IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2nd DAY OF APRIL 2019 BEFORE THE HON’BLE Mr. JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.819/2019 Between:
1. Sri.Shankar Reddy, S/o.Sri.Chinnanagi Reddy, Aged about 38 years, R/at KA-50-A-6678 (Car Owner) No.403, Samethanahalli, Chikka Thirupathi Road, Hoskote Taluk, Bengaluru-560 067.
2. Sri.Kishor Kumar Reddy, S/o.Sri.Subbaraya Reddy, Aged about 25 years, R/o.Ganganahalli Village, Somenahalli Hobli, Gudibande Taluk, Chikkaballapura-561 209.
3. Sri.Ranjith Kumar, S/o.Sri.Bachhu Yadav, Aged about 24 years, R/at SVR Concrete, Lakshmipura, Yelahanka Hobli, Bengaluru City-560 064.
Permanent resident of Amjhari Village, Chappadi Post, Sono PS, Jamui District, Jamui, Bihar-811 314. ...Petitioners (By Sri.C.R.Gopalaswamy, Advocate) And:
State of Karnataka, By Vishwanathapura Police Station, Vijayapura Circle, Devanahalli Taluk, Rep. by State Public Prosecutor, High Court Building, Bengaluru-560 001. ...Respondent (By Sri.S.Rachaiah, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to (a) quash the charge sheet filed by the respondent police for the offence punishable under Sections 21(1) and 21(2) of the Mines and Minerals (Development and Regulation) Act, 1957 r/w Sec.379 of IPC, pending on the file of the Additional Civil Judge and JMFC, Devanahalli in C.C.No.3146/2018 (Crime No.105/2018) (b) Quash the impugned order dated 08.08.2018 taking cognizance for the offence p/u/s 21(1) and 21(2) of the Mines and Minerals (Development and Regulations) Act, 1957 r/w Section 379 of IPC, pending on the file of the Additional Civil Judge and JMFC, Devanahalli, in C.C.No.3146/2018 (Crime No.105/2018).
This Petition coming on for Admission, this day, the Court made the following:-
ORDER Petitioners have been arraigned as Accused Nos.1 to 3 in Crime No.105/2008 registered by Vishwanathapura Police Station for the offences punishable under Sections 21(1) and 21(2) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘Act’) alleging that at about 3.00 p.m., A.S.I of Vishwanathapura Police Station, who was on patrolling duty, had noticed a lorry and stopped the same for inspection and had found that said lorry driven by Accused No.3, was carrying stone-jelly illegally and thereafter, Accused No.1 who is the registered owner of the lorry was also arrested. Hence, F.I.R came to be registered against three accused persons in Crime No.105/2018. For quashing of said proceedings, petitioners are before this Court.
2. I have heard the arguments of Sriyuths C.R.Golpalaswamy, learned Counsel appearing for petitioners and S.Rachaiah, learned High Court Government Pleader appearing for the State. Perused the records.
3. It is the contention of Mr.C.R.Gopala Swamy that filing of charge-sheet for the offences punishable under MMDR Act and taking cognizance for the said offences is contrary to law since there is a bar contained in Section 20(ii) of M.M.D.R.Act for the Police to register F.I.R except on a complaint made by an authorised officer. Hence, the petitioners are before this Court contending that continuation of the proceedings against the petitioners are liable to be quashed as it would be without jurisdiction.
4. Per contra, learned Government Pleader appearing for State submits that it was noticed by the raiding party that Petitioner No.3 (accused No.3) was driving the said lorry which was carrying the minor mineral without valid documents issued by Department of Mines. He would also bring to the notice of the Court that statements made by eye- witnesses were also recorded. Though Petitioner No.1 is the owner of the lorry bearing No.KA-50/A- 6678, same had been given to the petitioner No.2(A-2) on rental basis and as such, Petitioner No.1 has been arraigned as Accused No.1 and there is no infirmity in the proceeding initiated against the petitioners. Hence, he prays for rejection of the petition.
5. Having heard the learned Advocates appearing for the parties and on perusal of the records, it is noticed that respondent/authority has not only initiated proceedings against the petitioners for the offences punishable under the Indian Penal Code, but also for the offences punishable under the M.M.D.R. Act and the Rules made thereunder.
6. 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 the Rules made thereunder, no Court can take cognizance of such offence 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. In such circumstances, Hon’ble Apex Court has held proceedings would be 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.
7. 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.
8. Now turning my attention to the contention raised by the learned Counsel for the petitioners that filing of chargesheet for the offences punishable under M.M.D.R.Act and taking cognizance for the said offences is contrary to law deserves to be accepted. In order to take cognizance of the offences under the M.M.D.R.Act and Rules, a private complaint is required to be filed by the competent authority before jurisdictional Magistrate. In the instant case, no such procedure has been followed.
As such, continuation of the proceedings against the petitioner in the instant case for the offences punishable under the MMDR Act and the Rules made thereunder cannot be allowed to continue as it would be an abuse of process of law. However, liberty is being 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.
9. Hence, for the reasons aforestated, I proceed to pass the following order:
1) Criminal Petition is allowed in part.
2) Proceedings initiated against petitioners in Crime No.105/2018 insofar as it relates offences punishable under Sections 21(1) and 21(2) of Mines and Minerals (Development and Regulation) Act, 1957, are hereby quashed and is acquitted of said offences. The Department of Mines and Geology, Government of Karnataka, would be at liberty to initiate appropriate proceedings against petitioners under the Act in the manner known to law and as observed hereinabove.
3) Petitioner is at liberty to file appropriate application for discharge, is so advised before the jurisdictional Court and opinion is expressed on the merits of the case in so far as proceedings initiated for offence punishable under Section 379 of IPC is concerned and same shall be proceeded with.
bnv* SD/- JUDGE