Karnataka High Court
Santoshkumar S/O. Iranagouda Patil vs State Of Karnataka on 15 September, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
Crl.P.No.101250/2017
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
CRIMINAL PETITION NO. 101250/2017
BETWEEN:
SANTOSHKUMAR S/O. IRANAGOUDA PATIL
AGE:35 YEARS, OCC:AGRICULTURE AND BUSINESS
R/O:KOTIHAL, TQ:RANEBENNUR
DIST:HAVERI
... PETITIONER
(BY SRI. M. B. GUNDAWADE, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH AT DHARWAD
THROUGH HALAGERI POLICE
RANEBENNUR TALUK
2. SRINIVASA K S/O. KRUSHNAPRASAD
AGE:39 YEARS, OCC:MINES EMPLOYEE
OFFICE OF THE SENIOR GEOLOGIST
DEPT. OF MINES AND GEOLOGY DEPARTMENT
HAVERI.
... RESPONDENTS
(BY SRI. RAMESH CHIGARI, HCGP FOR R1;
R2 - SERVED)
---
Crl.P.No.101250/2017
:2:
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE ENTIRE
PROCEEDINGS OF THE CASE AGAINST THE PETITIONER IN
HALAGERI P.S.CR.NO. 97 OF 2017, ON THE FILE OF PRL.
CIVIL JUDGE (JUNIOR DIVISION) AND CJM COURT,
RANEBENNUR, FOR THE ALLEGED OFFENCES UNDER
SECTION 44 OF KARNATAKA MINOR MINERAL CONSISTENT
RULE, 1994, UNDER SECTION 4(1A), 21 OF MINES AND
MINERALS (DEVELOPMENT AND REGULATION) ACT, 1957
AND UNDER SECTION 379 OF IPC.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for quashing of entire proceedings filed against the petitioner in Halageri P.S. Crime No.97/2017 pending on the file of Principal Civil Judge (Jr.Dn.) and CJM Court, Ranebennur, for the alleged offences under Section 44 of the Karnataka Minor Mineral Consistent Rule, 1994 ('KMMC Rules', for short) as also under Section 4(1A), 21 of Mines and Minerals (Development and Regulation) Act, 1957 ('MMDR Act' for short) and under Section 379 of Indian Penal Code.
Crl.P.No.101250/2017:3:
2. The petitioner is stated to be a resident of Kotihal village of Ranebennur Taluka, allegedly doing agriculture. He also claims to be running an Industry for preparation of artificial sand in the name of M/s.Lucky Artificial Sand Industries at Kotihal village. 2.1 On 21.11.2012, the District Task Force Committee members under the supervision of Additional Deputy Commissioner, Haveri, the Tashildar and PWD officials along with Geologist Department of Mines and Geology, visited the land of the petitioner bearing R.S.No.239 of Kotihal village, where they noticed storage of ordinary sand of about 1265 cubic meters. The said sand was seized and handed over to the custody of the Public Works Department authorities.
Crl.P.No.101250/2017:4: 2.2 On that basis a notice came to be issued calling upon the petitioner to pay a fine of Rs.8,22,250/- on 05.02.2015.
2.3 Though the petitioner challenged the said order, he subsequently deposited the fine amount of Rs.8,22,250/- in two installments i.e., Rs.4,00,000/- under coverage of his letter dated 05.03.2016 and Rs.4,22,250/- under the coverage of his letter dated 21.04.2016. 2.4 Receipt of the said amount was also confirmed by Smt. Pushpalata K. M., Senior Geologist, Department of Mines and Geology, Haveri, when she was called upon to be present before this Court on 10.07.2020.
2.5 On receipt of the said amount, a no due certificate also came to be issued by the Senior Geologist, Department of Mines and Geology on 19.01.2017.
Crl.P.No.101250/2017:5: 2.6 On 23.07.2014, the officials of Mines and Geology department visited the premises and noticed 1500 metric tons pebbles stored in the property of the petitioner.
2.7 On noticing the same, C-Form was issued to the petitioner as also licence for preparation of artificial sand was cancelled on 22.12.2014, which was challenged by the petitioner before the Appellate Authority, Regional Commissioner, Belagavi Division, Belagavi. 2.8 The Appellate Authority set aside the order of cancellation vide its order dated 18.04.2015. In the said order it was made clear that the petitioner would not use pebbles for manufacturing of artificial sand and instead the petitioner would only make use of Quartz. Crl.P.No.101250/2017 :6: 2.9 The pebbles which were found on the property of the petitioner were also seized and handed over to the Public Works Department. 2.10 Subsequent thereto, a complaint came to be filed on 02.06.2017, alleging that on 21.11.2012 there were 2277 metric tones of sand found on the property of the petitioner and on 23.07.2014, 1500 metric tones of pebbles were found by the Senior Geologist, Mines and Geology Department, with the Halageri Police Station.
2.11 On the basis of the said complaint, FIR came to be registered in Crime No.97 of 2017. It is aggrieved by the same that the petitioner is before this Court.
3. Sri. M. B. Gundawade, learned counsel for the petitioner would submit that:
Crl.P.No.101250/2017:7:
3.1 Once there was a fine levied as regards the sand by compounding the offence under Section 23A of the MMDR Act, no further proceedings could be initiated against the petitioner in terms of Section 23A(2) of the said Act. The respondents being precluded from initiating any further action, the complaint filed is liable to be quashed.
3.2 As regards 1500 metric tones of pebbles, he submits that the same is also taken over by the PWD department and on the basis of the undertaking given by the petitioner an order of cancellation of the licence has been stayed by the Appellate Authority and therefore, no prosecution can be initiated against the petitioner.
3.3 He further submits that, in view of the decision of this Court in the case of Sri. Vivek and Crl.P.No.101250/2017 :8: Another Vs. State of Karnataka reported in ILR 2008 Kar 1497, a complaint before the police for an offence under the MMDR Act is not maintainable. The complaint ought to have been filed under Section 200 of Cr.P.C. as a private complaint before the jurisdictional Magistrate, who would have to take cognizance of the matter and direct investigation. The same not having done, the registration of the FIR suffers from procedure lapses and ought to be therefore quashed.
4. Per contra, Sri. Ramesh Chigari, learned HCGP would submit that the compounding as claimed by the petitioner is only as regards the sand and there is no compounding of the offence relating to pebbles.
Therefore, the Senior Geologist could have always filed a complaint which he did and as such, he submits that the petition is liable to be dismissed, Crl.P.No.101250/2017 :9: since the grounds are made out for investigation and action to be taken against the petitioner.
5. Heard Sri. M. B. Gundawade, learned counsel for the petitioner and Sri. Ramesh Chigari, learned HCGP for the respondent-State. Perused the papers.
6. Insofar as compounding of the offences relating to storage of sand is concerned, the same having been compounded under Section 23A of the MMDR Act and the amount which were called for by way of fine having been paid by the petitioner, the Senior Geologist is precluded from initiating any action against the petitioner in terms of Section 23A(2) of the MMDR Act, be it as a complaint to the police or a complaint before the jurisdictional Magistrate. Hence a complaint insofar as the sand is concerned could not have been filed and requires to be quashed.
7. Insofar as storage of 1500 metric tones pebble is concerned, admittedly there is no compounding of Crl.P.No.101250/2017 : 10 : the said offence. What was done by the Appellate Authority is to take the undertaking given by the petitioner on record that he will not be using pebbles for future manufacture of artificial sand and that only Quartz would be used for manufacture of artificial sand. On the basis of the said undertaking the cancellation of licence has been revoked. That would not preclude the authorities from initiating any action for violation of the MMDR Act or KMMC Rules. However, for initiating the said action, the authorized officer ought to have filed a private complaint before the jurisdictional Magistrate and it is only on the jurisdictional Magistrate taking cognizance and directing investigation that the police authorities could take the same forward. Admittedly, that is not done in the present case. Therefore, the procedure followed is in violation of Vivek's case (surpa) and as such, the complaint filed under the MMDR Act and Crl.P.No.101250/2017 : 11 : KMMC Rules, even insofar as pebbles are concerned are required to be quashed.
8. The authorities, however, could file a complaint with the jurisdictional police for the offence of theft under Section 379 of IPC insofar as the allegation made by the authorities concerning the theft of sand or pebbles are concerned and as such, I am of the considered opinion that the proceedings insofar as that initiated under Section 379 of IPC would continue.
Petition is partly allowed.
In view of disposal of the main petition, I.A.2/2017 filed for vacating stay does not survive for consideration and the same is also disposed of.
Sd/-
JUDGE gab