Karnataka High Court
Appasahab S/O Mallappa Hidakal vs The State Of Karnataka on 22 October, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No.101939 OF 2018
BETWEEN:
APPASAHAB S/O. MALLAPPA HIDAKAL
AGE. 53 YEARS,
OCC. OWNER OF THE VEHICLE
R/O. JALALPUR, TQ. RAIBAG,
DIST. BELAGAVI.
... PETITIONER
(BY SRI D. V. PATTAR FOR SRI ANAND R. KOLLI,
ADVOCATE)
AND :
THE STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD,
THROUGH : PSI, RAIBAG POLICE STATION.
... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, H.C.G.P.)
THIS PETITON IS FILED U/S. 482 OF CR.P.C. PRAYING
TO QUASH THE COMPLAINT/FIR IN CRIME NO.93/2017
REGISTERED BY RAIBAG POLICE STATION WITH RESPECT
TO THE OFFENCES PUNISHABLE U/S. 379 OF I.P.C. & U/S.
4(1) (1A), 21 R/W. 22 OF MINES AND MINERALS
:2: Crl. P. No.101939/2018
REGULATION AND DEVELOPMENT ACT, 1957 IN RESPECT OF
PETITIONER ONLY AND SAME IS PENDING ON THE FILE OF
PRL. CIVIL JUDGE AND JMFC, RAIBAG.
THIS PETITION COMING ON FOR ADMISSION, THIS
DAY THE COURT MADE THE FOLLOWING:-
ORDER
Whether a complaint for violation of THE provisions of the Mines and Minerals (Development and Regulation) Act, 1957 (for short, 'MMDR Act') can be filed before the Station House Officer of a police station and on such complaint whether respondent police could register the FIR and take up the investig ation, is the question involved in this case.
2. Petitioner is accused No.1 in Crime No.93/2017 of Raib ag police station which is now pend ing in C.C. No.924/2017 on the file of Prl. Civil Judge and J.M.F.C. Raib ag. Respondent police registered Crime No.93/2017 ag ainst the p etitioner for the offences punishable under Section 379 of I.P.C. and Sections 4(1), (1A) and 21 read with :3: Crl. P. No.101939/2018 Section 22 of the MMDR Act on the b asis of the complaint/report of Raveend ra Ajjannavar, the Police Sub Insp ector, Raib ag Police Station.
3. It was alleged that on 10.04.2017 at 5.15 p.m. on the b ank of Krishna river situated within the limits of Bhavaana Saund atti villag e the p etitioner and 2 to 3 others were illeg ally extracting sand from the river b ed and load ing the same in tractor No.KA23/TB-1293 and the trailor toed to that.
4. It was further alleg ed that the complainant and his staff conducted raid and seized the said vehicle along with sand and thereby the petitioner has committed the offence of theft of Government p roperty and attempted to transport the same without permit.
5. On the basis of such complaint the Station House Officer registered the FIR in Crime No.93/2017. Respondent police on conducting the :4: Crl. P. No.101939/2018 investigation filed the charge sheet against the petitioner. The learned Mag istrate on receipt of the charg e sheet took cognizance of the offences punishab le und er Section 379 of I.P.C. and Section 4(1) (1B) [which should have been (1A)] and Section 42 read with Section 22 of the MMDR Act and issued p rocess to the p etitioner.
6. The learned counsel for the petitioners seeks 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 complainants / informants were not
authorised persons to file the
complaint.
(iii) Even authorised officers have to file
complaint b efore the Mag istrate and not :5: Crl. P. No.101939/2018 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.
7. Sri.Praveen K.uppar, learned HCGP submits that the police are competent to file the complaint/Report and on such report register FIR when the complaint is for the offences punishab le und er IPC.
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.":6: Crl. P. No.101939/2018
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 p rovisions makes it clear that the Court is b arred from taking cognizance of the offences und er the MMDR Act or :7: Crl. P. No.101939/2018 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. The complainant has not stated in the complaint that he is the person authorised under Rule 2(1) (a-1-a) of the Rules to file a complaint. Complainant is not accompanied by any such authorization notification. Even assuming that the complainant was so authorised, the complaint in respect of the offences under the Act ought to have been filed before the Magistrate 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. Sanjay, (2014) 9 SCC 772 case, in this reg ard has held as follows:
:8: Crl. P. No.101939/2018
"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 words, in a case where there is a theft of sand and gravel from the Government land, the police can register a case, :9: Crl. P. No.101939/2018 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 receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of : 10 : Crl. P. No.101939/2018 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 punishable under MMDR Act or the Rules, but they are not b arred from registering the FIR for the offences punishab le und er IPC. The FIR and consequential Criminal proceedings pending before the Magistrate in the above case so far it relates to the offences und er MMDR Act is liab le to be quashed . Therefore, the petition is p artly allowed.
15. The FIR in Crime No.93/2017 of Raib ag police station and all other proceedings consequent : 11 : Crl. P. No.101939/2018 to that so far they relate to the offences punishable und er the MMDR Act are hereby q uashed.
16. Liberty is reserved to the Government to proceed in respect of the said offences in accord ance with law.
Sd/-
JUDGE hnm