Karnataka High Court
Mallikarjuna H M vs State Of Karnataka on 25 November, 2014
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF NOVEMBER, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL PETITION NO.6829/2014 C/W
CRL.P.NOS.6830/2014, 6831/2014, 6832/2014,
6833/2014, 6834/2014 & 6835/2014
IN CRL.P.NO.6829/2014
BETWEEN:
MALLIKARJUNA H.M.,
S/O. MAHADEVA SHETTY
AGED ABOUT 25 YEARS,
HOSAKEMPAIAHNA HUNDI,
KASABA HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT
OWNER OF THE LORRY BEARING
NO. KA-12-2820.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
AND:
1. STATE OF KARNATAKA
REP. BY BANNUR POLICE STATION,
T. NARASIPURA,MYSORE DISTRICT,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2
2. R. SANTHOSH KASHYAP
P.S.I.,
STATION: T. NARASIPURA TALUK,
MYSORE DISTRICT - 570 001
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. FILED U/S.482 CR.P.C., PRAYING TO QUASH
THE FIR IN CRIME NO.219/2014 DATED 29.09.2014 PENDING
ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC,
T.NARASIPURA, MYSORE.
IN CRL.P.NO.6830/2014
BETWEEN:
1. MAHADEVA
S/O. SIDDANAYAKA,
AGED ABOUT 30 YEARS,
R/AT INDAVALU VILLAGE,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
NO.KA-09-1687.
2. SHANKARA,
S/O. LATE THAMMAIAH,
AGED ABOUT 48 YEARS,
R/AT INDAVALU VILLAGE,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
NO.KA-12-A-5151.
... PETITIONERS
(BY SRI SYED KHADER NAWAZ, ADV.)
3
AND:
1. STATE OF KARNATAKA
REP. BY MYSORE SOUTH POLICE STATION,
MYSORE,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BANGALORE-560 001.
2. MAHESH M.,
P.S.I.,
MYSORE SOUTH P.S.
MYSORE -570 010,
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P FILED U/S.482 CR.P.C., PRAYING TO QUASH
THE FIR IN CRIME NO.414/2014 DATED 27.09.2014 PENDING
ON THE FILE OF THE II CIVIL JUDGE AND JMFC, MYSORE
DISTRICT, MYSORE.
IN CRL.P.NO.6831/2014
BETWEEN:
SIDDANAYAKA
S/O. LATE CHIKKA THAMMAIAH,
AGED ABOUT 58 YEARS,
R/AT INDAVALU VILLAGE,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
REG. NO.KA-01-7127.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
4
AND:
1. STATE OF KARNATAKA
REP. BY MYSORE SOUTH POLICE STATION,
MYSORE,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. K. AMRUTHA
DEPARTMENT OF MINES & GEOLOGY
KUVEMPUNAGARA,
MYSORE - 571 602,
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE FIR IN CRIME NO.431/2014 DATED 7.10.2014
PENDING ON THE FILE OF THE II CIVIL JUDGE AND JMFC,
MYSORE DISTRICT, MYSORE.
IN CRL.P.NO.6832/2014
BETWEEN:
R. UMESHA
S/O. CHIKKARAJANAYAKA,
AGED ABOUT 31 YEARS,
RESIDING AT YADADORE VILLAGE,
KASABA HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
REG. NO.KA-20-3397.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
5
AND:
1. STATE OF KARNATAKA
REP. BY MYSORE SOUTH POLICE STATION,
MYSORE,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. K. AMRUTHA
STATE GOVT. EMPLOYEE
DEPARTMENT OF MINES & GEOLOGY
KUVEMPUNAGARA,
MYSORE - 571 602,
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE FIR IN CRIME NO.430/2014 DATED 7.10.2014
PENDING ON THE FILE OF THE II CIVIL JUDGE AND JMFC,
MYSORE DISTRICT, MYSORE.
IN CRL.P.NO.6833/2014
BETWEEN:
R. UMESHA
S/O. CHIKKARAJANAYAKA,
AGED ABOUT 31 YEARS,
RESIDING AT YADADORE VILLAGE,
KASABA HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
NO.KA-01-A-7102.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
6
AND:
1. STATE OF KARNATAKA
REP. BY MYSORE SOUTH POLICE STATION,
MYSORE,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. K.N. PUSHPAVATHI
STATE GOVT. EMPLOYEE
DEPARTMENT OF MINES & GEOLOGY
KUVEMPUNAGARA,
MYSORE - 571 602,
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE FIR IN CRIME NO.427/2014 DATED 7.10.2014
PENDING ON THE FILE OF THE II CIVIL JUDGE AND JMFC,
MYSORE DISTRICT, MYSORE.
IN CRL.P.NO.6834/2014
BETWEEN:
B. RAVI,
S/O. LATE BYRAPPA,
AGED ABOUT 31 YEARS,
RESIDING AT YADADORE VILLAGE,
KASABA HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
NO.KA-19-8012.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
7
AND:
1. STATE OF KARNATAKA
REP. BY MYSORE SOUTH POLICE STATION,
MYSORE,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. K. AMRUTHA
DEPARTMENT OF MINES & GEOLOGY
KUVEMPUNAGARA,
MYSORE - 571 602,
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE FIR IN CRIME NO.432/2014 DATED 7.10.2014
PENDING ON THE FILE OF THE II CIVIL JUDGE AND JMFC,
MYSORE DISTRICT, MYSORE.
IN CRL.P.NO.6835/2014
BETWEEN:
MADESHA H.,
S/O. HONNAIAH,
AGED ABOUT 22 YEARS,
RESIDING AT NO.19,
HARIJANA COLONY, INDAVALU VILLAGE,
KASABA HOBLI,
T. NARASIPURA TALUK,
MYSORE DISTRICT,
OWNER OF THE LORRY BEARING
NO.KA-01-B-2396.
... PETITIONER
(BY SRI SYED KHADER NAWAZ, ADV.)
8
AND:
1. STATE OF KARNATAKA
REP. BY T. NARASIPURA POLICE STATION,
T. NARASIPURA,
MYSORE DISTRICT,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU-560 001.
2. R. RASHMI
DEPARTMENT OF MINES & GEOLOGY
KUVEMPUNAGARA,
MYSORE - 570 017
KARNATAKA.
... RESPONDENTS
(BY SRI NASRULLA KHAN, HCGP)
THIS CRL.P. IS FILED U/S.482 CR.P.C., PRAYING TO
QUASH THE FIR IN CRIME NO.275/2014 DATED 7.10.2014
PENDING ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DN.) & CJM COURT, T. NARASIPURA, MYSORE DISTRICT.
THESE CRL. PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In these petitions, the petitioners, owners of vehicles, seized by the respondent - police, on the allegation of carrying sand without permission, have challenged the legality and validity of the registration of cases, for the offences punishable under Ss.4(1), 4(1A), 9 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'the MM(DR) Act') and Ss. 3, 42, 43 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 and certain provisions of IPC.
2. Mr.Syed Khadar Nawaz, learned advocate, by relying upon an order dated 19.09.2014 passed in Crl.P. No.5398/2014, contended that these cases being identical, are liable to be allowed and the cases registered by the respondent-Police against the petitioners, are liable to be quashed.
3. Learned HCGP, on the other hand, contended that in view of the clear enunciation of law by the Apex Court, on identical issues, in STATE OF NCT OF DELHI Vs. SANJAY, (2014) SCC ON LINE SC 672, these petitions are devoid of merit and liable to be dismissed.
4. In Crl.P.No.5398/2014, decided on 19.09.2014, a case having been registered against the petitioner therein, for the offences under the MM(DR) Act 10 and the IPC, finding that the complaint in writing was not by an authorized person of the State Government and the FIR filed by police cannot be allowed as a complaint and taking notice of the definition, under S.2(d) of the Cr.P.C., it was held that the entire proceedings initiated is void and was quashed.
5. The question which arose for consideration before the Apex Court, in the decision noticed in para 3 supra, was, whether the provisions contained in Ss. 21, 22 and other Sections of the Act, operate as bar against prosecution of a person who has been charged with the allegation which constitutes offences under S.379/114 and other provisions of Indian Penal Code. In other words, whether the provisions of the MM(DR) Act explicitly and impliedly excludes the provisions of IPC, when the act of an accused is an offence both under IPC and under the provisions of the MM(DR) Act.
6. Noticing the conflicting views of different High Courts and also the contentions raised with regard to the 11 bar under Section 22 of the MM(DR) Act, even on registration of FIR and consequently, on investigation unless a direction to that effect comes from a Magistrate and that too on a complaint in writing made by a person authorized in this behalf and on perusal of Section 4, particularly S.4(1)(a) as well as S.21 of the MM(DR) Act, and the necessity to settle the questions involved in the appeals, Apex Court, in the case reported in (2014) SCC ON LINE SC 672, supra, has held as follows:
" 56. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Indian Penal Code where the offences committed by persons are penal and cognizable offence.
57. Sub-section (1A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the rules made thereunder. In other words no person will do mining activity without a valid lease or license. Section 21 is a penal provision according to which if a person contravenes the provisions of Sub-section (1A) of Section 4 shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure 1973.
58. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any rule made thereunder except upon a complaint made by a person authorized in this behalf.
59. It is very important to note that Section 21 does not begin with a non-obstante clause. Instead of the words "notwithstanding anything contained in any law for the time being in force no court shall take cognizance.....", the Section begins with the words "no court shall take cognizance of any offence."12
60. It is well known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions.
61. In Liverpool Borough vs. Turner Lord Campbell (1861), 30 L.J. Ch.379, C.J. at page 380 said :-
"No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed."
62. In Pratap Singh vs. Shri Krishna Gupta, AIR 1956 SC 140 at page 141, the Supreme Court while interpreting the mandatory and directory provisions of statute observed as under:-
"We do not think that is right and we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which Judges must determine the matter and exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines."
63. The question is whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other.
64. In Maxell on the Interpretation of Statutes 10th Edn. at page 381, it is stated thus :-
"On the other hand, where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory 13 only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."
65. In the case of State of U.P. vs. Babu Ram Upadhya, AIR 1961 SC 751, while interpreting a particular statute as mandatory or directory this Court observed :-
"When a statute uses the word 'shall', 'prima facie', it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non- compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision 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.
67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
68. 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 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 Section 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 Section 22 of the Act against prosecution of a person except on a complaint made 14 by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.
69. However, there may be situation where a person without any lease or 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 laible to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.
70. 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, gravels 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.
71. 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 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 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.
72. 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 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 Section 378 Cr.P.C., 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. 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."
15
7. In view of clear enunciation of law by Apex Court, on an identical issue, which has not been brought to the notice of this Court on 19.09.2014, when the Crl.P. No.5398/2014 was decided, and as these cases are squarely covered by the said decision of the Apex Court, the order of this Court, on which reliance was placed by Mr.Syed Khadar Nawaz, being not an authoritative pronouncement, cannot be followed. Following the decision of the Apex Court, noticed supra, these petitions are dismissed.
However, it is made clear that the dismissal of these petitions would not come in the way of the petitioners raising their defence, as and when the cases against them come up for trial before the respective Courts. The cases, shall be decided on their merit, uninfluenced by any observations made in this order.
Sd/-
JUDGE sac*