IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.2670/2018 BETWEEN:
State of Karnataka by Bantwal Rural Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.
(By Sri. S.Rachaiah, HCGP) AND:
Sri Bharathesh @ Bharathesh Rai M, Age 30 years, S/o Ananth Rai, Mudayur Mane, Padavannur Village, Puttur Taluk-574 201.
…. Petitioner … Respondent (Vide order Dated 12.04.2019 notice to respondent is dispensed with) This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, praying to set aside the order dated 18.01.2018 passed by the Principal District and Sessions Judge, D.K., in Spl.C.No.175/2017 wherein the Special Court was pleased to transmit the records of the case to the Additional Senior Civil Judge, JMFC, Puttur.
This Criminal Petition coming on for Admission this day, the Court made the following:
ORDER In this petition, Puttur Rural police have registered FIR against accused for the alleged offences punishable under Sections 4(1), 4(1A), 21(1) of Mines and Minerals (Development and Regulation) Act, 1957 and Sections 3(1), 42, 43, 44 of Karnataka Minor Mineral Concession Rule and Section 379 of IPC.
2. After completion of investigation, charge- sheet came to be filed and jurisdictional Magistrate has passed committal order and accordingly, case came to committed to the Special Court. However, the jurisdictional Special Court, namely, Principal District and Sessions Judge, Dakshina Kannada having registered the same as special case has re-transmitted the records to the jurisdictional Magistrate Court to examine the records and proceed against the accused insofar as the allegations pertaining to the provisions of Indian Penal Code are concerned by reserving liberty to the Department of Mines and Geology to proceed against the accused upon compliance of mandate of Section 22 of Mines and Minerals (Development and Regulations), Act read with Section 202 of Cr.P.C namely, on filing complaint under Section 22 of MMDR Act. Same is under challenge in the present writ petition by the State contending inter-alia, that Sessions Court erred in holding that it had no jurisdiction to consider the case in view of the bar contained in Section 22 of MMRD Act. It is also contended that learned Sessions Judge erred in not considering the fact that allegations made in the instant case relates to composite offence punishable both under MMDR Act and IPC and as such, learned Sessions Judge could not have held that it had no jurisdiction to entertain the proceedings in the light of bar contained is Section 22 of MMDR Act. It is further contended that bar contained under Section 22 of MMDR Act would apply insofar as offences under the said Act and when offences alleged are also of penal nature viz., composite offences are alleged both under IPC and under MMDR Act, it ought not to have held that Section 22 of MMDR Act would be a bar to proceed further against accused.
3. Having heard the learned HCGP appearing for Petitioner-State and on perusal of case papers it emerges there from that respective accused has been charge-sheeted for the offences punishable both under Mines and Minerals (Development and Regulation) Act, 1957 as well as under the provisions of Indian Penal Code. Insofar as allegations regarding violation of provisions of MMDR Act is concerned, there cannot be any dispute to the proposition that if the offences committed under the said Act, a complaint is required to be filed under Section 22 of the MMDR Act by the competent or concerned officer and in the absence of such complaint being lodged, proceedings cannot be initiated based on a police report. This proposition of law receives support from the dictum laid down by the Hon’ble Apex Court in the case of NCT OF DELHI V/S. SANJAY reported in AIR 2015 SC 75.
4. In the light of aforesaid settled position of law when facts on hand are examined it would indicate that undisputedly there was no complaint filed by the competent officers as prescribed under Section 22 of MMDR Act. Further, jurisdictional Magistrate had taken cognizance of the offence based on the police report, which relates to both the offences viz., under Section MMDR Act and also under the provisions of IPC. However, the jurisdictional Magistrate after having noticed that provisions of MMDR Act had been invoked by the prosecution, it had committed said proceedings to the Special Court on the premise that offences punishable under MMDR Act are exclusively triable by the Special Court. However, jurisdictional Sessions Court has noticed that it would have no jurisdiction to entertain the cases arising under provisions of MMDR Act without compliance of Section 22 of the Act and for the offences under the IPC i.e., Sections 468, 379, 420 read with Section 34 IPC are triable by the Jurisdictional Magistrate.
5. In this background, learned Judge of the Special Court has held that it has no jurisdiction to try the accused for the alleged offences under MMDR Act or Rules made thereunder and as such, has transmitted the records back to the jurisdictional Magistrate and has directed the accused to appear before the said Court on receipt of fresh summons. There is no error committed by the learned Sessions Judge in this regard inasmuch as in the absence of a complaint being filed for the offences alleged under Section 22 of MMDR Act by the competent officer or authorized officer as prescribed under Section 22 of the MMDR Act, Sessions Court would not get jurisdiction to take cognizance for said offences and it would have no jurisdiction to conduct trial at all insofar as offences punishable under Indian Penal Code provision invoked in the cases as they are exclusively triable by the Magistrate. As such, matter has been rightly remitted back to the learned Magistrate and in this background, it is being held that learned Magistrate would be empowered to pass appropriate orders including continuation of proceedings under the provisions of MMDR Act by considering the law laid down by the Hon’ble Apex Court in the case of NCT OF DELHI V/S. SANJAY reported in AIR 2015 SC 75 referred herein supra. He would also be at liberty to pass orders for discharging the accused for the offences for the offences punishable under MMDR Act, in view of there being no complaint filed under Section 22 of the Act and of course, by reserving liberty to the Department of Mines and Geology to file appropriate complaint, if so advised, in that regard before the jurisdictional Court. The learned Magistrate would also be at liberty to pass such other suitable orders as deemed fit in the event of such complaint being filed.
Subject to above observations, petition stands disposed of.
Sd/- JUDGE ag