IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.2 OF 2018 BETWEEN:
1. SRI VEERANNA, S/O BADAPPA, AGED ABOUT 41 YEARS.
2. SRI VEERA KARIYANNA, S/O KARIYANNA, AGED ABOUT 25 YEARS.
3. SRI THIPPESWAMY, S/O KENCHANNA, AGED ABOUT 22 YEARS.
4. SRI KRISHNA, S/O BALAKRISHNAMURTHY, AGED ABOUT 24 YEARS.
ALL ARE RESIDENTS OF REDDIHALLI VILLAGE, CHITRADURGA DISTRICT – 577 522. ...APPELLANTS (BY SRI H.V.MANJUNATHA, ADVOCATE) -ABSENT-
AND:
STATE BY PARASHURAMPURA POLICE STATION, CHALLAKERE TALUK CHITRADURGA DISTRICT – 577 522. ...RESPONDENT (BY SRI K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL FILED UNDER SECTIION 374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.12.2017 AND ORDER SENTENCE DATED 07.12.2017 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA IN SPL.C.(MMRD).NO.56 OF 2016 – CONVICTING THE APPELLANT/ACCUSED NOS.1 TO 4 FOR THE OFFENCE PUNISHABLE UNDER SECTION 21(1) OF MINES AND MINERALS DEVELOPMENT ACT AND SECTION 379 OF IPC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment of conviction and sentence dated 06.12.2017 passed in Special Case (MMRD)No.56 of 2016 on the file of the Principal District and Sessions Judge, Chitradurga wherein the appellants/ accused were convicted for the offence punishable under Section 21(1) of M.M.R.D Act and Section 379 of IPC.
2. Brief facts of the case are as under:
It is the case of the prosecution that on 04.11.2015 at about 6.15 a.m., when the P.S.I. of Parashurampura Police Station and their staff on credible information conducted raid at Gopanahally Gate, Challakere Taluk. The accused persons being the owner, driver, cleaner and labourer of lorry bearing Reg.No.KA-16/B-8197 found illegal transportation of sand without having valid license or permit. On enquiry, the accused persons revealed that on 03.11.2015, they extracted sand by theft at Vedavathi riverbed near Chowluru Gate, Challakere Taluk and also involved in loading and transportation of sand without having valid permit and license in the said lorry in contravention of the provisions of Section 4(1A) of M.M.R.D. Act and also invoked Section 379 of IPC. Based on a complaint, a case has been registered against the accused and thereafter investigation is conducted and police have filed the charge-sheet against the accused. The accused did not plead guilty of the aforesaid offences and claimed to be tried. Hence, the prosecution examined PWs-1 to 9 and got marked Exs.P1 to P12. On the basis of the evidence of the prosecution witnesses, statement of the accused under Section 313 of Cr.P.C. is also recorded. The Court below after hearing counsel on both sides and after considering the material placed on record convicted the accused persons. Hence, the present appeal is filed.
3. Learned counsel for the appellants contended that the impugned judgment is illegal, arbitrary and against the probabilities of the case and the prosecution has failed to prove its case beyond reasonable doubt. The Court below has erred in coming to the conclusion that PW-1 and PW-3 are eye witnesses and there is no enmity between them and accused persons and therefore, evidence of PW-1 and PW-3 is trust worthy. The Court below has committed an error in appreciating the evidence as there are contradictions and discrepancies in the evidence of the prosecution. Inspite of the same, the Court below believed the evidence of the prosecution witnesses. Hence, he sought for interference of this Court.
4. Though the matter was listed before this Court on 09.10.2019 and 14.10.2019, learned counsel for the appellant did not appear before this Court and even today, he remained absent. Hence, this Court heard the arguments of the learned HCGP appearing for the Respondent/State and after having heard the arguments and also considering the material evidence placed on record, the points that arise for consideration of this Court are:
i) Whether the Court below has committed an error in convicting the accused for the offence punishable under Sections 21(1) of M.M.R.D. Act and Section 379 of IPC and it requires interference of this Court?
ii) What order?
5. On perusal of the records, it discloses that the I.O. has filed the charge-sheet against the accused persons for the offence punishable under Section 21(1) of M.M.R.D. Act and Section 379 of IPC. It has to be noted that when the special enactment was invoked for the offence punishable under Section 4(1A) of M.M.R.D. Act, the Trial Court ought to have taken note of Section 22 of M.M.R.D. Act and there is a specific bar under Section 22 for taking cognizance of any offence punishable under this Act or any rules made there under except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. The Court below lost sight of the very proviso of Section 22 of M.M.R.D. Act and took cognizance based on the report of the police and the same is opposed to law. Hence, the very conviction for the offence punishable under Section 4(1A) of M.M.R.D. Act is liable to be set aside.
With regard to the offence under Section 379 of IPC, on perusal of the records, the Court below did not frame independent charges for the offence punishable under Section 4(1A) of M.M.R.D. Act and also under Section 379 of IPC. On perusal of the records, it is seen that both the charges are clubbed together and charges have been framed and the same is not in accordance with law and also while considering the points for consideration, charges under Section 4(1A) and Section 21(1) of M.M.R.D. Act are clubbed along with Section 379 of IPC. The Court below has committed an error in not framing independent charges and by considering the material placed on record, for both the offences, i.e., punishable under Section 21(1) of M.M.R.D. Act and Section 379 of IPC common finding is given considering both the offences together. Hence, the very proceedings has to be set aside and fresh trial has to be conducted only for the offence punishable under Section 379 of IPC after framing independent charge under Section 379 of IPC.
6. In view of the above discussion, I pass the following:
ORDER i) The impugned judgment of conviction dated 06.12.2017 and order of sentence dated 07.12.2017 passed in Special Case (MMRD) No.56 of 216 by the Principal District and Sessions Judge, Chitradurga is set aside.
ii) The matter is remanded back to the Trial Court for fresh consideration, in view of the discussion made above.
iii) The parties are directed to appear before the Court below on 11th November, 2019 without expecting any notice from the Court below.
Ordered accordingly.
Sd/- JUDGE DH