Karnataka High Court
M/S Abhinandan Stone Crushers vs The State Of Karnataka on 21 February, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
W.P. No. 3573/2018 (GM-RES)
BETWEEN
M/S ABHINANDAN STONE CRUSHERS,
REP. BY ITS PROPRIETOR, S.N. SRINIVAS,
S/O S. NARAYANAPPA,AGED ABOUT 45 YEARS
R/AT SONNAPPANAHALLI VILLAGE,JALA HOBLI,
BENGALURU NORTH TALUKA 562 157.
... PETITIONER
(BY SRI. R. G. KOLLE, ADV.)
AND
1. THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
VIDHAN SOUDHA, BENGALURU,
BENGALURU 560 001.
2. THE PRINCIPAL SECRETARY TO GOVT.,
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA, BENGALURU 560 001
3. THE DIRECTOR & COMMISSIONER,
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVAN, RACE COURSE ROAD,
BENGALURU - 560 001.
4. THE SENIOR GEOLOGIST & MEMBER
SECRETARY, DEPARTMENT OF MINES &
GEOLOGY, CHIKKABALLALPURA TALUKA
CHIKKABALLAPURA 562 101.
2
5. THE GEOLOGIST (MINES),
CHIKKABALLAPURA TALUKA,
CHIKKABALLALPURA DISTRICT 562 101.
6. THE SHO & SUB-INSPECTOR OF POLICE,
GUDIBANDE POLICE STATION,
CHIKKABALLAPURA 561209.
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R1 TO R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASH THE OR SET ASIDE THE
COMPLAINT DTD:25.10.2017 FILED BY R-5 GEOLOGIST
AND FIR DTD:25.10.2017 REGISTERED BY R-6 SHO/PSI
PRODUCED AT ANNEXURE-A & B RESPECTIVELY, IN
GUDIBANDE PS AT CRIME NO.340/2017 FOR ALLEGED
OFFENCES UNDER [i] SECTION 379 IPC, [ii] SECTION
4[1], 4[1A] AND 21 OF MMDR ACT, [iii] RULE 42 OF
KMMC RULES, AND [iv] SECTION 3 OF KARNATAKA
REGULATION OF STONE CRUSHER ACT AND RULES,
CONTRARY TO SECTION 2[d] OF CODE OF CRIMINAL
PROCEDURE AND SECTION 22 OF MMDR ACT, 1957.
THIS W.P. COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In this petition, the petitioner has sought for quashing of the entire investigation and registration of a criminal case in Crime No.340/2017.
2. On perusal of the FIR in this case, the Police have registered a case for the offence punishable under 3 Section 379 of IPC and as well as under Section 3(1) of Karnataka Regulation of Stone Crushers Act, 2011 (for short, 'Stone Crushers Act') and also under Sections 4(1), 4(1)(A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act') and under Rule 42 of the Karnataka Mines and Minerals Concession Rules, 1994 (for short, KMMC Rules').
3. In this case, it is the allegation that the petitioner/accused have violated the Stone Crushers Act specifically Rule-3, and crushing the stones without licence or permit and making all arrangements to transport such crushed stones for the purpose of wrongful gain and for the purpose of causing wrongful loss to the Government. Though it is stated that the said offences are being committed in their private lands of the petitioners, nevertheless Police have invoked the provisions under Section379 of IPC.
4. The Hon'ble Apex Court in a decision reported in State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75, has held that,-
"Section 22 of the MMDR Act is not a complete and absolute bar for taking action 4 by the Police for illegal and dishonestly committing theft of minerals including sand from the river bed and other places."
The court has also observed that, though the Police have invoked the provisions under the Indian Penal Code and after investigation, they can only request the Magistrate to take cognizance of offences under the Indian Penal Code and as well as the Explosives Act, as such the Police have no jurisdiction to investigate any offences under the KMMC Rules or under the MMDR Act and also under the Stone Crushers Act on a private complaint as contemplated under Section 2(d) of Cr.P.C. Therefore, the Police have no jurisdiction to investigate and submit any report under Section 173 of Cr.P.C.for the said offences.
5. Further, it is worth to refer here the provision under Section 22 and 17 of the MMDR Act, as noted above and also under Section 2(d) of Cr.P.C., which reads as under:
Sec. 22 of MMDR Act: Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any Rules made hereunder except upon complaint 5 in writing made by a person authorized in this behalf by the Central Government or the State Government."
Sec. 17 of Stone Crushers Act:
Cognizance of offences,-No court shall take cognizance of any offence punishable under this Act or any Rules made hereunder except upon complaint in writing made by a person authorized in this behalf by the Licensing Authority."
.
Sec. 2(d) of Cr.P.C.: 'Complaint'
means any allegation made orally or in
writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a Police report."
6. A plain reading of the above provisions, it is crystal clear that the Police cannot investigate and submit a report under Section 173 of Cr.P.C. for the offences under said the provisions of MMDR Act & KMMC Rules and Stone Crushers Act and Rules framed thereunder . However, there is no bar for the Police to investigate and submit report sofar as the offence under Section 379 of IPC is concerned. Therefore, 6 sofar as Section 379 of IPC is concerned, the petition is too premature. According to the petitioner, it has been carrying out stone crushing without licence and permission from the competent authorities. Therefore, it is at liberty to furnish all those materials to the Police so as to enable the Investigating Agency to file appropriate report to the trial court. If any adverse report is submitted by the police under the provision of IPC, the petitioner is at liberty to approach this court once again for quashing of such proceedings, if the cognizance is taken illegally by the jurisdictional Magistrate.
7. With the above observation, the following order is passed:-
ORDER The petition is partly allowed. The proceedings in Crime No.340/2017 pending on the file of the Principal Civil Judge (Jr.Dn.) and JMFC, Gudibande, Chikkaballapur District District, sofar as the aforesaid offences under MMDR Act, KMMC Rules, Stone Crushers Act concerned and all further investigation therein, are hereby quashed.7
However, the Government Authorities are given liberty to file appropriate complaint as per Section 22 of the MMDR Act and other allied provisions, if advised.
However, the Police are entitled to proceed with the investigation sofar as the offence under Section 379 of IPC is concerned and to file appropriate report to the jurisdiction court, in accordance with law.
Sd/-
JUDGE KGR*