Gujarat High Court
Babubhai Kanjibhai Siroya (Patel) vs State Of Gujarat on 30 June, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/17322/2019 ORDER DATED: 30/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 17322 of 2019
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BABUBHAI KANJIBHAI SIROYA (PATEL)
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 30/06/2021
ORAL ORDER
1. The present petition is moved under Section 482 of the Code of Criminal Procedure, 1973 (for Short 'Code') with a prayer to quash and set aside the complaint being II-C.R. No.17/2017 dated 18.05.2017 under Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005 and Sections 4(1-A) and 21 of the Mines And Minerals (Development And Regulations) Act, 1957 (for short 'MMRD Act'), registered at Gir Gadhada Police Station, culminated as Criminal Case No.1894/2017 before the Judicial Magistrate, First Class, Gir Gadhada.
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R/CR.MA/17322/2019 ORDER DATED: 30/06/2021
2. The F.I.R. has been lodged by respondent no.2
- Assistant Geologist, Gir Somnath Office, Gir Somnath with allegation that excavation is being carried out in the land belonging to the applicant. Section 379 of the I.P.C. was prayed to be added vide application of A.S.I., Gir Gadhada Police Station and the learned Judicial Magistrate, Gir Gadhada by an order dated 25.09.2017 permitted to add the same in the F.I.R.
2.1 The applicant states that the F.I.R. is absolutely false and no such offence has been committed by him. He is residing at the place far away from the land, as noted in the F.I.R. The applicant found some villagers near his land and therefore had made representation to the authorities concerned including the police to initiate action against them, but no heed was paid to his representation. The applicant has also challenged the lodging of the F.I.R. by the police.
3. Mr. Dagli, learned advocate for the applicant, submitted that the F.I.R. filed is in context of alleged Page 2 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 breach of Section 4(1-A) and 21 of the MMRD Act with breach of Gujarat Mineral Rules. At the end of the investigation, the chargesheet is also filed for the offence under Section 379 of the IPC. Mr. Dagli submitted that the MMRD Act is a special Act where the cognizance is to be taken in accordance to the provisions of Section 22 of the Act and such can be done only after a private complaint by the person authorized on behalf of the Central Government or the State Government. He submitted that the proceedings has arisen out of an F.I.R. filed by the police and in pursuance thereof report was submitted under Section 173 of the Code, therefore, stated that any cognizance on the report would be illegal, unjust and without jurisdiction.
3.1 Mr. Dagli stated that the offence was registered under MMRD Act and later on Section 379 of IPC was added, which he submits, has to be proved, since the alleged act is of excavation of minerals from the private land of the applicant and therefore, Mr. Dagly submits that no offence would be made out under Section 379 of the IPC. Mr. Dagli submitted that the applicant has made Page 3 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 several representations by contending that the activities on land were by persons unknown to him and the police or the authorities under MMRD Act, has not taken any action towards such representation.
4. Ms. Monali Bhatt, learned APP for the respondent State, referring to the case of Jayant And Other Vs. State of Madhya Pradesh, reported in (2021) 2 Supreme Court Cases 670, submitted that the issue has now been settled and the Hon'ble Apex Court in the said judgment referring to various case laws has ultimately concluded in para-21, which as per Ms. Monali Bhatt, would be useful guidance and direction to the authorities under the MMRD Act and the police and further to the Magistrate and the Special Court. Ms. Bhatt, contended that the judgment of Jayant And Other Vs. State of Madhya Pradesh (supra) would clarify the course of action to be adopted by the authorities and the Court concerned.
5. Perusal of the F.I.R. shows that it was lodged on a complaint by Mr. Yogesh Savjani, Mines Supervisor, Page 4 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 Geology and Mining Department, Gir Somnath. The complaint was addressed to the Police Inspector, Gir Gadhada Police Station, Gir Somnath on 18.05.2017 with the allegation of theft of mineral under Section 379 of IPC, Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005 and Sections 4(1-A) and 21 of the MMRD Act.
5.1 The police on the complaint lodged F.I.R. under Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005 and Sections 4(1-A) and 21 of the MMRD Act. Thereafter, the police made an application before the Judicial Magistrate, First Class, Gir Gadhada Court for adding Section 379 of IPC in the FIR which was allowed by the learned JMFC, Gir Dadhada. Chargesheet No.I-61/2017 dated 25.09.2017 was filed before the Judicial Magistrate, First Class, Gir Somnath, which was registered as Criminal Case No.1894/2017 on 09.10.2017. 5.2. Challenge is given to the FIR lodged by the Page 5 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 police on the ground that the authority of the Government under MMRD Act has not filed any private complaints before the Court and therefore no cognizance can be taken of the alleged offence
6. Section 22 of the MMRD Act reads as under:
"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."
7. In the case of Jayant And Other Vs. State of Madhya Pradesh (supra), the scope and the manner in which the MMRD Act and Rules and offences under IPC operates, have been very descriptively explained by referring to various judgments of the Hon'ble Apex Court and various High Courts. The Supreme Court in the said judgment has observed regarding the procedure to be adopted in respect of the offences under MMRD Act and IPC.
7.1 Para 21 of the said judgment reads thus: Page 6 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021
R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 "21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-a-vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases, referred to hereinabove, and for the reasons stated hereinabove, our conclusions are as under:
21.1 That the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the concerned In-charge/SHO of the police station to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.
21.2 The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder.
21.3 For commission of the offence under the 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 authorised officer for taking cognizance in Page 7 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 respect of violation of various provisions of the MMDR Act and Rules made thereunder.
21.4 That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In-
charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.
21.5 In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-section (2) of Section 23-A of the MMDR Page 8 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub- section (2) of Section 23-A shall not affect any proceedings for the offences under IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."
8. It has been observed by the Hon'ble Apex Court in the referred case that the learned Magistrate in exercise of power under Section 156(3) of the Code may direct the In-charge/SHO of the Police Station to register an FIR for the offences under MMRD Act and the Rules made thereunder, however, at that stage, bar under Section 22 of the MMRD Act shall not be attracted. It has been clarified that the said bar under Section 22 of the MMRD Act, would come into force only when learned Magistrate takes cognizance of the offence under MMRD Act and the Rules made thereunder and orders issuance of the process / summons for the offences under MMRD Act and Rules.
8.1 On receipt of the police report for the Page 9 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 commission of the offence under IPC, the judgment of Jayant And Other Vs. State of Madhya Pradesh (supra), lays down that the Magistrate having jurisdiction can take cognizance of such offence and such cognizance can be on the police report itself, without any complaint by the authorities under the MMRD Act and the Rules. Thus, for the offence committed under IPC, the police would be permitted to file the report before the concerned magistrate having the jurisdiction to take cognizance. 8.2 Jayant And Other Vs. State of Madhya Pradesh (supra), bifurcates the offence under IPC and directs Magistrate to take cognizance of the criminal offence on police report. It has been further made clear that in respect of violation of the provision of MMRD Act and the Rules, while the Magistrate passes an order under Section 156(3) of the Code, and directs the SHO of the Police Station to register the FIR, the final report in pursuance of the said FIR would be sent to the Magistrate concerned as well as to the authorized officer mentioned in Section 22 of the MMRD Act, which would thereafter permit the authorized officer to file a complaint before Page 10 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 the Magistrate along with the report submitted by the investigating officer whereof, it would be open for the Magistrate to take cognizance for violation of the provisions of MMRD Act and the Rules made thereunder, and it would be at this stage be considered, that the cognizance has been taken by the learned Magistrate. 8.3 The judgment of Jayant And Other Vs. State of Madhya Pradesh (supra) also lays down in para 21.5, the right of violator to get the offence compounded on payment of the penalty as per sub-section (1) of Section 23-A of the MMRD Act. In the said para, it has been clarified that the bar under sub-section (2) of Section 23- A shall not affect any proceedings for the offences under IPC, such as, Section 379 and 414 IPC, which shall proceed further in accordance with law. 8.4 In Jayant And Other Vs. State of Madhya Pradesh (supra), the challenge was given to the judgment and order dated 11.05.2020 passed by the High Court of Madhya Pradesh, Bench at Indore, whereby the Hon'ble Apex Court had dismissed the application filed under Page 11 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 Section 482 of the Code to quash the respective FIR for the offences under Sections 379 and 114 of the IPC and Section 4/21 of the Mines and Minerals (Development and Regulation ) Act, 1957 and under Rule 18 of the M.P. Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2006. The Hon'ble Apex Court after giving the reasons and concluding the procedure to be adopted, partly allowed the appeal filed by the violators / private appellants, to the extent of quashing the proceedings under MMRD Act - Section 4/12 of the MMDR Act.
9. In the case on hand, the de facto complainant is the Mines Supervisor of Geology and Mining Department, Gir Somnath, who had prayed for registration of the complaint under Section 379 of the IPC and under Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005 and Sections 4(1-A) and 21 of the MMRD Act. The police at that time did not include Section 379 of the IPC in the FIR. Thereafter, police made a prayer before the learned Judicial Magistrate, First Class, Gir Gadhda to add Page 12 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 Section 379 IPC in the FIR which was allowed vide order dated 25.09.2017.
10. Considering the facts and circumstances of the case, in consonance to the conclusion laid down in case of Jayant And Other Vs. State of Madhya Pradesh (supra) in penultimate paragraph 21, the petition is partly allowed with following order:
(i) A copy of the Chargesheet No.I-
61/2017 dated 25.09.2017 shall be sent to the authorized officer as mentioned under Section 22 of the MMRD Act;
(ii) On receipt of such report, it shall be open to the authorized officer to file a complaint before the Magistrate concerned along with such police report;
(iii) In respect of the offences under IPC, the concerned Magisterial Court shall be at liberty to take cognizance thereof, on the police report, to proceed further in accordance Page 13 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021 R/CR.MA/17322/2019 ORDER DATED: 30/06/2021 with law.
12. In view of the above observations and directions, the present application stands disposed of accordingly.
(GITA GOPI, J.) Pankaj Page 14 of 14 Downloaded on : Sat Jul 03 00:37:24 IST 2021