IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.7451/2018 BETWEEN:
1. Sri. Hemantharaj S/o Thimmappa Aged about 37 years R/at Garbagudi Village Harapanahalli Taluk Davanagere District – 577 001.
2. Sri. Raju S/o Shambhanna Aged about 41 years R/at Sangameshwara Nilaya Davanagere District – 577 001.
3. Sri. Ashok S/o Shekharappa Aged about 41 years R/at 4th Main, 4th Cross Yallamma Nagara Davanagere District – 577 001.
4. Sri. Ubedulla S/o Mahaboobulla Aged about 34 years R/at Arasikere Village Harapanahalli Taluk Davanagere District – 577 001.
5. Sri. Haleshappa K.G. S/o Narappa Aged about 27 years R/at Kenchanahalli Village Harihara Taluk Davanagere District – 577 001.
6. Sri. Virupakshappa Y S/o Neelappa Aged about 53 years R/at Jadaganahalli Village Davanagere Gist – 577 001.
7. Sri. Veeresh G.R S/o Rudrappa B.G Aged about 30 years R/at Bullappa Village Harihara Taluk Davanagere District – 577 001.
... PETITIONERS (By Sri. Hareesh Bhandary .T., ADVOCATE) AND:
State of Karnataka Harihara Rural Police Station Rep. by State Public Prosecutor High Court Buildings Bengaluru – 560 001.
(By Sri. S. Rachaiah, HCGP) ... RESPONDENT This Criminal Petition is filed under Section 482 Cr.P.C praying to quash the entire proceedings in C.C.No.827/2017 (Cr.No.60/2016) pending before the Court of Principal Civil judge and JMFC, Harihara, now transferred to Principal District and Sessions Judge, Davanagere for the offence P/U/S 21(1) of M.M.D.R. act and Section 379 of IPC and etc.
This Criminal Petition coming on for Admission this day, the Court made the following:
O R D E R Heard Sri Hareesh Bhandary .T., learned Counsel appearing for petitioners and Sri S. Rachaiah, learned HCGP appearing for respondent-State. Perused the records.
2. The complainant - Sri J.S. Nyamagowdara, Circle Inspector of Police on 12.04.2016 was on duty and on the basis of credible information, he along with his staff and panch witnesses proceeded in a Jeep bearing No.KA-17-G-393 at about 9.30 p.m. When they reached near Kondajji Road at about 10.30 p.m., they noticed eight lorries loaded with sand coming from Kurubarahalli side and by seeing them, drivers of said lorries were escaped from spot leaving their lorries and on interception, it was revealed that they had no valid permit to transport sand. Hence, jurisdictional Police have seized said vehicles and registered an FIR in Crime No.60/2016 for the offence punishable under Section 21(1) of Mines and Minerals Regulations of Development Act, 1957 (hereinafter referred as ‘MMRD Act’ for short) and Section 379 of IPC. After investigation, charge sheet came to be filed for aforesaid offences.
3. It is the contention of Sri Hareesh Bhandary, learned Advocate appearing for petitioners that jurisdictional police in registering an FIR under MMRD Act is abuse of process of law. Special Court constituted under MMRD Act has no jurisdiction to directly take cognizance of the offence under MMRD Act or to receive a final report under Section 173 of Cr.P.C., or to receive any private complaint from authorized officer under MMRD Act. There is no iota of evidence in complaint with regard Section 379 of IPC and jurisdictional Magistrate further erred in taking cognizance of said offence despite there being no complaint filed under Section 22 of the MMRD Act and on the basis of police report, cognizance could not have been taken and as such, he prays for quashing of the proceedings. In support his contention, he has relied on a decision of this Court passed in Crl.P.No.4250/2018 .
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 under Section 379 of IPC and as such, he prays for rejection of the petition.
5. A bare reading of Section 22 of the MMRD Act would disclose that Magistrate would have no jurisdiction to take cognizance for the offences 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 STATE OF NCT DELHI -VS- SANJAY reported in AIR 2015 SC 75 wherein it has been held by the Apex Court that Magistrate can take cognizance of the offences punishable under provisions of Indian Penal Code and would not be empowered to take cognizance for offences alleged under provisions of MMRD Act or the Minor Mineral Concession Rules, 1994 made thereunder on the basis of a police report in view of there being a specific bar contained under Section 22(1) of the MMRD 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 offence punishable under Section 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 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 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 MMRD 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. Hareesh Bhandary, learned Advocate appearing for petitioners that no iota of evidence is there to establish petitioners had indulged in theft of sand 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 sand in question is a matter which will have to be examined by the learned Magistrate Judge after trial.
Hence, I proceed to pass the following:
ORDER i) Criminal Petition is allowed in part;
ii) Proceedings pending against petitioners in C.C.No.827/2017 on the file of Principal Civil Judge and JMFC, Harihara in Cr.No.60/2016 (which is now transferred to Principal District and Sessions Judge, Davanagere) in so far as it relates to filing of charge sheet for the offence punishable under Section 21(1) of the MMRD Act is hereby quashed by reserving liberty to the Department of Mines-State to initiate appropriate proceedings against the petitioners in accordance with law, keeping in mind Section 22 of MMRD Act and no opinion is expressed on merits.
iii) However, it is made clear that in so far as prosecution initiated by respondent against petitioners for the offence punishable under Section 379 of IPC which is now pending on the file of Principal District and Sessions Judge, Davanagere is concerned, can be proceeded before appropriate forum.
iv) Learned Advocate appearing for petitioners would also be at liberty to urge before learned trial Judge for discharge on the basis of material on record before the trial Court if so advised.
In view of petition having been partly allowed, I.A.No.1/2018 for stay does not survive for consideration. Hence, it is rejected.
SD/- JUDGE SN