IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.9983 of 2017 BETWEEN:
1. Sri. Umesha @ Ambaresha S/o Gundappa, Aged about 30 years, Kagganahalli Village, Amrutur Hobli – 572 123, Kunigal Taluk, Tumakuru District.
2. Sri. Gundiah, S/o Late Kalasaiah Aged about 55 years, Kagganahalli-Village Amrutur Hobli-572 123 Kunigal Taluk, Tumakuru District.
3. Sri. Gangamuddaiah S/o Huchappa Aged about 48 years, Halageri Village, Amrutur Hobli-572 123. Kunigal Taluk, Tumakuru District.
4. Sri. Venkatesha S/o Yalakkaiah Aged about 47 years, Torebommanahalli Village, Huliyurudurga, Hobli-572 123 Kunigal taluk, Tumakuru District.
(By Sri. Jayanna G.R, Advocate) AND:
The State of Karnataka By Huliyurudurga Police Station Huliyurudurga, Tumakuru District-572 123 (By Sri. S.Chandrashekaraiah, HCGP) …. Petitioners … Respondent This Criminal petition is filed under Section 482 of Code of Criminal Procedure praying to quash the entire proceedings pending before the Additional Civil Judge and JMFC, Kunigal in C.C.No.615/2016 (CR.No.99/2015) filed by the Huliyurdurga Police for the offence punishable under Section 379 and 188 of IPC and under Rule 44(1) of Karnataka Minor Mineral Concession Rules and under Section 21(1) of Mines and Minerals (Development and Regulation) Act and under Sections 3, 181, 192 of Indian Minor Vehicle Act to Stall the abuse of Process of Court.
This petition coming on for Orders, this day, the Court made the following:
ORDER Petitioners are arrayed as accused Nos.1, 2, 4 and 6 in C.C. No.615/2016 (arising out of Crime No.99/2015) pending on the file of Additional Civil Judge (Junior Division) and JMFC, Kunigal for the offence punishable under Sections 379, 188 of Indian Penal Code (for short ‘IPC’), under Rule 44(1) of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘Rules), under Section 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘MMDR Act’) and under Sections 3, 181, 192 of the Motor Vehicles Act, 1988 (for short ‘MV Act’) alleging that petitioner/accused had illegally extracted sand and stealthily transported same and on receiving said credible information, the Assistant Police Sub- Inspector attached to Huliyurudurga Police Station on 18.06.2015 at 5.00 a.m. proceeded to D. Hosahalli- Gollarahalli Gate on Maddur-Kunigal Road tried to stop three lorries coming from Sigipalya and on seeing the police, drivers and occupants of said lorries left the same and sped away from spot. Hence, on the basis of said information, Crime No.99/2015 came to be registered for the above offences and after investigation, charge-sheet has been filed for the same. Hence, petitioners are before this Court for quashing of said proceedings.
2. I have heard the arguments of Sri. S. Chandrashekaraiah, learned HCGP for respondent-State.
3. It is urged in the petition that offences alleged against petitioners are under Section 21(1) of the MMDR Act, the Minor Mineral Concession Rules as well as offence punishable under Section Indian Penal Code and as such, the Competent Authority ought to have filed a complaint as contemplated under Section 22 of the MMDR Act and on the basis of a police report, jurisdictional Magistrate could not have taken cognizance of the alleged offences. Hence, he prays for quashing of the proceedings.
4. Per contra, learned HCGP would support the case of the prosecution.
5. Having heard the learned advocates appearing for the parties and on perusal of records in general and charge-sheet in particular, it would disclose that respondent has not only initiated the proceedings against the petitioners for the offence punishable under Indian Penal Code but also for the offence punishable under MMDR Act and Rules made thereunder and also for violation of provisions of the Motor Vehicles Act.
6. The Hon’ble Apex Court in the case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75 has held that where the offences are punishable under the MMDR Act and Rules made thereunder, no Court can take cognizance of such offences, unless an authorized officer files a complaint under Section 22 of the MMDR Act and in the event of cognizance have been taken on the basis of a police report, such proceedings cannot be continued, as it would be contrary to Section 22 of the Act or in other words, it is contrary to the statutory provision.
7. In such circumstances, Hon’ble Apex Court has held that proceedings are liable to be quashed, inasmuch as accused cannot be made to face the ordeal of trial since the jurisdictional Magistrate could not have taken the cognizance of the offences. Even if taken, it would have no power to convict the accused for want of power to take cognizance on the basis of a police report. By following the judgment of the Hon’ble Apex Court, Co-Ordinate Bench of this Court in the case of Sri. Siri @ K.C. Sree Kumar Vs. State of Karnataka in Crl. P. No.3634/2017 disposed of on 11.04.2018 at para 7 has held as under:
“7. Following the judgment of the Hon’ble Apex Court, Co-ordinate Benches of this Court has consistently held that the proceedings initiated on the basis of a police report for the offence punishable under 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 01.02.2018, 04.12.2017 and 19.03.2018 respectively. As such, continuation of the proceedings against the petitioner in the instant case for the offence punishable under 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.”
8. In the instant case, the proceedings which have been initiated against the petitioners is for the offences punishable under Indian Penal Code, MMDR Act and Rules made thereunder as also under the provisions of Indian Motor Vehicles Act, 1988 which is based on a police report and cognizance has been taken by the jurisdictional Magistrate on the said police report. No complaint under Section 22 of the MMDR Act has been filed by the authorized officer as such, the proceedings initiated against the petitioners in so far as offences punishable under the MMDR Act is concerned, cannot be continued.
Hence, the following:
ORDER i. Criminal Petition is allowed in part.
ii. Proceedings pending against petitioners in C.C. No.615/2016 Crime No.99/2015 in so far as it relates to offences under Section 21(1) of the MMDR Act and Rule 44(1) of Karnataka Minor Mineral Concession Rules are hereby quashed. However, it is made clear that Department of Mines and Geology, Government of Karnataka, would be at liberty to initiate the proceedings under the Act in the manner known to law.
iii. However, the proceedings pending against the petitioners in C.C. No.615/2016 for the offences punishable under Indian Penal Code and Indian Motor Vehicles Act, 1988 shall continue and it shall be adjudicated by the jurisdictional Court in accordance with law.
Sd/- JUDGE MBM