIONERS (By Sri. C.R. Gopalaswamy, Adv.) AND :
1. State of Karnataka by Arehalli Police Station Hassan District Rep. by State Public Prosecutor High Court Building Bengaluru – 560 001.
2. Sri. Arokiyappa S Police Sub Inspector Arehalli, Belur Taluk Hassan District – 573 101. … RESPONDENTS (By Sri. Nasrulla Khan, HCGP) ---
This Crl.P. is filed under Section 482 Cr.P.C. with a prayer to quash the registration of FIR by the first respondent vide Cr.No. 48/2015 on the file of the Civil Judge and JMFC, Belur, Hassan District, Hassan and etc.
This Crl.P. coming on for Admission this day, the Court passed the following;
O R D E R Petitioners have sought to quash the FIR in crime No. 48/2015 registered for the offences punishable under Section 379, 420 read with Section 34 IPC and Section 4(1A) and 21 of Mines and Minerals Regulation of Development Act, 1957 (hereinafter referred to as the `MMRD Act’).
2. Learned counsel for the petitioners has raised two fold contentions. Firstly he contends, that the FIR has been registered by the Police contrary to the provisions of Section 22 of MMDR Act which requires proceedings to be launched by the authorized officer under the said Act; secondly he contends, that the petitioners are lawful contractors who had entered into an agreement with the State for excavation and transportation of sand. In support of this argument the learned counsel has referred to Annexure G.
3. Learned HCGP has opposed the submission and would submit that the petitioners herein were found illegally excavating sand without any valid permit and therefore the allegations made in the complaint clearly make out the ingredients of offence under the MMRD Act as well as Section 420 and 379 IPC.
4. Considered the submissions and perused the records.
5. Learned counsel for the petitioners has placed reliance on the order passed by this Court in Criminal Petition No.4250/2018 dated 28.06.2018 wherein relying on the proposition of law laid down in Sri Vivek and Another vs. The State of Karnataka by Kunigal Police Station, Tumkur District and Another in ILR 2018 Karnataka 1497, it is held that the police would not get any jurisdiction to register a case under Section 154 of Cr.P.C. and investigate the matter and to file any report under section 173 of Cr.P.C. nor the courts have jurisdiction to receive such reports under section 173 of Cr.P.C., and to take cognizance for the offences punishable under the Mines and Minerals (Development and Regulation) Act, 1957, in view of the specific bar under Section 22 of MMRD Act, which contemplates a private complaint by the competent Officer notified by the State Government or the Central Government. In the above decision, it is made clear that the Police have no power and jurisdiction to investigate the offence under the provisions of MMRD Act.
6. In the instant case, it is not in dispute that the criminal process was set in motion by respondent No. 2 – Sub-Inspector of Police, Arehalli Police Station by lodging a complaint. FIR was registered in Crime No. 48/2015 for the above offences. In view of the law laid down in the above decision, initiation of the proceedings being illegal and in violation of the bar contained in Section 22 of MMDR Act, the petition deserves to be partly allowed.
7. Insofar as the second contention raised by the learned counsel for the petitioners is concerned, records indicate that the petitioners were the successful bidders for excavation of sand, loading, transporting, stocking of sand at sand depots and loading to vehicles from Narve village, Begur taluk, Hassan District in survey numbers 68, 77, 79, 81 of Begur taluk. As on the date of alleged commission of offence the said contract was not finalized. Annexure G indicates that petitioners entered into final agreement with the Executive Engineer, P.W.D., Hassan only on 24.04.2015. In terms of the said agreement the extraction of sand, loading, transportation etc., was permitted from the date of commencement upto 29.12.2016. Therefore, the contention of the learned counsel for the petitioners that as on the date of commission of the alleged offence, petitioners were lawful contractors and holding valid permit for extraction and transportation of sand cannot be accepted.
8. Hence, petition is partly allowed. The registration of FIR for the offences punishable under Section 4(1A) and 21 of MMRD Act is quashed. Liberty is reserved to the competent authorities to take recourse to the provisions of MMRD Act by complying with the requirements of the MMRD Act in accordance with law. The investigation shall continue only for the offences punishable under Section 379, 420 read with Section 34 of IPC.
9. In view of the contention of the learned counsel for the petitioners that all the accused shown in the FIR are not involved in the offence, the Investigating Officer shall consider the same in the course of investigation and shall submit appropriate report after collecting necessary proof of commission of offence. Liberty is reserved to the petitioners to take appropriate action challenging the further action of the Investigating Officer in accordance with law.
Sd/- JUDGE.
LRS.