Karnataka High Court
Namadev Krishnaji @ Krishna Patil vs The State Of Karnataka on 5 October, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05 t h DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .101649 OF 2018
C/w.
CRIMINAL PETITION No .101661 OF 2018
CRIMINAL PETITION No .101685 OF 2018
CRIMINAL PETITION No .101687 OF 2018
CRIMINAL PETITION No .101689 OF 2018
CRIMINAL PETITION No .101709 OF 2018
CRIMINAL PETITION No .101736 OF 2018
CRIMINAL PETITION No .101848 OF 2018
WRIT PETITION No.105616 OF 2018 [GM-RES]
IN Crl.P. No.101649/2018:
BETWEEN:
NAMADEV KRISHNAJI @ KRISHNA PATIL
AGE: 52 YEARS,
OCC: AGRICULTURE,
R/O: BIDARBHAVI,
TQ: KHANAPUR,
DIST: BELAGAVI.
... PETITIONER
(By Sri. VITTHAL S TELI ADV.)
AND:
THE STATE OF KARNATAKA
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REPRESENTED BY ITS
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNANTAKA,
DHARWAD,
THROUGH KHANAPUR POLICE STATION,
KHANAPUR, BELAGAVI.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING THAT ENTIRE PROCEEDING IN
CC.NO.903/2017 (KHANAPUR PS.CR.NO.478/2016)
PENDING ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC-
KHANAPUR FOR THE OFFENCES UNDER SECTION 379 OF IPC
& U/S.21(1) & (4), 22 OF MMDR ACT IN SO FAR PETITIONER
/ ACCUSED NO.4.
IN Crl.P. No.101661/2018:
BETWEEN:
SHRI. JOTIBA PANDURANG SIDHANI
AGE.30 YEARS
OCC.AGRICULTURE
R/O GURLGUNJI
TAL. KHANAPUR
DIST. BELAGAVI
... PETITIONER
(By Sri. VISHWANATH BADIGER ADV.)
AND:
THE STATE OF KARNATAKA
PRESENTED BY ITS
STATE PUBLIC PROSECUTOR
(KHANAPUR P.S.)
HIGH COURT OF KARNATAKA
DHARWAD BENCH
AT. DHARWAD
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO ALLOW THIS PETITION AND
QUASH THE PROCEEDINGS INITIATED AGAINST THE
PETITIONER IN CC.NO.618/2017(CRIME NO.69/2016
REGISTERED BY KHANAPUR PS) FOR THE OFFENCES
PUNISHABLE UNDER SECTION 21(1), (4) OF MINES AND
MINERALS REGULATION OF DEVELOPMENT ACT AND
SEC.379 OF IPC PENDING ON THE FILE OF PRL. CIVIL
JUDGE & JMFC, KHANAPUR.
IN Crl.P. No.101685/2018:
BETWEEN:
VIJAY S/O LAGAMA PUJERI
AGE: MAJOR,
OCC: AGRICULTURE,
R/O: DADDI GUDANATTI,
TQ: HUKKERI,
DIST: BELAGAVI,
PIN: 591309.
... PETITIONER
(By Sri. PRASHANT MATHAPATI ADV.)
AND:
THE STATE OF KARNATAKA
BY YAMAKANMARADI POLICE
REP. BY ADDL SPP,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING THAT ENTIRE PROCEEDING IN
YAMAKANAMARADI RURAL PS.CR.NO.137 OF 2018 FOR THE
OFFENCES U/S.379 OF IPC & U/S.4(1), 4(1A), 21 OF MMDR
ACT 1957 AND RULES 3, 32, 42, 44 OF KARNATAKA MINOR
MINERAL CONCESSION RULES, 1994 ON THE FILE OF ADDL.
CIVIL JUDGE AND JMFC, SANKESHWAR BE QUASHED AS
AGAINST THE PETITIONERS/ACCUSED.
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IN Crl.P. No.101687/2018:
BETWEEN:
SHRI.YALLAPPA VASUDEV TIRAVEER
AGE: 55 YEARS,
OCC: AGRICULTURE,
R/O: BIDARBHAVI,
TQ: KHANAPUR,
DIST: BELAGAVI.
... PETITIONER
(By Sri. VISHWANATH BADIGER ADV.)
AND:
THE STATE OF KARNATAKA
PRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
(KHANAPUR P.S.),
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
AT: DHARWAD.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO ALLOW THIS PETITION AND
QUASH THE PROCEEDINGS INITIATED AGAINST THE
PETITIONER IN CC.NO.925/2017 (CRIME NO.219/2016
REGISTERED BY KHANAPUR PS) FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 4(1), 4(1A) AND SEC.21 OF
MINES AND MINERALS (REGULATION & DEVELOPMENT) ACT
AND SEC.379 OF IPC PENDING ON THE FILE OF PRL. CIVIL
JUDGE & JMFC, KHANAPUR.
IN Crl.P. No.101689/2018:
BETWEEN:
1. HOOVAPPA
S/O YAKKAPPA PARSANNAVAR
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AGE.33 YEARS
OCC. DRIVER OF
(TIPPER NO.KA-26 / A-4898)
R/O HOOLIKATTI VILLAGE
TQ.SAUNDATTI
DISTRICT. BELAGAVI
2. PHAKIRANAYAKA
S/O ALINAKA DODAMANI
AGE.35 YEARS
OCC. BUSINESS &
OWNER OF YELLOW COLOUR JCB,
R/O BHANDARHALLI VILLAGE
TQ. SAUNDATTI
DISTRICT. BELAGAVI
3. BIBIJAN
W/O FAKIRA NAIK DODAMNI
AGE.26 YEARS
OCC. BUSINESS & OWNER OF TIPPER
R/O TEREDEKOPPA VILLAGE
TQ. SAUNDATTI
DISTRICT. BELAGAVI
... PETITIONERS
(By Sri. SRINIVAS B NAIK ADV.)
AND:
THE STATE KARNATAKA
REP BY STATE PUBLIC PROSECUTOR
THROUGH SAUNDATTI PS
DISTRICT. BELAGAVI
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE FIR AND
COMPLAINT IN CRIME NO.135/2018 OF SAUNDATTI POLICE
STATION REGISTERED FOR THE OFFENCE PUNISHABLE
U/SECTION 4(1), 4(1A), 21 & 22 OF MMDR ACT, 1957, SO
FAR THIS PETITIONER IS CONCERNED.
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IN Crl.P. No.101709/2018:
BETWEEN:
1. SHARIF
S/O KHADIRSAB SANADI
AGE.26 YEARS
OCC. DRIVER
R/O KADABI
TQ. SOUNDATTI
DIST. BELAGAVI
2. YALLAPPA
S/O SHIVAPPA MENASI
AGE.54 YEARS,
OCC. AGRICULTURE
R/O. KADABI VILLAGE
TQ. SOUNDATTI
DIST. BELAGAVI
... PETITIONERS
(By Sri. SHIVARAJ P MUDHOL ADV.)
AND:
THE STATE OF KARNATAKA
THROUGH MURAGOD POLICE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
DAHRWAD
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS IN C.C.NO.1066/2018 (crime No.170/2018
OF SAVADATTI P.S.) FOR AN OFFENCE PUNISHABLE UNDER
SECTION 379 IPC AND 4(1)R/W 21 MMRD ACT, 3, 32, 44
KMMC RULE 1994 PENDING ON THE FILE OF THE CIVIL
JUDGE AND JMFC COURT SOUNDATTI BY ALLOWING THIS
PETITION IN SO FOR AS PETITIONERS CONCERNED.
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IN Crl.P. No.101736/2018:
BETWEEN:
1. YALLAPPA S/O SANGAPPA NAIK
AGE: 40 YEARS,
OCC: AGRICULTURE,
R/O: WADISHIDLYAL,
TQ: HUKKERI,
DIST: BELAGAVI,
PIN: 591309.
2. SANGAPPA S/O NINGAPPA NAIK
AGE: 75 YEARS,
OCC: AGRICULTURE,
R/O: WADISHIDLYAL,
TQ: HUKKERI,
DIST: BELAGAVI,
PIN: 591309.
... PETITIONERS
(By Sri. PRASHANT MATHAPATI ADV.)
AND:
THE STATE OF KARNATAKA
BY YAMAKANMARADI POLICE,
REP. BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
BENCH DHARWAD.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO ENTIRE PROCEEDING IN
YAMAKANAMARADI RURAL P.S. CR. NO.134 OF 2018 FOR
THE OFFENCES U/S. 379 & 109 OF IPC & U/S. 4(1), 4(1A),
21 OF MMDR ACT 1957 AND RULES 3, 32, 42, 44 OF
KARNATAKA MINOR MINERAL CONCESSION RULES, 1994 ON
THE FILE OF ADDL. CIVIL JUDGE AND JMFC SANKESHWAR
MAY KINDLY BE QUASHED AS AGAINST THE
PETITIONERS/ACCUSED.
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IN Crl.P. No.101848/2018:
BETWEEN:
KEMPANNA APPANNA YADDALAGUDD
AGE: 28 YEARS,
OCC: DRIVER,
R/O: MALLAPUR, S.A.
TQ: GOKAK,
DIST: BELAGAVI.
... PETITIONER
(By Sri. A B KONI ADV.)
AND:
STATE OF KARNATAKA
SUB INSPECTOR OF POLICE,
ANKALAGI P.S.,
REPT. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BLDG,
HIGH COURT OF KARNATAKA.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE PROCEEDING IN
ANKALAGI P.S. CRIME NO.53/2018 FOR THE OFFENCE
PUNISHABLE U/S 4(1), 4(1A), 21, 42 R/W 22, OF MINES &
MINERALS REGULATION & DEVELOPMENT ACT 1957, AND
SECTION 379 OF IPC AND 3, 32, 44, OF KMMC RULES
PENDING ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND
JMFC, GOKAK.
IN W.P. No.105616 /2018:
BETWEEN:
JOBIN S/O JOHN PAREIRA
AGE: 27 YEARS,
OCC: BUSINESS,
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R/O: MUNDGOD ROAD,
ANKOLA,
TQ: YALLAPUR,
DIST: UTTARA KANNADA (KARWAR)
... PETITIONER
(By Sri. R H ANGADI ADV.)
AND:
POLICE SUB-INSPECTOR
(ANKOLA POLICE STATION),
ANKOLA
R/BY S.P.P./HGCP
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENTIRE CRIMINAL PROCEEDINGS PENDING IN ANKOLA
POLICE STATION AT THEIR P.S.CRIME NO.117/2018,
DATED:04.04.2018 FOR THE OFFENCES PUNISHABLE U/S.
42 & 3 OF KARNATAKA MINOR MINERAL CONCESSION
RULES 1994, AND SEC.4 OF MMRD ACT AND SEC.4(1A),
4(1) OF MINES AND MINERALS REGULATION OF
DEVELOPMENT ACT 1957 AND SEC.379 OF IPC, PENDING
ON THE FILE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
UTTAR KANNADA, KARWAR, VIDE ANNEXUER-A, B & C.
These Petitions coming on for Admission, this day the
Court made the following:
: 10 : Crl. P No.101649/2018
& Connected cases
ORDER
Sri.Praveen K.Uppar learned HCGP accep ts notice for the respondent. With consent of both parties, the matters are taken up for final disposal.
2. Though, all these cases arise out of different Crime numbers of different police stations and p end ing b efore different Courts, since issue involved in the cases is only question of law and the same is common in all these cases, they are taken up together for d isposal by this common order.
3. The respondent police in all these cases registered criminal cases ag ainst the respective petitioners generally for the offences punishab le und er Sections 4, 4(1A), 21, 42 read with Section 22 of the Mines and Minerals (Develop ment and Regulation) Act, 1957 (for short 'MMDR Act') and und er Rules 3, 32 and 44 of the Karnataka Minor Mineral Concessions Rules, 1994 (for short 'Rules') and Section 379 of the Indian Penal Cod e, 1860 (for short 'IPC'), etc. For the purpose of b revity and : 11 : Crl. P No.101649/2018 & Connected cases convenience, the particulars of the Crime numb er, police station, name of the complainant and his designation are set out in the tabular column below:
Complainant's Sl. Crime Case Number Police Stationname and No. Number designation 1 Crl.P. P.S.Pujeri, 478 of 2016 Khanapur P.S. No.101649/2018 PSI (L&O) 2 Crl.P. P.S.Pujeri, 69 of 2016 Khanapur P.S. No.101661/2018 PSI (L&O) 3 Crl.P. Yamakanamaradi S.B.Patil, 137 of 2018 No.101685/2018 P.S. PSI 4 Crl.P. P.S.Pujeri, 219 of 2016 Khanapur P.S. No.101687/2018 PSI (L&O) 5 Crl.P. I.M.Mathapati, 135 of 2018 Saundatti P.S. No.101689/2018 PSI 6 Crl.P. Prasad Phanekar, 170 of 2018 Murgod P.S. No.101709/2018 PSI 7 Crl.P. Yamakanamaradi S.H.Karaning, 134 of 2018 No.101736/2018 P.S. ASI 8 Crl.P. B.L. Uppar, 53 of 2018 Ankalagi P.S. No.101848/2018 PSI 9 W.P. Pramod Kumar 117 of 2018 Ankola P.S. No.105616/2018 B., PI
4. In all the above cases, the alleg ations ag ainst the petitioners were that they were illeg ally extracting / transporting sand -the Government property without valid permit or evad ing payment of required royalty. The alleg ations are that thereby they have committed theft of Government p roperty / sand which constitute the offences punishable under : 12 : Crl. P No.101649/2018 & Connected cases Section 379 IPC and Sections 4, 4(1), 4(1A), 21 & 42 read with Section 22 of the MMDR Act and und er Rules 3, 32 & 44 of the Rules.
5. The learned counsel for the petitioners seek quashing of the aforesaid proceedings on the following grounds:
(i) As per Section 22 of the MMDR Act, only an officer authorised as per Rule 2(1)(a-1-a) of the Rules shall file complaints;
(ii) The comp lainants / informants were not authorised persons to file the complaint.
(iii) Even authorised officers have to file complaint b efore the Mag istrate and not before the Station House Officer of the police station;
(iv) The police are not competent to receive
such complaints and take up
investig ation on such complaints. : 13 : Crl. P No.101649/2018
& Connected cases
6. Sri.Praveen K.uppar, learned HCGP submits that the police are competent to file the report and on such reports register FIR when the complaints is for the offences punishab le under IPC.
7. Therefore, the q uestion involved in all the above cases is whether a complaint for violation of the p rovisions of MMDR Act can be filed before the Station House Officer of a police station and on such complaint whether the respondent police could register the FIR and take up the investig ation?
8. Section 22 of the MMDR Act reads as und er:
"22. Cognizance of offences.―No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.": 14 : Crl. P No.101649/2018
& Connected cases
9. Complaint is d efined in Section 2(d) of the Code of Criminal Procedure, 1973 [for short 'Cr.P.C.'] as follows:
"2. Definitions.--In this Code, unless the context otherwise requires.--
(d) "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."
10. Rule 2(1)(a-1-a) of the Rules d efines the authorised officer as follows:
"2(1) (a-1-a) "Authorised Officer"
means an officer not below the rank of Group B authorized by the State Government or the Commissioner or the Director of Mines and Geology or Deputy Commissioner of the District to act for the specific purpose under these Rules."
11. The p erusal of the above provisions make it clear that the Court is b arred from taking cognizance of the offences und er the MMDR Act or : 15 : Crl. P No.101649/2018 & Connected cases the Rules mad e thereund er unless the comp laint in writing is mad e by the persons authorised under Rule 2(1)(a-1-a) of the Rules. Since Section 2(d) of Cr.P.C. excludes the police report from the definition of complaint essentially the comp laint has to b e filed b efore the Mag istrate.
12. In these cases, complainants have not stated in their complaints that they are the persons authorised und er Rule 2(1)(a-1-a) of the Rules to file complaint. The complaints are not accompanied by any such authorization notifications. Even assuming that they are so authorised , the complaint in respect of the offences und er the MMDR Act and Rules ought to have been filed before the Mag istrate and not before the Station House Officer of the police station.
13. Hon'b le Sup reme Court in p arag rap hs 72 & 73 of the judgment in State (NCT of Delhi) Vs. : 16 : Crl. P No.101649/2018 & Connected cases Sanjay, (2014) 9 SCC 772 case referred to sup ra, in this reg ard has held as follows:
"72. 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, gravel 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 under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other : 17 : Crl. P No.101649/2018 & Connected cases words, in a case where there is a theft of sand and gravel 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 Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-à- vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the : 18 : Crl. P No.101649/2018 & Connected cases receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly."
(Emphasis supplied)
14. A read ing of the above judgment makes it clear that the p olice are not competent to register the FIR for the offences punishab le under MMDR Act or the Rules, but they are not b arred from registering the FIR for the offences punishab le und er IPC. Therefore, the FIR and consequential Criminal proceedings pend ing b efore the Mag istrate in the above cases so far they relate to the offences und er MMDR Act and Rules are liable to be quashed. Therefore, the petitions are p artly allowed. : 19 : Crl. P No.101649/2018
& Connected cases
15. The first information report and other conseq uential p roceedings in the below mentioned cases so far they relate to the offences punishab le und er the MMDR Act and the Rules are hereby quashed:
Sl. Crime
Police Station
No. Number
1
478 of 2016 Khanapur P.S.
2
69 of 2016 Khanapur P.S.
3
137 of 2018 Yamakanamaradi P.S.
4
219 of 2016 Khanapur P.S.
5
135 of 2018 Saundatti P.S.
6
170 of 2018 Murgod P.S.
7
134 of 2018 Yamakanamaradi P.S.
8
53 of 2018 Ankalagi P.S.
9
117 of 2018 Ankola P.S.
Liberty is reserved to the Government to
proceed with regard to the offences under the MMDR Act & the KMMC Rules in the aforesaid cases in accord ance with law.
Sd/-
JUDGE RK/-