IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.4087/2018 BETWEEN:
1. SUKEETH S/O KRISHNAPPA POOJARY AGED ABOUT 25 YEARS R/AT KANTHARABETTU HOUSE ARAMBODY VILLAGE BELTHANGADY TALUK D.K. – 574 236.
2. SHEKAR POOJARY S/O ANNU POOJARY AGED ABOUT 51 YEARS R/AT KANTHARABETTU HOUSE ARAMBODY VILLAGE BELTHANGADY TALUK D.K. – 574 236.
3. V.M. JOSEPH S/O V.C. MICHEL AGED ABOUT 50 YEARS R/AT PAMATTHIYEL HOUSE ARAMBODY VILLAGE BELTHANGADY TALUK D.K. – 574 236.
4. HARIYENDRA S/O DOMBAYYA POOJARY AGED ABOUT 33 YEARS R/AT PANIMERU HOUSE ARAMBOY VILLAGE BELTHANGADI TLAUK D.K. DISTRICT – 574 236.
(BY SRI. DHANANJAY KUMAR., ADVOCATE) AND:
1. STATE OF KARNATAKA REP. BY VENOOR POLICE BELTHANGADI – 574 201 D.K. DISTRICT, REP. BY SPP HIGH COURT OF KARNATAKA BENGALURU – 560 001.
... PETITIONERS 2. B.K. MOORTHY AGED ABOUT 35 YEARS DEPARTMENT OF MINES AND GEOLOGY MANGALORE TALUK D.K. DISTRICT – 575 001.
... RESPONDENTS (BY SRI. S.T. NAIK., HCGP FOR R-1) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.121/2017 ON THE FILE OF THE PRINCIPAL SESSION AND SPECIAL JUDGE, D.K., DISTRICT, MANGALORE, IN CRIME NO.84/2016 REGISTERED BY THE VENOOR POLICE AS AGAINT THE PETITIONERS FOR THE OFFENCES P/U/S 36, 42, 44, 3 OF KMMC RULES AND SECTION 21(4), 21(4A), 4, 4(1A) OF MINES AND MINERAL REGULATION OF DEVELOPMENT ACT AND SECTION 379 OF IPC VIDE ANNEXURE-A.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners have been arrayed as accused Nos.1 to 4 in C.C.No.121/2017 registered by Venoor Police Station for the offences punishable under Sections 36, 42, 44, 3 of Karnataka Minor Mineral Concession Rules, 1994 (for short ‘Rules’) and Sections 21(4), 21(4A), 4, 4(1A) of Mines and Mineral (Development and Regulation) Act, 1957 (for short ‘Act’) and Section 379 of IPC, on the basis of complaint lodged by one Sri.B.K.Moorthy-complainant on 09.06.2016 before first respondent police alleging that accused No.1 had unauthorisedly stored sand without having valid license. Based on the said complaint first respondent police along with two other officials conducted raid on the said premises and it came to be noticed that sand was stored without paying royalty and without having valid license and sand stored was worth Rs.1,87,000/-. Said complaint came to be registered as FIR in Crime No.84/2016 by first respondent police, which is now pending in C.C.No.121/2017. Hence, petitioners are before this Court for quashing of said proceedings.
2. I have heard the arguments of Sri.Dhananjay Kumar, learned Counsel appearing for petitioners and Sri.S.T.Naik, learned HCGP appearing for first respondent-State. Perused the records.
3. It is the contention of Sri.Dhananjay Kumar, learned counsel appearing for petitioners that petitioners have been falsely implicated as accused without any justifiable reason and alleging that land in which sand was extracted belongs to accused No.2 and as such he submits that continuation of proceedings against petitioners is liable to be quashed. Hence, he prays for allowing the petition.
4. Per contra, Sri.S.T.Naik, learned HCGP appearing for first respondent-State would support the order passed by Sessions Court and prays for rejection of the petition.
5. Having heard the learned Advocates appearing for the parties and on perusal of 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 MMDR Act and Rules made thereunder.
6. The 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 MMDR 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 the 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 these circumstances, Hon’ble Apex Court has held that such proceedings are liable to be quashed, inasmuch as, accused cannot be made to face the ordeal of trial since 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 Hon’ble Apex Court, Co-ordinate Benches of this Court have consistently held that proceedings initiated on the basis of a Police report for the offences punishable under the MMDR 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 proceedings against petitioners 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 petitioners in terms of Section 22 of the MMDR Act.
8. Now turning my attention to the contention raised by the learned Counsel for petitioners that petitioners have been falsely implicated, when seen in the background of case papers, it would not detain this Court for long to brush aside said contention for the reason that jurisdictional Police, who conducted the raid and apprehended accused Nos.1 to 4, have alleged that petitioners have also indulged in theft of sand. As to whether procedure followed to register the complaint by second respondent is correct or not, are all issues, which will have to be thrashed out after trial and at this stage, in exercise of extraordinary jurisdiction, this Court would not be in a position to quash the proceedings insofar as offence under the Indian Penal Code, which has been alleged against the petitioners.
9. Hence, for the reasons aforestated, I proceed to pass the following order:
ORDER (i) Criminal Petition is hereby allowed in part.
(ii) Proceedings pending against petitioners in C.C.No.121/2017 insofar as it relates offences punishable under Sections 36, 42, 44, 3 of KMMC Rules, 1994 and Sections 21(4), 21(4A), 4, 4(1A) of MMDR Act, 1957 * are hereby quashed.
(iii) The Department of Mines and Geology, Government of Karnataka, would be at liberty to initiate proceedings under the Act in the manner known to law;
* Corrected V.C.O. dated 04-04-2019.
(iv) However, proceedings pending against the petitioners for the offences punishable under Section 379 of IPC shall be proceeded in accordance with law.
SD/-
JUDGE DR