Karnataka High Court
Sri Manjegowda vs State Of Karnataka on 11 April, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 11TH DAY OF APRIL 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.9185 OF 2016
CONNECTED WITH
CRIMINAL PETITION NO.8468 OF 2016,
CRIMINAL PETITION NO.9449 OF 2016,
CRIMINAL PETITION NO.9450 OF 2016
AND CRIMINAL PETITION NO.772 OF 2016,
In Crl.P.No.9185/2016
BETWEEN:
1. Sri. Manjegowda,
S/o Doddegowda,
Aged about 40 years.
2. Sri.Rangegowda,
S/o.Doddegowda,
Aged about 37 years.
3. Sri. Doddegowda,
S/o.Late Thimmegowda,
@ Siddegowda,
Aged about 81 years.
Petitioner Nos. 1 to 3
2
Are residing at
R/o. Gulenahalli Village,
Kattaya Hobli,
Hassan Taluk and District
Hassan - 573 201.
...PETITIONERS
(By Shri Bharath Kumar.V, Advocate)
AND:
1. State of Karnataka,
Through Station House Officer,
Gorur Police Station,
Hassan - 573 201.
Represented by
State Public Prosecutor
Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
2. Senior Geologist,
Department of Mines and Geology,
Hassan - 573 201.
...RESPONDENTS
(By Shri Vijayakumar Majage, Additional
State Public Prosecutor, for R1)
*****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to a) quash the FIR
bearing NO.129/2014 dated 13.06.2014 along with the
information dated 13.06.2014 registered with the respondent
no.1 police station for the alleged offences punishable under
Section 4(1a) of the Mines and Mineral (Development and
3
regulation) Act, 1957 and Rule 42 of The Karnataka Mines
Mineral Concession Rules and Section 379 and 420 of IPC
(Annexed vide Annexure-A and A1) and Etc.
In Crl.P.No.8468/2016
BETWEEN:
Sri. Ramesh Kumar,
S/o M. Jeethmal,
Aged about 50 years,
R/o Kothari Complex,
Chikkabashthi Road,
Hassan - 573 201.
...PETITIONER
(By Shri Bharath Kumar.V, Advocate)
AND:
1. State of Karnataka,
Through Station House Officer,
Gorur Police Station,
Hassan - 573 201.
Represented by
State Public Prosecutor
Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
2. Senior Geologist,
Department of Mines and Geology,
Hassan - 573 201.
...RESPONDENTS
(By Shri Vijayakumar Majage, Additional
State Public Prosecutor for R1, R-2 Served)
4
*****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to i) quash the FIR
bearing No.129/2014 along with the information dated
13.06.2014 registered with the respondent No.1 police station
wherein the petitioner/accused no.1 for the alleged offences
under Section 4(1a) of MMDR Act, 1957 and Section 42 of
KMMCR, and Section 379 , 420, of IPC (Annexed vide
Annexure-A and A1 and etc.
In Crl.P.No.9449/2016
BETWEEN:
1. Sri.Mahesh.D,
S/o Dyave Gowda,
Aged aobut 51 years,
R/o Kattaya Village,
Kattaya Hobli,
Hassan - 573 201.
2. Sri.Ramesh Kumar,
S/o M.Jeethmal,
Aged about 50 years,
R/o Kothari Complex,
Chikkabashthi Road,
Hassan - 573 201.
...PETITIONERS
(By Shri Bharath Kumar.V, Advocate)
AND:
1. State of Karnataka,
5
Through Station House Officer,
Gorur Police Station,
Hassan - 573 201.
Represented by
State Public Prosecutor
Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
2. Senior Geologist,
Department of Mines and Geology,
Hassan - 573 201.
...RESPONDENTS
(By Shri Vijayakumar Majage, Additional
State Public Prosecutor for R-1, R-2 Served)
*****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to 1) quash the FIR
bearing No.110/2014 dated 14.05.2014, registered with the
respondent NO.1 Police Station, wherein the petitioners are
indicated for the alleged offence under Section 4(1a) of the
Mines and Mineral (Development and Regulation) Act, 1957
and Section 42 of The Karnataka Minor Mineral Concession
Rules, 1994 and Section 379 and 420 of IPC (Annexed vide
Annexure-A and A1) and etc.
In Crl.P.No. 9450/2016
BETWEEN:
Sri.Ramesh Kumar,
S/o M.Jeethmal,
Aged about 50 years,
R/o Kothari Complex,
6
Chikkabashthi Road,
Hassan - 573 201.
...PETITIONER
(By Shri Bharath Kumar.V, Advocate)
AND:
1. State of Karnataka,
Through Station House Officer,
Gorur Police Station,
Hassan - 573 201.
Represented by
State Public Prosecutor
Hon'ble High Court of Karnataka,
Bengaluru - 560 001.
2. Senior Geologist,
Department of Mines and Geology,
Hassan - 573 201.
...RESPONDENTS
(By Shri Vijayakumar Majage, Additional
State Public Prosecutor for R-1, R-2 Served)
*****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to i) quash the FIR
bearing No.128/2014 along with the information dated
13.06.2014 registered with the respondent No.1 p.s. wherein the
petitioner herein indicated for the alleged offences under
Section 4 (1A) of the Mines and Mineral (Development and
Regulation) Act, 1957 and Section 42 of the Karnataka Minor
Mineral Concession Rules, 1994 and Section 379 and 420 of
IPC (Annexed vide Annexure-A and A1) and etc.
7
In Crl.P.No.772/2016
BETWEEN:
1. Puneeth.S,
S/o Shivananda,
Aged about 25 years,
R/at Amalagundi(V)
Kallambella Post,
Sira Taluk,
Tumakuru - 572 125.
2. Kantharaj B.C,
S/o Late Chikkegowda,
Aged about 55 years,
R/at Bommasandra (V)
Sira Taluk, Tumakuru - 572 137.
...PETITIONERS
(By Shri Sunil Kumar Patel, Advocate for
Shri.S.K.Venkata Reddy, Advocate)
AND:
1. State of Karnataka,
By Challakere Police,
Challakere, Chitradurga - 577 522.
2. Ramachandrappa D.K,
Tahsildar, Challakere Taluk,
Challakere, Chitradurga District - 577 522.
...RESPONDENTS
(By Shri Vijayakumar Majage, Additional,
State Public Prosecutor for R-1)
8
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to set aside the
complaint, dated 13.11.2012 and FIR dated 13.11.2012, in
CR.NO.332/2012, for the offences punishable under Section 4,
4(a), 21(1) of Mines and Minerals (Development and
Regulation) Act, 1957 and 511, 379 of IPC W.R.T. the
petitioners and set aside the charge sheet, filed by respondent
NO.1 registered in C.C.No.579/2013, for the offences
punishable under Section 4, 4(a), 21(1) of MMRD Act, 1957
and 109, 379 of IPC, now pending on the file of the Prl.Civil
Judge and JMFC, Challakere, Chitradurga District, W.R.T
Petitioners.
These Criminal Petitions coming on for Admission this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioners and the learned Additional State Public Prosecutor.
2. The present petitions fall into two categories. The petitions Crl.P.9185/2016, Crl.P.8468/2016, Crl.P.9449/2016 and Crl.P.9450/2016 fall under one category, whereas Criminal Petition No.772/2016 falls under a separate category.
3. It is stated that insofar as the first category of cases are concerned, the petitioners are independent owners of lands in Sy.Nos.43/1, 43/2 and 43/3 of Eraborakavalu village, Kasaba 9 Hobli, Hassan District. The said lands are said to have been leased to Accused No.1 who was a Class-I PWD Contractor and he had obtained the same on lease for the past 25 years for the purpose of storing the quarry stones utilized by him for the purpose of road asphalting and normally, he carries out work for the Public Works Department (PWD) of the State Government.
It transpires that quarry stones of different sizes are crushed in the Crushing Unit installed in the said land and the crushed stones are then transported to places where works are carried out. The Respondent No.2 - Senior Geologist, on the basis of information received, is said to have conducted a raid on 22.10.2013 accompanied by the officers of the Revenue Department and Engineers of the Department of Mines and Geology. On examining the lands, they had found quarry stones to the tune of 3417 metric tonnes and a mahazar was drawn up in respect of the same. Thereafter, a demand notice had been issued on the khathedars of the land, namely the 10 petitioners herein, calling upon them to pay royalty of a sum of Rs.5.12 lakh to the said quarry stones. Since there was no response, the concerned officials had issued yet another demand notice.
It is noticed that Accused No.1 had however replied to the demand notice to state that he was a contractor carrying out works for the PWD and that normally the materials so used by him attracts royalty which is deducted from the bills from the concerned Department and that he would furnish details of the deduction in due course and that there was no illegality in the stones being stored on private land, as the quarrying had been carried out in accordance with law as he was a licenced lease holder of such quarrying. It is in this background that in spite of the demand notice, the quarry stones which were of 3417 metric tonnes had been transported without taking the Respondent No.2 into confidence and stood reduced to a quantity of 941 metric tonnes. Criminal proceedings have been initiated alleging offences punishable under Section 4(1A) of 11 the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the MMDR Act', for brevity) and Section 42 of the Karnataka Minor Mineral Concession Rules, 1994 as well as Sections 379 and 420 of the Indian Penal Code, 1860.
The other three petitions in this category, are also of a similar nature.
4. Whereas the case in Criminal Petition No.772/2016 is as follows:
That on credible information received by the Tahsildar, Challakere Taluk, about 11.30 p.m. on 13.11.2012, the Assistant Executive Engineer, PWD and the Revenue Inspector, Challakere along with the Village Accountant, had proceeded to the Vedavathi river near Yelagatte Gollarahatti Parashuramapura Hobli, Chitradurga District and found a loaded lorry which was about to be transported on the instructions of the owner of the said lorry. Therefore, on the next day, the police had registered a case for offences 12 punishable under Sections 21(1), 4, 4(A) of the MMDR Act and Sections 109 and 379 of the Indian Penal Code, 1860, on the basis of the complaint by the Tahsildar.
It is that which is sought to be questioned in the petition in Crl.P.772/2016. Further, the petitioners having been charge- sheeted, the present petition is filed.
5. The learned counsel for the petitioners would point out that the reliance placed by the learned Additional State Public Prosecutor on the judgment of the Supreme Court in the case of State (NCT of Delhi) vs. Sanjay (2014) 9 SCC 772, would not apply to the facts of the first category of cases as laid down in the very judgment.
It is pointed out that if there is a quarrying licence or lease and if there is irregularity under such a quarrying lease or licence, it would not amount to an offence punishable under Section 378 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) and could at best be 13 prosecuted for an offence punishable under the MMDR Act for violation of the provisions thereunder, in which event, the proceedings that are adopted in the present case on the basis of a complaint other than by an authorized officer in terms of Section 22 of the MMDR Act would be bad and no cognizance could be taken of the same. Invocation of Section 379 IPC is out of place, as it cannot be asserted that there is theft of property belonging to the State. The allegation only of non- payment of royalty is again a seriously disputed fact and material has been produced to indicate that there has been due deduction of royalty by the concerned department over whom the works had been carried out by Accused No.1. Therefore, the entire proceedings are bad in law.
The learned counsel for the petitioner in Crl.P.772/2016 would place reliance on a decision of this court in the case of Ramakrishnaiah vs. State by Madanayakanahalli Police Crl.P.7894 of 2016 dated 28.02.2017, wherein this court on a 14 plain interpretation of the tenor of Section 22 of the MMDR Act, has held that the proceedings initiated under the provisions of the MMDR Act would fall foul of Section 22 in the absence of a complaint by an authorized officer and at best, the proceedings could only go on for an offence punishable under Section 379 IPC.
6. The learned Additional State Public Prosecutor would submit that in terms of the judgment in State (NCT of Delhi) vs. Sanjay, there is no such discretion made as sought to be contended by the learned counsel for the petitioners and that there is no bar for prosecution of the petitioners notwithstanding that there are also offences committed under the provisions of the MMDR Act. When in fact there is an offence of theft committed of state property, there is no impediment to proceed under the provisions of the IPC notwithstanding that the provisions of the MMDR Act are also attracted. In order to consider these rival contentions, we may 15 firstly notice the decision of the Supreme Court in the case of State (NCT of Delhi) vs. Sanjay. The point for consideration in the said judgment was, whether the provisions contained in Sections 21 and 22 and other sections of the MMDR Act operate as a bar against prosecution of a person who has been charged with the allegation which constitutes offences punishable under Sections 379 and 114 as well as other provisions of the IPC. In other words, whether the provisions of the Mines and Minerals Act explicitly or impliedly excludes the provisions of the IPC when the act of the accused is an offence both under the IPC and under the provisions of the MMDR Act.
After discussing the case law and the provisions of law at length, the Supreme Court has held that there cannot be any dispute with regard to the restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer 16 empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the MMDR Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the MMDR Act and not for any act or omission which constitute an offence under the IPC.
It is also stated by the Apex Court that however, there may be a situation where a person without any lease or licence or any authority enters into a river and extracts sand, gravels 17 and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, would be liable to be punished for committing such offence under Sections 378 and 379 of the IPC. And from a close reading of the provisions of MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power 18 under the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity) and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Cr.P.C.
7. Therefore, in the light of the law as categorically laid down herein, the first category of cases fall under the former portion of the opinion expressed by the Supreme Court. In that, there is a clear bar for proceeding under the provisions of the IPC when the allegations are of irregularity committed by a person holding a quarrying licence and the case in Crl.P.772/2016 of the second category would certainly fall under the latter portion of the opinion expressed by the 19 Supreme Court, as admittedly there was no licence or lease in respect of quarrying of the sand and it was alleged to be illegally being transported and would certainly attract the provisions of the IPC and could be prosecuted for offences punishable under the IPC. No doubt, the invocation of the provisions of the MMDR Act as laid down by a co-ordinate Bench in Crl.P.7894/2016 would apply and that the provisions could not be invoked in the absence of a complaint by an authorized officer as contemplated under Section 22 of the MMDR Act.
Consequently, the petitions in Criminal Petitions 9185/2016, 8468/2016, 9449/2016 and 9450/2016 are allowed and the proceedings initiated against the petitioners in respect of each of the above petitions stand quashed.
As far as Crl.P.No.772/2016 is concerned, the proceedings initiated under the provisions of the MMDR Act and Rules thereof stand quashed. It is open for the respondent 20 to proceed against the petitioners for offences punishable under the Indian Penal Code, 1860.
However, the State is not precluded from initiating appropriate action if it is so warranted in accordance with law, under the MMDR Act against the petitioners.
Sd/-
JUDGE KS