Karnataka High Court
Sri Linganagouda vs The State Of Karnataka on 28 March, 2017
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 28TH DAY OF MARCH 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No. 5684 OF 2015
CONNECTED WITH
CRIMINAL PETITION Nos. 5685 OF 2015,
5686 OF 2015, 5945 OF 2015, 6689 OF 2015,
6872 OF 2015, 6873 OF 2015, 6874 OF 2015
In Crl.P No.5684/2015
BETWEEN:
Sri. Linganagouda,
S/o Basangagouda Thondihal,
Aged about 72 years,
Agriculturist,
R/o Kuknoor Village,
Yelaburga Taluk,
Koppal District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
2
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.4/2014 now re-registered as Cr.No.32/2014 filed for the
offences punishable under Section 21 for the alleged violation
of Sub-Section(1) of the Section 4 of mines and minerals
(Development & Regulation) Act and for the violation of rules
43 and 46 of the KMMC rules on the file of the 23rd Additional
City Civil and Spl.Judge, Bengaluru City.
In Crl.P No.5685/2015
BETWEEN:
Sri. Venkatesh Babu,
S/o Sundara Naidu,
Age 57 years,
Occ-Business,
R/o Malligi, Kuknoor Village,
Yelaburga Taluk,
Koppal District.
...Petitioner
3
(By Shri L.M.Chidanandayya, Advocate)
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.4/2014 now re-registered as Cr.No.32/2014 filed for the
offences punishable under Section 21 for the alleged violation
of Sub-Section(1) of the Section 4 of mines and minerals
(Development & Regulation) Act and for the violation of rules
43 and 46 of the KMMC rules on the file of the 23rd Additional
City Civil and Spl.Judge, Bengaluru City.
In Crl.P No.5686/2015
BETWEEN:
Sri. Premchand Jain,
S/o Bavarlal Jain,
Aged about 52 years,
Vardhaman Trading Company,
Fertilizer Dealers, Main Road,
Kuknoor,
Yelaburga Taluk,
4
Koppal District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.4/2014 now re-registered as Cr.No.32/2014 filed for the
offences punishable under Section 21 for the alleged violation
of Sub-Section(1)) of the Section 4 of mines and minerals
(Development & Regulation) Act and for the violation of rules
43 and 46 of the KMMC rules on the file of the 23rd Additional
City Civil and Spl.Judge, Bengaluru City.
In Crl.P No.5945/2015
BETWEEN:
Sri.Mallikarjuna Gouda,
Son of Sri Sangana Gouda,
Aged about 38 years,
Residing at Talkal Village,
Talkal Post - 583 238
5
Yelaburga Taluk
Koppal District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.4/2014 which was re-registered as Cr.No.32/2014 filed
for the offences punishable under Section 21 for the alleged
violation of Sub-Section(1) of the Section 4 of mines and
minerals (Development & Regulation) Act and for the violation
of rules 43 and 46 of the KMMC rules on the file of the 23rd
Additional City Civil and S.J., and Spl. Judge for prevention of
corruption Act, Bengaluru City.
In Crl.P No.6689/2015
BETWEEN:
Sri Shekarappa,
Son of Eshwarappa Hanagal,
6
Aged about 50 years,
Residing at Kuknoor Village,
Yelaburga Taluk,
Koppal District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.32/2014 filed for the offences punishable under Section
420 r/w Sections 120B, of I.P.C., Sub Section(1) of Section
13(1) (c) (D) of the prevention of corruption act on the file of
23rd Additional City Civil Spl.Judge, Bengaluru
In Crl.P No.6872/2015
BETWEEN:
Sri.Sharanappa.S.Pawar,
Son of Sri.Shettappa,
Aged about 44 years,
Residing at Ward No.2
7
Basavanagar, Near Hanumasagr Road,
Ilakal 587 125, Hungund Taluk
Bagalkot District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru - 560 024.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.35/2014 filed for the offences punishable under Section
418, 420 r/w Section 120B, of the IPC, Sub-section(1) of
Section 4 and Section 21 rule 43 and 46 of the Karnataka Minor
Mineral Concession Rules, and Section 13(1) (c) (d) r/w
Section 13(2) of the Prevention of Corruption Act on the file of
23rd Additional City Civil Spl. Judge, Bengaluru.
In Crl.P No.6873/2015
BETWEEN:
Sangappa
S/o Mailarappa Olekar,
8
Aged about 48 years,
R/o ward No.02
Opp.Ayurved College, Basavanagar,
Ilakal, Hunagund Taluk
Bagalkot District - 587 125.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
The State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.35/2014 filed for the offences punishable under Section
418, 420 r/w Section 120B, of the IPC, Sub-section(1) of
Section 4 and Section 21 rule 43 and 46 of the Karnataka Minor
Mineral Concession Rules, and Section 13(1) (c) (d) r/w
Section 13(2) of the Prevention of Corruption Act on the file of
23rd Additional City Civil Spl. Judge, Bengaluru.
In Crl.P No.6874/2015
BETWEEN:
Sri.Bhadrappa Lamani @ Chawan,
9
Son of Sri Chandrappa Chawan,
Aged about 49 years,
Residing at Ward No.2
Basavanagar, Near Hanumasagr Road,
Ilakal 587 125, Hungund Taluk
Bagalkot District.
...Petitioner
(By Shri L.M.Chidanandayya, Advocate)
AND:
State of Karnataka,
Represented by Superintendent of Police,
Special Investigation Team,
Karnataka Lokayukta,
UAS Building, Veternity College,
Hebbal, Bengaluru City
Bengaluru - 560 024.
...Respondent
(By Shri P.Govindan, Special Public Prosecutor)
This Criminal Petition is filed under Section 482 of
Code of Criminal Procedure praying to quash the entire
criminal proceedings initiated against the petitioner in
Cr.No.35/2014 filed for the offences punishable under Section
418, 420 r/w Section 120B, of the IPC, Sub-section(1) of
Section 4 and Section 21 rule 43 and 46 of the Karnataka Minor
Mineral Concession Rules, and Section 13(1) (c) (d) of the
Prevention of Corruption Act on the file of 23rd Additional City
Civil Spl. Judge, Bengaluru.
These Criminal Petitions coming on for Admission this
day, the court made the following:
10
ORDER
Heard the learned Counsel for the petitioners and the learned State Public Prosecutor.
2. These petitions are disposed of by this common order.
3. These cases are filed under three categories. Insofar as the first category of cases is concerned, the petitioners therein had conducted quarrying operations on the basis of the interim orders passed by this court in certain writ petitions that were filed in the year 1993. Since there was inconclusive findings by this court, the petitioners therein had to stop quarrying and therefore there were instances where the granite which was mined being left on the place where quarrying activities were carried on, but they were abandoned.
The second category of cases where quarrying licences had been obtained, but on expiry of the period, the same had not been renewed. The third category are those cases where the petitioners had filed applications for quarrying licence and no 11 quarrying activities were done. Those applications seeking working permits are pending before the Government.
It is in this background that on the basis of First information Reports registered before the Magistrate, that investigation was being carried on. These FIRs were said to have been transferred to the Special Investigation Team (SIT) attached to the Lokayukta, which was constituted by the State Government vide notification dated 22.11.2013. The Government Order of the said date indicates that the State Government, after considering the recommendation of the Lokayukta in the Second Part of the Report dated 27.7.2011, where there was need for further inquiry and in the wake of an order passed by the Supreme Court dated 16.9.2013, the Government, in supersession of its earlier order dated 25.6.2012, entrusted cases enumerated in Annexure -A appended to the said Government Order for detailed investigation by the Karnataka Lokayukta and further investigation by the Lokayuktha Police. Therefore, it is 12 contended that the investigation into the activities of the present petitioners is traced to this notification and Annexure-A to the said Government Order, which enlists the report of the Lokayukta and the matters on which detailed investigation is to be carried on. Significantly, as pointed out by the learned Counsel for the petitioners, there is no indication of any investigation being required to be carried out insofar as the quarrying operations are concerned.
4. The learned Counsel for the petitioners would further point out that the offences alleged, particularly under the provisions of the Mines and Minerals (Development and Regulation)Act, 1957 (Hereinafter referred to as the 'MMDR Act', for brevity) would require compliance with Section 22, which mandates that no court shall take cognizance of an offence under the Act, unless a complaint is lodged before the Magistrate by an officer authorized either by the Central Government or the State Government. In the admitted facts and circumstances, since the Lokayukta Police have chosen to file 13 the FIR, which is now taken over by the SIT, either the Lokayukta Police or the SIT, therefore, did not file any complaint, as they were not authorized persons as contemplated under notifications specifically issued by the State Government in this regard, which is dated 21.1.2014. Under the gazette notification dated 21.1.2014, the State Government has specifically designated officers and authorities who would have the jurisdiction to file a complaint in terms of Section 22 of the MMDR Act and consequently, neither the Lokayukta Police nor the SIT are designated as the authority to file such a complaint. Therefore, the ground to seek that the proceedings be quashed as there is no power to investigate offences under the MMDR Act nor to file a complaint for an offence punishable under the said Act, under Section 22, was vested with the Lokayuktha Police or the SIT.
Secondly, it is contended that the land in question is patta land and the mineral vests with the owners of the land and with the State Government. Therefore as laid down by the Supreme 14 Court in the case of Thressiamma Jacob and Others vs. Geologist, Department of Mining and Geology, (2013)9 SCC 725, the Supreme Court has laid down which was left undecided by this court in a full bench decision and it was held that all mineral lying in patta lands would be the absolute property of the land owners and the question of obtaining lease or licence from the State Government would not be necessary. However, it is admitted that the working permit would be necessary, which is a regulatory measure to ensure that the land is converted for non-agricultural purpose and that there is environmental clearance in carrying on any quarrying operations. Beyond this, there is no restriction on the owner of the land to exploit the mineral which vests in the owner of the land. Therefore, the initiation of criminal prosecution is without jurisdiction and is wholly illegal. The presumption that there is quarrying operations to be carried out is not with reference to each of the petitioners and as a general allegation against all the patta land owners and therefore, the entire 15 prosecution is misconceived and illegal. The position that the mineral in patta land vests with the owners of the land has been endorsed by the State Government in its Annexures. The State Government, while discussing the judgment of the Supreme Court has also endorsed the view that the mineral in patta land would vest with the owner of the patta land and in that view of the matter, the cases instituted against the petitioners are without legal basis and require to be quashed.
On the other hand, the learned State Public Prosecutor would seek to contend that the assertion as to the Lokayukta Police and the SIT not being authorized to institute proceedings under the MMDR Act is misleading and incorrect. The SIT that is constituted by the State Government not only is authorized to investigate matters that are enlisted along with the Government Order dated 22.11.2013, wherein the matters that require detailed investigation by the Lokayukta is enlisted, has not restricted to the same. Since the Inspector General of Police is the head and the SIT is declared as the police station vide 16 Notification dated 29.5.2014, it cannot be said that the SIT cannot act as a police station and since there is cognizable offence since section 21(6) lays down that any offence punishable under the MMRD Act shall be treated as a cognizable offence, it is open to the Inspector of Police of the Police Station to investigate and register a FIR, which has been done. It is after a final report is prepared that a complaint under Section 200 of the Code of Criminal Procedure, 1973 could be filed in respect of an offence punishable under Section 22. No doubt there is bar under Section 22 for taking cognizance and hence the filing of the FIR will not enable the Magistrate to take cognizance. It is only on filing a complaint that action would be entertained and the Magistrate could take cognizance. Hence, there is no impediment or illegality in the investigation having been conducted.
Insofar as the contention that the mineral in the land vests with the owner and that no licence or lease is required may be the legal position, but however no quarrying operations 17 can be carried out with out a working permit. Admittedly, there is no working permit available and hence the question whether there was illegal quarrying would be matter subject of a trial and cannot be foreclosed at this point of time, for otherwise, it will enable the petitioners who are guilty of illegal activity from escaping the law and hence there is no warrant for interference by this court at this stage and even if there is any such infirmity, the same could be urged before the court below. Hence, the learned Counsel seeks dismissal of the petitions.
The learned Counsel for the respondents has placed reliance on an order of this court in WP 31398-399/2014 dated 16.7.2014 in case of R.Shivakumar and other vs. Lokayukta of Karnataka, wherein the petitioners' case seeking a similar relief has been rejected by this court. Therefore, by the same token of reasoning, these petitions would have to be dismissed, for otherwise, if this bench is to differ from the view taken by the coordinate bench, the matter would have to be referred to a larger bench and hence seeks dismissal of the petitions. 18
5. In the light of the above contentions on the first objection by the petitioners that the Lokayukta Police or SIT lack jurisdiction, though it is contended that on more than on count that the Lokayukta Police being declared as a police station, particularly, the Inspector General of Police, who has jurisdiction over the entire State being the head of the SIT, would not preclude the SIT from carrying on investigation in respect of a cognizance offence as any offence under the MMDR Act is deemed to be a cognizable offence and the requirement of an authorised person filing a complaint would also not be an impediment since the Lokayukta has authorised the SIT to carry out an investigation and that would suffice as adequate authority to carry on investigation as a police station in respect of a cognizable offence cannot be readily accepted. The proposition rests on the reference to Section 15 of the Karnataka Lokayukta Act, 1984 (Hereinafter referred to as the 'KL Act', for brevity). It is to be found that under the KL Act, reports of the Lokayukta which are to be filed are dealt under 19 Section 12 therein and the scope and ambit of the Lokayukta's jurisdiction to investigate and submit a report is limited to submitting the report to the State Government to take further action and it is also quite possible that he could even institute a criminal case for criminal prosecution and it is only investigation under Section 15 for purposes of the said KL Act. It cannot be constructed as investigation under the general law. Therefore, reference to Section 15 would not lend support to the contention that the Lokayukta Police or the SIT are authorized in terms of Section 22 of the MMDR Act to file a complaint or to investigate a case. In other words, there is no question of investigating a case and then filing a report and thereafter seeking to file a complaint. Section 22 enables a complaint being filed by an authorized person in the first instance. Hence, the gazette notification by the State Government referred to hereinabove would also specify the officers who would be authorized to file such a complaint. Significantly, there is no reference to the Lokayukta Police or SIT in the said 20 notification. Reference to SIT or Inspector of Police is in respect of Police, who are generally within the jurisdiction of the area where any such incident may have occurred. It does not contemplate Lokayutka Police or the SIT being competent to file a complaint. Hence, it cannot be said that there was any power vested in the Lokayukta Police or SIT to investigate an offence under the MMDR Act unless they were specially so authorized by the State. Hence, the proceedings initiated at the instance of the Lokayukta or the SIT is invalid and illegal. The court could not have taken cognizance and cannot take cognizance on the basis of such report.
Insofar as the position that mineral that is found on patta land vests with the owners of the land is well settled. The question of obtaining lease or licence does not arise. It is only in respect of the land belonging to the State and where quarrying operations are to be carried on a lease or licence is a must in respect of quarrying on patta land is concerned, the requirement of obtaining a working permit is to ensure that 21 there is conversion of the land to non-agriculture purpose and that there is no damage to the environment and environment clearances are necessary. Beyond this, there is no requirement of any other permission from the State Government. In the present case on hand, it is an admitted fact that in one group of cases atleast, there is no working permit, but the applications seeking such permits were pending with the State Government. Hence, it cannot be said that the petitioners are also on the same footing as the petitioners in WP 31398-399/2014 disposed of by this court, as it is apparent that those petitioners were lease holders and licensees to quarry granite and would stand on a different footing altogether. Therefore, no parallel can be drawn to the case of those petitioners and these petitioners. Secondly, the Lokayukta being assigned further investigation of other matters, as per the Government Order referred to above and Annexure-A to the said Government Order, listing out specifically several matters which required to be investigated, did not include the quarrying of granite by 22 these petitioners. Therefore, it was outside the scope of the investigation by the SIT pursuant to the Government Order. In the absence of any authorization to file a complaint, proceedings initiated fall foul not only of Section 22 of the MMDR Act, but also the very Government Order under which investigation being carried on.
Therefore, the petitions are allowed. The proceedings initiated against each of these petitioners are quashed.
Sd/-
JUDGE nv