IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL APPEAL No.201 OF 2018 BETWEEN:
1. Gopalakrishna, S/o. Hanumanthaiah, Aged about 26 years, R/at Kamanahalli Village, Kottagere Hobli, Kunigal Taluk, Tumkur District – 572 101.
2. Gangadharaiah, S/o. Chikkasanaiah, Aged about 58 years, R/at Doddamalalavadi Village, Kottagere Hobli, Kunigal Taluk, Tumkur District – 572 101.
3. Vijayanarasimha, S/o. Srinivasaiah, Aged about 47 years, R/at Doddamalalavadi Village, Kottagere Hobli, Kunigal Taluk, Tumkur District – 572 101.
4. Ganganarasaiah, Aged about 60 years, R/at Doddamalalavadi Village, Kottagere Hobli, Kunigal Taluk, Tumkur District – 572 101. …Appellants (By Smt. Rattihalli Geetha Veeranna, Advocate for Sri. Mohan Kumar D., Advocate) AND:
State of Karnataka, By Kunigal Police, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001. ...Respondent (By Sri. K. Nageshwarapaa, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction dated 22.01.2018 passed by the Principal Sessions / Special Judge, Tumakuru in Spl.C.No.434/2016 convicting the appellants/accused Nos.1 to 4 for the offence punishable under Section 4(1A) r/w 21 of Mines and Minerals (Development and Regulation) Act.
This Criminal 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 22.01.2018 passed in Spl.C.No.434/2016 by the Principal District & Sessions/Special Judge, Tumakuru, for the offence punishable under Section 4(1A) of Mines and Minerals (Development & Regulation) Act, 1957 (hereinafter referred to as ‘MMDR Act’, for short), sentencing accused Nos.1 to 4 to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.15,000/- each and in default of payment of fine amount, shall undergo further simple imprisonment for a period of 1½ months.
2. Brief facts of the case:
On 28.12.2015 morning at 7.00 A.M., the P.S.I. of Kunigal Police Station was on patrolling duty along with his staff and found these accused persons transporting the sand in two tractors attached with trailers and accused persons did not produce any license or any permit and they were indulged in transporting sand causing loss to the State exchequer and hence, case has been registered. After investigation, police have filed the charge sheet for the offence punishable under Section 21(1) of MMDR Act and Section 379 of IPC r/w Section 44(1) of Karnataka Minor Mineral Consistent Rule, 1994. The accused persons were secured before the Court and charge has been framed against accused Nos.1 to 4 for the offence punishable under Section 4(1A) of MMDR Act. The prosecution in order to prove their case examined seven witnesses PW1 – PW7 and got marked 21 documents Ex.P1 to Ex.P21. Accused have not led any evidence. The Court below after hearing the arguments of Public Prosecutor and defence counsel convicted the accused for the offence punishable under Section 4(1A) r/w 21 of MMDR Act.
3. The grounds of the appeal before this Court is that the Court below has committed an error in considering the evidence of prosecution witnesses PW1 to PW7 and has not considered the crucial aspect that PW2 and PW3 have not supported the case of the prosecution. So also with regard to the seizure mahazar, witnesses PW5 and PW6 have specifically denied the seizure of both tractors and trailers.
4. Learned counsel appearing for the appellants/accused submits that the Court below has committed an error in not appreciating the evidence of the prosecution witnesses in a proper perspective and erroneously convicted the accused persons and imposed fine of Rs.15,000/- each.
5. Per contra, learned HCGP appearing for the respondent/State would contend that the police while filing the charge sheet has invoked Section 379 of IPC and the Court below did not frame charge for the offence punishable under Section 379 of IPC and only proceeded for the offence punishable under Section 4(1A) of MMDR Act, which is erroneous and same requires interference.
6. Having heard the arguments of the learned counsel for the appellants and also the learned HCGP for the respondent-State with regard to the contentions raised in the appeal, the points that arise for consideration are:
i) Whether the Court below has committed an error in proceeding with the case only for the offence punishable under Section 4(1A) of the Mines and Minerals (Development and Regulation) Act, 1957 and whether it requires interference by this Court?
ii) Whether the Court below has committed an error in not proceeding with Section 379 of IPC even though the said offence is invoked and whether it requires interference by this Court?
iii) What order?
Point No.1 and 2:
(i) With regard to trial Court proceeding with the offence under Section 4(1A) of the MMDR Act is concerned, there is a bar under Section 22 of the MMDR Act that Court cannot take cognizance for the said offence and Court can only take cognizance based on the complaint filed by the authorized persons. On perusal of records, it is seen that no such complaint is filed before the Court below. Court below has committed an error in taking cognizance for the offence punishable under Section 4(1A) of the MMDR Act based on the police report and the very approach of the trial Court is erroneous. When there is specific bar under the special enactment for taking cognizance, the trial Court ought not to have proceeded in taking cognizance for the offence punishable under Section 4(1A) of the MMDR Act, without a separate complaint by the authorized person. Hence, the very proceedings against the accused is illegal and opposed to law and on that ground itself the impugned judgment of conviction is liable to be set aside.
(ii) On perusal of the charge sheet it discloses that while filing the charge sheet police have invoked Section 379 of IPC and when the said Section is invoked, the trial Court did not frame any charge for the offence punishable under the said Section and only framed charge for the offence punishable under Section 4(1A) of MMDR Act. The Apex Court in State of NCT of Delhi Vs. Sanjay reported in (2014) 9 SCC 772 has categorically held that if the offence under Section 379 of IPC is invoked, the Court has to take cognizance for the said offence and if any charge sheet is filed for the said offence under the Special enactment, in the absence of the private complaint, the trial Court cannot proceed with the case. In the case on hand, the Court below committed an error in not framing charge for the offence punishable under Section 379 of IPC and instead proceeded to frame charge for the offence punishable under Section 4(1A) of the MMDR Act by taking cognizance which is not permitted and hence, on that ground the judgment of conviction and sentence requires to be set aside.
7. In view of the discussions made above, I pass the following :
ORDER (i) Appeal is allowed.
(ii) Impugned judgment of conviction and sentence for the offence punishable under Section 4(1A) of the MMDR Act, is hereby set aside.
(iii) Court below is directed to proceed with regard to the offence under Section 379 of IPC and frame appropriate charge against the accused persons afresh.
(iv) Matter is remanded to the trial Court to dispose the case in accordance with law. The parties to appear before the Court below on 11.11.2019 without expecting any summons from the Court.
In view of acquittal of accused Nos.1 to 4 for the offence punishable under Section 4(1A) of the MMRD Act, the Court below is directed to refund the fine amount, if it is deposited, in favour of accused Nos.1 to 4, on proper identification.
The office is directed to send the Lower Court Records forthwith.
Sd/- JUDGE SV/-