Karnataka High Court
Shri. Rudrappa S/O Kenchappa ... vs The State Of Karnataka on 16 July, 2019
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY 2019
®
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.101999 of 2017
BETWEEN
SHRI. RUDRAPPA,
S/O KENCHAPPA PAYANNAVAR
AGE: 70 YEARS, OCC: AGRICULTURE
R/O. HIREMUNAVALLI,
TQ:KHANAPUR, DIST: BELAGAVI. ...PETITIONER
(BY SRI. SRINIVAS B. NAIK, ADVOCATE FOR SRI. K.L.PATIL,
ADVOCATE)
AND
THE STATE OF KARNATAKA,
THROUGH NANDGAD POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH CORUT OF KARNATAKA,
DHARWAD BENCH, DHARWAD. ...RESPONDENT
(BY SMT. SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., SEEKING TO QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO. 656 OF 2017 ON THE FILE OF
PRL. CIVIL JUDGE AND JMFC, KHANAPUR, AGAINST THE
PETITIONER FOR OFFENCES PUNISHABLE UNDER
SECTIONS 379 OF IPC AND SECTIONS 21 AND 22 OF
MMRD (MINES AND MINERALS REGULATION OF
DEVELOPMENT) ACT.
CRL.P. NO.101999 of 2017
:2:
THIS CRIMINAL PETITION COMING ON FOR
ADMISSION ON 11.07.2019, HAVING BEEN HEARD AND
RESERVED, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
The present petition has been filed by petitioner/accused No.1 under Section 482 of Criminal Procedure Code to quash the proceedings in C.C. No.656/2017 on the file of Principal Civil Judge and Judicial Magistrate First Class, Khanapur, for the offences punishable under Section 379 of the Indian Penal Code and Sections 21 and 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the MMDR Act', for short).
2. I have heard the learned counsel for the petitioner/accused No.1 and the learned High Court Government Pleader for the respondent-State.
3. The gist of the complaint is that on 20.08.2016, at about 2.00 p.m, the complainant CRL.P. NO.101999 of 2017 :3: received credible information about the illegal storage of the sand. Immediately, along with his staff and panch witness, he visited the spot at about 2.45 p.m. where they noticed storage of 25 brasses of sand without there being any permit or licence and the same was seized by drawing a mahazar. A complaint was also registered in this behalf. After completion of investigation, the charge sheet has been filed.
4. It is the submission of the learned counsel for the petitioner that, in view of bar contained in Section 22 of the MMDR Act, and Karnataka Minor Mineral Concession Rules, 1994 (for short, 'the KMMC Rules'), a complaint has to be registered only by an Authorized Officer before the jurisdictional Court. The Magistrate gets the jurisdiction to take cognizance and try the matter only when a complaint is made as contemplated under Section 22 of the MMDR Act. It is his further contention that the complaint is given by CRL.P. NO.101999 of 2017 :4: PSI, Nandagad Police Station to PSHO, Nandagad Police Station. On the basis of the said complaint, an investigation was conducted. After investigation, a charge sheet has been filed.
5. It is the contention of the learned counsel for the petitioner that in the charge sheet, Column No.11 with regard to survey number of the land from where 18.876 brasses of sand has been seized has been left blank and that itself clearly goes to show that the police officer had not visited the spot and had not conduced the proceedings in accordance with law. It is his further contention that when once the said fact is brought to the notice of the Court, the Court can exercise the power under section 482 of Cr.P.C. and quash the proceedings. It is his further submission that the ingredients constituting the offences under the provisions of MMDR Act are quite different and distinct from the offences under the provisions of the IPC. If the CRL.P. NO.101999 of 2017 :5: Authorized Officer files a complaint then an investigation by the police in the same case in relation to the offences under IPC can be done, but in the instant case, no such complaint has been filed by authorized persons. It is his further submission that a Co-ordinate Bench in the case of Sri Vivek and Another Vs. The State of Karnataka, by Kunigal Police Station and Another reported in ILR 2018 KAR 1497 has given certain guidelines to be followed by the police, Magistrates and the Special Courts. The said guidelines exhaustively state as to what procedure has to be followed and in the absence of such procedure being followed, the proceedings are considered to be illegal and are liable to be quashed. On these grounds, he prayed to quash the proceedings.
6. Per contra, the learned High Court Government Pleader vehemently argued and submitted that merely because the complaint has not been filed by the Authorised Officer for having committed the offences CRL.P. NO.101999 of 2017 :6: under the MMDR Act, the same cannot and shall not be a bar for the police from taking action against the persons for having committed the theft of sand and minerals. It is further submitted that the Code of Criminal Procedure authorizes the police as well as the Magistrates to take the cognizance of such offences and after investigation, to file a charge sheet. It is further submitted that the violation of the provisions of MMDR Act is only an irregularity and not an illegality. It is further submitted that if the accused person removes and transports the sand from the river bed which is the property of the State, such accused person is liable to be punished for the offences punishable under Sections 378 and 379 of IPC. In totality, the proceedings initiated are in accordance with law and it is not the case of the petitioner that the said sand was stored with the permission and legally, under such circumstances, this Court cannot quash the proceedings. On these grounds, she prayed to dismiss the petition.
CRL.P. NO.101999 of 2017 :7:
7. I have carefully and cautiously considered the submissions made by the learned counsels appearing for the parties and perused the records.
8. On close scrutiny of the charge sheet material, it discloses that the complaint has been filed by the PSI, Nandagad Police Station, on 20.08.2016 at about 4.15 p.m. On the basis of the said complaint, after investigation, a charge sheet has been laid as against petitioner/accused under Section 379 of the IPC and Sections 21 and 22 of the MMDR Act.
9. The main question which has been raised by the learned counsel for the petitioner is that there is a bar under Section 22 of the MMDR Act to investigate and submit a report to the police under Section 173 of Cr.P.C. For the purpose of clarity, I quote section 22 of the MMDR act, which reads as under:
"22. Cognizance of offences.― No court shall take cognizance of any offence CRL.P. NO.101999 of 2017 :8: 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."
On close scrutiny of the said section, it clarifies the fact that a complaint has to be filed by a person authorised by the Central Government or the State Government in respect of the offences punishable under the provisions of the MMDR Act or the Rules thereunder. By Notification dated 21.01.2014, bearing No.CI 21 MMN (2) 2014, Bangalore, the Government of Karnataka has authorized the Officers/authorities, as per the table provided in the notification, who can file the complaint. For the purpose of brevity I quote the said notification, which reads as under:
"In exercise of the powers conferred by sub- sections (3) and (4) of Section 21 and Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (Central Act 67 of 1957) and sub-rule (3) of Rule 43 and Rule 6 of the Karnataka CRL.P. NO.101999 of 2017 :9: Minor Mineral Concession Rules, 1994 and in modification of Notification No.CII 186/96/19839, dated 4-2-1993, the Government of Karnataka do hereby authorize the officers/authorities specified in column (2) of the table below in respect of the area specified in the corresponding entries in column (3) thereof, for the purpose of the said sub- sections (3) and (4) of Section 21 and Section 22 of the Act and sub-rule (3) of 43 and Rule 46 of the Karnataka Minor Mineral Concession Rules, 1994 -
Sl. Designation of Officers/
Jurisdiction Department
No Authorities
(1) (2) (3) (4)
1. The Additional Director Whole of the Department of
(Mineral Administration) State Mines and
Geology
2. The Joint Director Within their Department of
South/North Zones jurisdiction Mines and
Geology
3. Deputy Director Whole of the Department of
(Mineral Administration) State Mines and
Geology
4. The Deputy Respective Revenue
Commissioner Districts Department
5. The Superintendent of Within their Police
Police/Police jurisdiction Department
Commissioner
6. The Deputy Conservator Respective Forest
of Forest jurisdiction Department
7. The Deputy Respective Police
Superintendent of Police Sub-division Department
8. Deputy Director/Senior Within their Department of
Geologist jurisdiction Mines and
Geology
CRL.P. NO.101999 of 2017
: 10 :
9. The Assistant Respective Revenue
Commissioner sub-division Department
10. Geologists Within their Department of
jurisdiction Mines and
Geology
11. The Tahsildar Respective Revenue
Taluk Department
12. The Circle Within their Police
Inspector/Inspector of jurisdiction Department
Police
13. Sub-Inspector of Police Within their Police
jurisdiction Department
14. The Revenue Inspector Respective Revenue
Hoblies Department
15. The Range Forest Respective Forest
Officers Range Department
10. On going through the said notification, it is seen that the Sub-Inspector of Police having the jurisdiction can also file a complaint. Even the subsequent amendment also appraises the persons, who are at check post and other places, can also seize the said sand or vehicles which are used for the commission of such offences.
11. On close reading of Section 22 of the MMDR Act, it states that except upon a complaint in writing made by a person authorized in this behalf, no Court CRL.P. NO.101999 of 2017 : 11 : shall take cognizance of any offence punishable under the provisions of the MMDR Act or any Rules made thereunder. The word "complaint", in Cr.P.C., has been defined in Section 2 sub-clause (d) which reads as under:
"2. Definitions.- In this Code, unless the context otherwise requires,-
(a) ........................
(b) ........................
(c) .........
(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."
On close reading of the said section, "complaint" refers to any allegation made orally or in writing to a Magistrate. In the instant case on hand, no such private complaint has been filed before the Magistrate making CRL.P. NO.101999 of 2017 : 12 : allegations to the effect that the accused person had illegally stored the sand in his land. The Co-ordinate Bench, while dealing with the similar issue, has summarized the guidelines to be borne in mind by the police and the Magistrate while dealing with cases under the MMDR Act. In the case of Sri Vivek and Another quoted supra at Para No.37, it has been observed as under:
"37. Before concluding even at the cost of repetition, I, feel it just and necessary to summarize the guidelines to be born in mind by the police, Magistrates and the special Courts, and the same are briefly enumerated hereunder.
GUIDELINES:
(1)The Special Court constituted under the MMDR Act, has no jurisdiction to directly take cognizance of the offences under the MMDR Act and KMMC Rules, even along with any other penal offences unless the case is committed by the jurisdictional Magistrate. It is made clear that the Special Court has no jurisdiction to receive a final report from the Police u/s.173 of Cr.PC or to receive any private complaint under the MMRD Act, directly CRL.P. NO.101999 of 2017 : 13 : from the authorized officer and take cognizance of the offences either under the MMRD Act or any other penal laws. If any such complaint is erroneously received and pending, the Special court has to follow the procedure as contemplated under section 201 of Cr.PC. and return the complaint for presentation to the proper Court with an endorsement to that effect. Like wise if any police report is received the same has to be transferred to the jurisdictional Magistrate invoking the provisions under section 228 (1) (a) of Cr.PC for appropriate action.
(2)The Police cannot file a final report under section 173 of Cr.PC for the offences under the MMRD Act & KMMC Rules either to the jurisdictional JMFC Court or to the Special Court.
However, they can file the report for the offences under the IPC or any other penal law for the time being in force before the jurisdictional Magistrate. (3) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act & KMMC Rules on the basis of any Police report u/s.173 of Cr.PC. However, if any penal provisions under the IPC or any other penal laws are available in the final report of the police, if there is no other legal CRL.P. NO.101999 of 2017 : 14 : bar; the Magistrate can take cognizance of such offences under the IPC or other penal laws for which he is empowered, except the offences under MMDR Act & KMMC Rules.
(4)A private complaint is only contemplated under the MMDR Act & KMMC Rules and thus it has to be filed u/s.22 of the Act by the competent authorized officer under the MMRD Act & KMMC Rules. Even if other offences under any other penal laws, are also included along with offences under MMDR Act and Rules, the jurisdictional Magistrate, has to take cognizance of the offences under MMDR Act & KMMC Rules only on the basis of the private complaint even though other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.RC, the Magistrate has to commit the entire case to the Special Court for trial.
(5)The Special Court gets jurisdiction to try the offences under the MMRD Act & KMMC Rules there under including any other offences under any other penal laws for the time being in force only after the case is committed to it for trial by the jurisdictional Magistrate.
CRL.P. NO.101999 of 2017 : 15 : (6) If the authorized officer under section 22 of the MMDR Act, has filed a private complaint, and the Magistrate has taken cognizance of the same, and during the course of inquiry or trial of private complaint, it is made to appear to the Magistrate that an investigation by the police in the same case is pending in relation to the offence which is the subject matter of inquiry or trial held by him then the Magistrate has to stay the proceedings of such inquiry or trial and call for the report on the matter from the police, and there after commit both the cases to the special court, for trial. (7) If the police have already filed the report under section 173 of Cr.P.C. for the offences under the MMRD Act and also under Other penal laws, like I.P.C. Motor vehicles Act or under any other penal law for the time being in force where the Magistrate has taken cognizance of the offences under other Penal laws, during inquiry or trial of such case, if any Private complaint is filed as per section 22 of the said Act, by the authorized officer for the offences under MMDR act and Rules arising out of same incident, the Magistrate shall stay all further proceedings, and commit both the cases to the special court for trial of both the cases, as per section 323 of Criminal Procedure CRL.P. NO.101999 of 2017 : 16 : Code, after following the procedure as contemplated under section 202 (2) of Cr.PC. (8) The Special Court on receipt of the cases as noted at guidelines 6 and 7, relating to the same incident, as the case may be has to try both the cases together, in accordance with law, adopting the procedure of a sessions trial, in view of the powers vested as per section 30 C of MMDR Act. (9) The provisions and powers of the Magistrate with regard to the bail and also with regard to the interim custody of the seized properties can be exercised by the Magistrate during the inquiry till the committal of the case to the Special Court. (10) After committal of the case, the Special Court being the trial Court shall have all the powers of the Sessions Court regarding bail and disposal of the properties involved in the case, as provided under the provisions of the Code of Criminal Procedure."
12. I am conscious of the fact that the object of restriction put by the Act in the illegal mining, transportation and storage of minerals including sand is CRL.P. NO.101999 of 2017 : 17 : going to affect the ecological system. In a larger view, the impact of indiscriminate uninterrupted sand quarrying has already brittled ecological set up in ours. According to the Expert Reports, sand and gravel have been used not only for the purpose of construction of building but is also used for the roads there is a high demand for sand and gravel. The persons who have been authorized have not been doing the said act in accordance with law and as such the said MMDR Act has been passed. If illegal sand mining and other activities are allowed to be continued, the stability of sand bed and gravel bed is going to be affected and for the excavation of these things many ditches are made and the excavated areas which are there will be a threat to the world at large. All these things create ecological imbalance like lack of vegetation, short of water problem etc. But, however, while considering the contentions, the Court has to go as per the provisions of law. As stated supra, the complaint has been filed by the PSI, CRL.P. NO.101999 of 2017 : 18 : Nandagad Police Station to PSHO, Nandagad Police Station. As per Section 22 of the MMDR Act, the complaint has to be filed before the jurisdictional Magistrate, but no such complaint has been filed by the PSI. Section 22 of the MMDR Act puts a restriction on the Court to take cognizance of any offence punishable under the Act or Rules made thereunder except upon a complaint in writing made by a person authorized in this behalf. Mere initiation of the proceedings for commission of the offence under the MMDR Act, on the basis of the complaint is restrict, but it shall not debar the police from taking action against the persons for committing theft of sand or minerals by exercising the power provided under the Code of Criminal Procedure and submit a Report to the jurisdictional Magistrate for taking the cognizance against such person. In case of theft of sand and gravels from the government land or the government property, police can register the case, investigate the same and submit a report under Section CRL.P. NO.101999 of 2017 : 19 : 173 of Cr.P.C. for taking cognizance as contemplated under section 190(1)(d) of the Code of Criminal Procedure. In that light, the proceedings initiated under Section 379 of the Indian Penal Code are sustainable in law.
13. Another contention is that the gap, with regard to survey number, in the charge- sheet is not filled. I have gone through the same. No doubt there are some gaps regarding the survey number, but that is not an illegality; it is only an irregularity. Be that as it may. The fact of seizing of the sand is not in dispute and it is also not the case of the petitioner that he has stored with permission. When seizing of the sand is not disputed, under such circumstances, it is not a case to hold that there is no theft of sand so as to quash the proceedings. If a person without any lease or licence or any authority enters the prohibited area, removes the sand, gravels and other minerals dishonestly, is liable to CRL.P. NO.101999 of 2017 : 20 : be punished under IPC. If they are not punished in accordance with law, they will guzzle the sand, minerals of this nation and make this haven country a barren land and waste. What distinction is there under the MMDR Act and offences under the IPC has been dealt by Hon'ble Apex Court in the case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75 and at para Nos.71 and 72 it has been observed as under:
"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 CRL.P. NO.101999 of 2017 : 21 : 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."
CRL.P. NO.101999 of 2017 : 22 : Keeping in view the above ratio and the said facts and circumstances, I pass the following order:
Petition is partly allowed. The proceedings in C.C. No.656/2017 pending on the file of Principal Civil Judge and JMFC, Khanapur, insofar as the offences under Sections 21 and 22 of the MMDR Act are hereby quashed; and insofar as the offence punishable under Section 379 of IPC is concerned, the learned Principal Civil Judge and JMFC, Khanapur is hereby directed to proceed in accordance with law, to hold a trial and conclude the matter.
Sd/-
JUDGE Kms