Karnataka High Court
Tarannum Banu vs The State Of Karnataka on 21 February, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
W.P. No. 3572/2018 (GM-RES)
BETWEEN
TARANNUM BANU,
W/O SALEEM BASHA K.,
PROPRIETRIX-M/S M.I. STONE CRUSHERS,
AGED ABOUT 34 YEARS,
HOUSEHOLD & AGRICULTURIST,
R/NEAR STADIUM, HADAGALI ROAD,
HARAPANAHALLI 583 131
DAVANAGERE DISTRICT
... PETITIONER
(BY SRI. R. G. KOLLE, ADV.)
AND
1. THE STATE OF KARNATAKA,
REP. BY ITS CHIEF SECRETARY,
VIDHAN SOUDHA, BENGALURU,
BENGALURU 560 001.
2. THE PRINCIPAL SECRETARY TO GOVT.,
DEPARTMENT OF COMMERCE & INDUSTRIES
VIKASA SOUDHA, BENGALURU 560 001
3. THE DIRECTOR & COMMISSIONER,
DEPARTMENT OF MINES & GEOLOGY,
KHANIJA BHAVAN, RACE COURSE ROAD,
BENGALURU - 560 001.
4. THE SENIOR GEOLOGIST,
DEPARTMENT OF MINES & GEOLOGY,
DAVANAGERE DISTRICT,
DAVANAGERE 577001
2
5. THE REVENUE INSPECTOR,
HARALPANAHLLI TALUKA,
DAVANGERE DISTRICT,
HARAPANAHALLI 583 131.
6. THE SHO & POLICE SUB-INSPECTOR,
HARAPANAHALLI POLICE STATION,
DAVANAGERE DISTRICT,
HARAPANAHALLI 583 131
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R1 TO R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA R/W
SEC.482 OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO QUASH THE OR SET ASIDE THE ORDER
DTD:13.11.2017 PASSED BY LEARNED CIVIL JUDGE
AND JMFC, HARAPANAHALLI IN CC NO.452/2017
PRODUCED AT ANNEXURE-A, FOR HAVING TAKEN
COGNIZANCE OF ALLEGED OFFENCE PUNISHABLE
UNDER SECTION 4[1] AND 21 OF MMDR ACT, 1957 AND
SECTION 192-A OF KLR ACT, 1964 WITHOUT THE
AUTHORITY OF LAW AND FOR WANT OF NECESSARY
LEGAL COMPETENCE AND JURISDICTION IN TERMS OF
RECENTLY INSERTED SECTION 30-B OF MMDR ACT,
EFFECTIVE FROM 12.1.2015 AND SECTION 22 OF MMDR
ACT, 1957 AS WELL AS SECTION 2[d] OF CODE OF
CRIMINAL PROCEDURE IN RESPECT OF
HARAPANAHALLI POLICE STATION CRIME NO.62/2016
REGISTERED BY THE R-6 SHO/PSI UPON A PRIVATE
COMPLAINT DTD:26.3.2016 FILED BY R-5 REVENUE
INSPECTOR PRODUCED AT ANNEXURE-B AND
CONSEQUENT FILING OF A CHARGE SHEET PRODUCED
AT ANNEXURE-E.
THIS W.P. COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
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ORDER
In this petition, the petitioner has sought for quashing of a criminal case in C.C. No.452/2017 pending on the file of the Civil Judge and JMFC, Harappanahalli for the offences punishable under Sections 4(1) and 21 of Mines and Minerals (Development and Regulation) Act, 1957 ( for short, 'MMDR Act) and Section 192(A)(1) of the Karnataka Land Revenue Act, 1964 (for short, KLR Act).
2. The allegations in the charge sheet are quite relevant to be quoted for disposal of this case. The charge sheet has been laid making allegations that, the petitioner, without any licence or permission from the Government encroaching the lands of the Government and also doing mining operation in his Patta land and as well as in the encroached land belonged to the Government, particularly in Sy. No. 429/A measuring 1.77 guntas of Madapura village and also in 0.81 acre of Government land and further in Sy. No.429/B measuring 4.32 guntas of land belonging to the accused/petitioner. In the said lands the petitioner 4 has been doing mining operation viz., stone crushing for the purpose of wrongful gain without obtaining any licence or permission from the Government. The offences under Section 4(1) and 21 of the MMDR Act, 1957 are concerned, the Police cannot investigate the matter and submit any report under Section 173 of Cr.P.C.. In this regard, it is worth to mention here Section 22 of the MMDR Act, which reads as follows:-
Sec. 22: Cognizance of offences- No court shall take cognizance of any offence punishable under this Act or any Rules made hereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government."
3. On a plain reading of the above said provisions, there is a mandatory statutory embargo on the courts taking cognizance of any offence punishable under the MMDR Act and KMMC Rules without there being a private complaint by an authorized person of the Central Government or the State Government.
4. Section 2(d) of Cr.P.C. also explains as to what is meant by 'Complaint', which reads as under:- 5
Sec. 2(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."
(Emphasis supplied) Therefore it is crystal clear that, on a plain combined reading of the above two provisions that, the complaint in writing shall be made by the competent authority to the Magistrate, having jurisdiction to take cognizance of the offence under the provisions of MMDR Act and KMMC Rules. The said provisions specifically excludes the report under Section 173 of Cr.P.C. by the Police. Therefore, even without discussing anything on merits of the case, this court is of the opinion that the charge sheet filed by the Police sofar it relates to provisions of the MMDR Act and KMMC Rules, is hit by Section 22 of the MMDR Act and the same is liable to be quashed.
5. Sofar as Section 192-A of KLR act is concerned, the Police have invoked the said provision on the ground that, some portion of the land as per the 6 charge sheet, ie., an extent of 0.81 acres of land, which is adjacent to the land bearing Survey No.429-A of Madapura Village, the petitioner has encroached the said land for the purpose of doing mining operation. In order to invoke Section 192-A of KLR Act, again there are certain procedures to be followed before lodging a report by the Police. It is worth to note here a decision of this court reported in ILR 2008 Kar. 4520 between Lalitha Shstry Vs. State of Karnataka, wherein this Court had an occasion to deal with the procedure to be followed before initiation of any criminal proceedings under Section 192-A of KLR Act, which read thus:
(A) CONSTITUTION OF INDIA - ARTICLES 226 AND 227 -ALLEGATIN OF ENCROACHMENT OF GOVERNMENT LAND - Complaint by the Tahsildar - initiation of criminal proceedings before the jurisdictional Magistrate against the petitioners - Grievance of petitioners, criminal prosecution is launched without following the principles of natural justice - prior to quash criminal proceedings - HELD , Principles of natural justice demands that the petitioners ought to have been given an opportunity to have their say in the matter - The proceedings cannot be sustained as the Tahsildar has lodged the complaint without giving any such opportunity, 7 without conducting any survey in the presence of the petitioners and the complaint was lodged merely on the basis of documents to which the petitioners are not parties.
(B) KARNATAKA LAND REVENUE ACT, 1964 -
AMENDMENT - INTRODUCTION OF
SECTION 192A - Encroachment of
Government land - allegation- complaint-
initiation of criminal proceedings - procedure required to be followed - HELD, Section 192-A stipulates a procedure under which a showcause notice is to be given upon those alleged encroachers to file their objections within 15 days. If no objections are received, authorities are called upon to visit the spot, conduct a mahazar in the presence of the villagers, obtain their signature and thereafter to initiate criminal proceedings if they are satisfied that there is encroachment. In the event of alleged encroachers producing documents to examine the same and only in the event of the said documents are found to be fabricated or duplicate, to initiate proceedings under Section 192-A of the Act. -
As the criminal prosecution is launched against all the petitioners without affording an opportunity to have their say and in the light of the circular which is passed by the Government, the criminal proceedings cannot 8 be sustained - Hence, the proceedings are hereby quashed.
6. In the said decision, the court has particularly relied upon a circular issued by the State Government in No. RD 674 LGB 2008 Dated 08.09.2008 in order to laydown the above said principal as to the procedure to be followed by the competent authority before lodging any criminal complaint against the persons who have encroached upon the land of the Government or if they have committed any offence under Section 192-A of the KLR Act.
7. As could be seen from the entire charge sheet papers, no such complete procedure has been followed by the competent authority prior to the Police taking any action against the petitioners. Though a notice dated 05.03.2016 issued from the office of the Tahsildar under Section 192-A of the KLR Act is available on record, but no further proceedings have been conducted as per the Circular of the Government ie., to say, if no objections are filed to the notice issued by the competent authority (Thasildar in this case) if the 9 authorities are satisfied that there is an encroachment, of Government land, in the event of the said documents are found to be fabricated pertaining to the said land, then the competent authorities have to visit the spot and conduct a mahazar in the presence of the villagers and obtain their signatures and thereafter to initiate criminal proceedings. Therefore, though the notice dated 05.03.2017 is available, but no other materials are produced to show that the said notice was served on the petitioner and whether the said procedure has been followed ie., to say, before initiation of the proceedings, whether the competent authority has issued any notice giving 15 days time to file objections and if no objections are filed, then only the competent authority can proceed to conduct mahazar by visiting the spot and drawing mahazar in presence of the villages and thereafter initiate criminal proceedings. When issuance of notice as contemplated under the relevant provisions is not forthcoming in the entire charge sheet papers, then the said criminal proceedings is not valid in law. Therefore, in the above facts and circumstances of the case, the entire proceedings in C.C. No.452/2017 10 requires to be quashed with liberty to the Government to follow the proper procedure and file a appropriate report, if advised, for the aforesaid offences under the MMDR Act and KMMC Rules and also can initiate proceedings under Section 192-A of KLR Act after following the procedures as per the Circular of the Government noted above. Accordingly, I pass the following:-
ORDER The petition is allowed. Consequently, the entire proceedings in C.C. No.452/2017 registered against the petitioner for the aforesaid offences, pending on the file of the learned Civil Judge and JMFC, Harapanahalli, are hereby quashed with liberty to the Government, as noted in the body of the order.
Sd/-
JUDGE KGR*