Karnataka High Court
Balappa Rama Dhanagar vs The State Of Karnataka on 14 January, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL PETITION NO.102167/2018
BETWEEN:
BALAPPA RAMA DHANAGAR ,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: RAMATIRTH, TQ: ATHANI,
DIST: BELAGAVI.
...PETITIONER
(BY KUM.RABECCA S, ADVOCATE
FOR SRI.VITTHAL S TELI, ADVOCATE)
AND:
THE STATE OF KARNATAKA ,
REP BY ITS ADDITIONAL
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD, THROUGH ATHANI
POLICE STATION, ATHANI,
TQ: ATHANI, DIST: BELAGAVI.
...RESPONDENT
(BY SRI.PRAVEEN K UPPAR, HCGP)
THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C.
SEEKING THAT THE REGISTRATION OF FIR IN ATHANI P.S.
CRIME NO. 247/2018 ON THE FILE OF THE PRL. CIVIL JUDGE
& JMFC COURT, ATHANI, FOR THE OFFENCES P/U/S 379 OF
IPC & U/S 4(1), 4(1A), 21 OF MMDR ACT, 1957 & U/S 3, 32, 44
OF KMMC RULE 1994, BE QUASHED INSOFAR AS
PETITIONER/ACCUSED NO.2 IS CONCERNED.
2
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the arguments of the learned counsel appearing for the petitioner and the learned HCGP for the respondent-state.
2. The factual matrix of this case is that on 16.04.2018 at about 6.00 P.M. the complainant was on patrolling duty near the Ambedkar Circle, Athani has received credible information that a tractor-trailor loaded with sand was being transported illegally, thereafter the complainant along with staff and panchas at 6.20 p.m. left Athani Police Station and proceeded towards the spot and observed that one tractor-trailor was coming from Dodawad towards Satti and they intercepted and stopped the said vehicle and the driver of the vehicle ran away. On enquiry, it was revealed that without having any pass or permit the driver and the 3 owner of the vehicle were involved in illegal sand mining and seized the tractor-trailor along with 1 brass of sand worth Rs.3,000/- in the presence of panchas. Therefore, the complainant lodged the complaint. Thereafter, the case has been registered for the offences under Section 379 of IPC and under Sections 4(1), 4(1A) and 21 of Mines and Minerals (Development and Regulation) Act, 1957 (for short, the 'Act') and under Rules 3, 32 and 44 of Karnataka Minor Mineral Concession Rules 1994 (for short 'Rules').
3. The main contention of the petitioner in this case is that he has not committed any of the offence as alleged against him and there is a bar under Section 22 of the Act and the Rules and the complainant suo moto registered the case and invoked the offences under the Act and the Rules. The counsel also relied upon the judgment reported in AIR 2015 SC 75 in the case of State of NCT of Delhi Vs. Sanjay with Jaysukh Bavanji 4 Shingalia Vs. State of Gujarat and Another with Malabhai Shalabhai Rabari & Others Vs. State of Gujarat & Others with Kalubhai Dulabhai Khachar Vs. State of Gujarat & Another, wherein it is held that there is bar to take cognizance and only on a private complaint filed by the Authorized Officer the Court can take the cognizance. Hence, the petition is liable to be quashed.
4. Learned counsel appearing for the petitioner has also reiterated the grounds urged in the petition and contended that the very complainant is not an authorized person and he cannot invoke Sections 4(1), 4(1A) and other offences under the Act and hence the proceedings initiated against the petitioner is liable to be quashed.
5. Per contra, the learned HCGP appearing for the respondent-State contends that the P.S.I. has 5 registered the case based on the credible information and further contends that in order to invoke the offence under the Act, the Authorized Officer has to file the complaint before the Magistrate and under Section 22 of the Act, the Court can take cognizance in respect of the offences under the Act. However, the complainant registered for the offence under Section 379 of IPC cannot be quashed in view of the judgment of the Hon'ble Apex Court passed in State (NCT of Delhi) Vs Sanjay, (2014) 9 SCC 772. Hence, prayed this Court only to consider the offence with regard to the Act and the Rules and not for the offence under Section 379 of IPC.
6. Having heard the learned counsel for the petitioner and the learned HCGP for the respondent- State, this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. to quash the proceedings.
6
7. The factual matrix of the case is that on 16.04.2018 on credible information a search was conducted and the petitioner was transporting the sand in a tractor-trailor illegally towards Satti. Hence, a case has been registered for the aforesaid offences. The main ground urged in the petition is that the complainant does not have any power to initiate the proceedings under the Act and further contended that Section 22 of the said act, only the Court can take cognizance if any complaint is filed by the authorized person on behalf of the Central Government or the State Government.
8. Before adverting to the facts of the case, I would like to refer the proviso of Section 22 of the Act, which reads as follows:
"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 7 person authorized in this behalf by the Central Government or the State Government."
9. On clear reading of Section 22 of the Act, it is clear that the Court can take cognizance only on the private complaint filed by the authorized person that too in respect of the offences under the Act and on perusal of the complaint and the FIR which is registered against the petitioner, the police have invoked the provisions of Sections 4(1), 4(1A) and 21 of the Act and under Rules 3, 32 and 44 of the Rules and under Section 379 of IPC. Hence, I am of the opinion that the very initiation of the proceedings against the petitioner under Sections 4(1), 4(1A) and in respect of penal provisions and Section 21 of the Act and Rules 3, 32 and 44 of the Rules, is contrary to law and when specific bar is there to take cognizance in the absence of a separate complaint by the authorized persons. Hence, I am of the opinion that in respect of these provisions, the very initiation of the 8 proceedings against the petitioner is contrary to law and the same is liable to be quashed. Insofar as invoking Section 379 of IPC is concerned, I do not find any reasons to interfere with regard to the initiating the proceedings against the petitioner for the offence under Section 379 of IPC. Based on the police information the Court can proceed for the offence under Section 379 of IPC.
10. The Hon'ble Apex Court in the case of State (NCT of Delhi) Vs Sanjay, (2014) 9 SCC 772, distinguished with regard to the offences under the Act and also under Section 379 of IPC and also further held that there is no double jeopardy and both the offences are distinct and Court can proceed based on the police complaint in view of the offence under Section 379 of IPC. Hence, in view of the principles laid down in the judgment referred supra, I proceed to pass the following;
9
ORDER The petition is partly allowed.
The proceedings initiated against the petitioner for the offence punishable under Sections 4(1), 4(1A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and under Rules 3, 32 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 are hereby quashed. The initiation of the proceedings under Section 379 of IPC can be continued against the petitioner.
However, the concerned authorized person is having at liberty to proceed against the petitioner in respect of the MMDR Act in accordance with law.
Sd/-
JUDGE Sh