Karnataka High Court
Smt Shivalingamma vs The State Of Karnataka on 6 February, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
Crl.P.No.7522/2017 C/w Crl.P.Nos.7700/2017,
9583/2017, 9584/2017 & 582/2018
IN CRL.P. NO.7522 OF 2017
BETWEEN:
1. SMT. SHIVALINGAMMA,
W/O LATE SREENIVASA,
AGED ABOUT 35 YEARS,
SY.NO.33 LAND OWNER,
2. SRI. CHANNEGOWDA @ NARAYANA,
S/O LATE BORALINGAIAH,
AGED ABOUT 29 YEARS,
3. SRI.DEEPAK S/O DASAPPA,
AGED ABOUT 33 YEARS,
ALL ARE R/AT UJJINI VILLAGE,
KUNIGAL TALUK,
TUMAKURU DIST.-572123..
.....PETITIONERS
(BY JAYANNA G.R.ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY HULIYURUDURGA POLICE STATION,
HULIYURUDURGA, TUMAKURU-572123.
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
LPENDING BEFORE THE ADDITIONAL CIVIL JUDGE
(JR.DN.). AND J.M.F.C., KUNIGAL IN .C.C.NO.1193/2016
(CR.NO.44/2015) FILED BY THE HULIYURUDURGA POLICE
FOR THE OFFENCE PUNISHABLE UNDER SECTION 379 OF
IPC AND SECTION 21(1) OF MINES AND MINERALS
(DEVELOPMENT OF REGULATION) ACT AND RULE 44(1)
OF KARNATAKA MINOR MINERAL CONCESSION RULE AND
A UNDER SECTION 3 AND 181 OF INDIAN MOTOR
VEHICLE ACT AND STALL THE ABUSE OF PROCESS OF
COURT.
IN CRL.P. NO.7700 OF 2017
BETWEEN:
1. SRI. UDAYAKUMAR K.G.,
S/O GANGANNA,
AGED ABOUT 38 YEARS,
KA-06-TB9560,
TRACTOR DRIVER,
KAREGOWDANAHALLI VILLAGE,
GUBBI TALUK, TUMAKURU-DIST,
PIN-572299.
2. SRI. ANANDH S/O BORAIAH,
AGED ABOUT 25 YEARS,
KA-06-TB9560,
TRACTOR OWNER,
CHIKKAMAVATHURU-VILLAGE,
KUNIGAL TALUK,
TUMAKURU DIST-572123.
.....PETITIONERS
(BY JAYANNA G.R.ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY HULIYURUDURGA POLICE STATION,
HULIYURUDURGA, TUMAKURU-572123.
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
3
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
LPENDING BEFORE THE ADDITIONAL CIVIL JUDGE
(JR.DN.). AND J.M.F.C., KUNIGAL IN CR.NO.175/2017
FILED BY THE HULIYURUDURGA POLICE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 379 OF IPC AND
SECTION 4(1), 4(1A), 21(1) OF MINES AND MINERALS
(DEVELOPMENT OF REGULATION) ACT AND RULE 44(1)
OF KARNATAKA MINOR MINERAL CONCESSION RULE TO
STALL THE ABUSE OF PROCESS OF COURT.
IN CRL.P. NO.9583 OF 2017
BETWEEN:
SRI. RUPEESHAKUMARA T,
S/O THIMMAIAH,
AGED ABOUT 23 YEARS,
KA-11-A-0634,
LORRY OWNER,
HULIYURUDURGA HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT,
PIN-572123.
.....PETITIONER
(BY JAYANNA G.R.ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY HULIYURUDURGA POLICE STATION,
HULIYURUDURGA, TUMAKURU-572123.
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
LPENDING BEFORE THE ADDITIONAL CIVIL JUDGE
(JR.DN.). AND J.M.F.C., KUNIGAL IN C.C.NO.1067/2016
(CR.NO.32/2015) FILED BY THE HULIYURUDURGA POLICE
FOR THE OFFENCE PUNISHABLE UNDER SECTION 379,
4
188 OF IPC, UNDER RULE 44(1) OF KARNATAKA MINOR
MINERAL CONCESSION RULE, UNDER SECTION 21(1) OF
MINES AND MINERALS (DEVELOPMENT OF REGULATION)
ACT AND UNDER SECTION 181 OF THIE INDIAN MOTOR
VEHICLE ACT TO STALL THE ABUSE OF PROCESS OF
COURT.
IN CRL.P. NO.9584 OF 2017
BETWEEN:
1. SRI.RUPEESHAKUMARA T
S/O THIMMAIAH,
AGED ABOUT 25 YEARS,
KA-02-C-8499,
LORRY DRIVER,
TOREBOMMANAHALLI VILLAGE,
HULIYURUDURGA HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT,
PIN-572123.
2. SRI. DEELIPA,
S/O SRINIVASA,
AGED ABOUT 20 YEARS,
KA-19-D-7882,
LORRY DRIVER,
BEKARALE VILLAGE,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DIST-571425,
3. SRI.LOHITHA,
S/O PUTTASWAMY,
AGED ABOUT 35 YEARS,
KA-19-D-7882,
PATHELANAKOPPALU,
KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT,
PIN-571425.
.....PETITIONERS
(BY JAYANNA G.R.ADVOCATE)
5
AND:
THE STATE OF KARNATAKA,
BY HULIYURUDURGA POLICE STATION,
HULIYURUDURGA, TUMAKURU-572123.
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
LPENDING BEFORE THE ADDITIONAL CIVIL JUDGE
(JR.DN.). AND J.M.F.C., KUNIGAL IN .C.C.NO.1252/2016
(CR.NO.154/2015) FILED BY THE HULIYURUDURGA
POLICE FOR THE OFFENCE PUNISHABLE UNDER
SECTION 379 OF IPC, UNDER RULE 44(1) OF KARNATAKA
MINOR MINERAL CONCESSION RULE AND UNDER
SECTION 21(1) OF MINES AND MINERALS (DEVELOPMENT
OF REGULATION) ACT.
IN CRL.P. NO.582 OF 2018
BETWEEN:
1. SRI PUNEETHKUMR T A
S/O APPAJIGOWDA
KA-19, D-7882. LORRY OWNER CUM DRIVER
23 YEARS,
TOREBOMMANAHALLI-VILALGE
HULIYURUDURGA HOBLI-572123
KUNIGAL-TQ, TUMAKURU DIST.
2. SRI. KARIYAPPA
S/O CHANNAIAH
KA-52. 8335. LORRY OWNER CUM DRIVER
24 YEARS,
TOREBOMMANAHALLI-VILLAGE
HULIYURUDURGA HOBLI-572123
KUNIGAL-TQ, TUMAKURU DIST.
.....PETITIONERS
(BY JAYANNA G.R.ADVOCATE)
AND:
6
THE STATE OF KARNATAKA,
BY HULIYURUDURGA POLICE STATION,
HULIYURUDURGA, TUMAKURU-572123.
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO QUASH THE ENTIRE
PROCEEDINGS PENDING BEFORE THE ADDITIONAL CIVIL
JUDGE (JR.DVN) AND J.M.F.C KUNIGAL, IN
C.C.NO.1123/2016 FILED BY THE HULIYURUDURGA
POLICE STATION FOR THE OFFENCES P/U/S 379,188 OF
IPC, UNDER RULE 44(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE, SECTION 21(1) OF THE MINES AND
MINERALS DEVELOPMENT AND REGULATION ACT AND
UNDER SECTION 3,181,192,196 OF INDIAN MOTOR
VEHICLE ACT, IN SO FOR PETITIONERS TO STALL THE
ABUSE OF PROCESS OF COURT.
THESE PETITIONS COMING ON FOR 'ORDERS' THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned HCGP.
2. In all the above said cases the learned counsel for the petitioners strenuously contends that the police have investigated the matter under the provisions of Mines and Minerals (Development of Regulation) Act 1957 (for short 'MMRD' for the sake of 7 convenience) and Karnataka Minor Mineral Concession Rules 1994 (for short 'KMMC Rules' for the sake of convenience) and also under the provisions under Section 379 of Indian Penal Code (for short 'IPC' for the sake of convenience) and other allied provisions in some cases under Motor Vehicle Act, 1988 (for short 'IMV Act' for the sake of convenience) and filed the challans before the Jurisdiction Magistrate.
3. The learned counsel canvassed before this Court that so far as it relates to the provisions under the MMRD Act and KMMC Rules, the Magistrate or the Special Court (Sessions Court) has no jurisdiction to take cognizance for the offences on the report submitted by the police under Section 173 of Cr.P.C. It is only on the basis of private complaint the Magistrate/Special Court gets jurisdiction to take appropriate action.
4. On careful perusal of the entire charge sheet papers in the above said cases, it is true that the police after investigation submitted the charge sheets in the above said cases under Section 173 of Cr.P.C. for the 8 offences punishable under the MMRD Act and KMMC Rules and also along with some IPC provisions and provisions under IMV Act. The Magistrate has not looked into the special provision contained in the MMRD Act particularly under Section 22 of MMRD Act. Section 22 of the MMRD Act clearly creates a bar for the Magistrate to take cognizance on the basis of the charge sheet filed by the police.
5. Section 22 of the MMRD Act says in the following manner:
Cognizance of offences - No Court shall take cognizance of any offence under this Act or any Rules made there under except upon complaint in writing made by a person authorized in this behalf by the Central Government or State Government.
6. Therefore, it is clear from the above said provisions that an Authorized Officer by the State Government or Central Government is the person who can only file complaint under Section 2(d) of the Cr.P.C. Unless a private complaint is filed no Court shall take 9 cognizance for the offence punishable under Section MMRD and KMMC Rules thereunder. Therefore, the Magistrate has committed serious error in taking cognizance for the offences under the above said Act and Rules. Therefore, to that extent, order passed by the Magistrate taking cognizance is liable to be quashed.
7. It is worth to mention here the decision reported in AIR 2015 Supreme Court 75 between State of NCT of Delhi with Jaysukh Bavanji Shingalia Vs. State of Gujarat and Another with Malabhai Shalabhai Rabari and Ors, Vs. State of Gujarat and Ors with Kalubhai Dulabhai Khachar Vs. State of Gujarat and Anr. wherein it is held that :
"Section 22 is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.
There cannot be any dispute with regard to 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 empowered and authorized under the Act 10 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 Sec.4 and other provisions of the Act, the police officer cannot insist 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 Sec.22 of the 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 Sec.4 of the Act and not for any act or omission which constitute an offence under Penal Code. However, there may be situation where a person without any lease and licence or any authority enters into river and extracts sands, gravels 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, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code. Merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint can not 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 11 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 Sec.173 of Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in S.190(1)(d) of the Criminal P.C. Therefore in the light of relevant provisions of the MMDR Act vis-à-vis the Code of Criminal Procedure and the Penal Code, the ingredients constituting the offences under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Sec.378 IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. "
8. The Hon'ble Apex Court specifically held that "there cannot be any dispute with regard to the restrictions imposed under the MMRD Act and remedy provided therein and also held that only private complaint is contemplated filed as per Sec.22 of the MMRD Act by the competent person. The Magistrate 12 shall not take cognizance of the offence under the said Act and Rules on the report by police under Section 173 of Cr.P.C. However, Hon'ble Supreme Court has made clear that the offences under the IPC and any other alleged offence under the IMV Act, where the Magistrate is empowered to take cognizance, the police can request the Magistrate to take cognizance for those offences only. Therefore, the Magistrate even on anticipation that a complaint may be filed by the competent person, cannot take cognizance for the offences under MMRD Act and KMMC Rules thereunder. Therefore, to that extent the order of the Magistrate taking cognizance and further proceedings regarding the offences under MMRD Act and KMMC Rules is not bad in Law and the same is liable to be quashed. Hence the following:
ORDER The Crl.P. No. 7522/2017 connected with Crl.P.Nos.7700/2017, 9583/2017, 9584/2017 & 582/2018 are partly allowed.13
Consequently, cognizance taken by the learned Magistrate for the offences punishable under the MMRD Act and KMMC Rules, to that extent, the proceedings is hereby quashed. However, the Authorized Officer is at liberty to move the Court by means of filing private complaint, so far as these offences are concerned.
So far as other offences under Section 379 of IPC and under Sections 3 and 181 of IMV Act are concerned the Magistrate has got jurisdiction to proceed with the Matter. To that extent, Magistrate to take cognizance and proceed with the matter in accordance with Law.
With these observations, all the petitions stand disposed of.
Sd/-
JUDGE JS/-