Karnataka High Court
Rudramuni vs State Of Karnataka on 26 September, 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.825/2019
C/W
CRIMINAL APPEAL NO.1032/2018
IN CRIMINAL APPEAL NO.825/2019
Between:
Rudramuni
Aged about 25 years
S/o Saati Thippanna
Kalamarahalli Village
Challakere Taluk
Chitradurga District - 577 501. ... Appellant
(By Sri. H.L.Jayaramu, Advocate)
And:
State of Karnataka
Rep. by Challakere Police
Public Prosecutor
High Court Building
Bengaluru - 560 001. ... Respondent
(By Sri. Thejesh P., HCGP)
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IN CRIMINAL APPEAL NO.1032/2018
Between:
Lingaraju T.
S/o Thippeswamy D.
Aged about 36 years
Police Officer
R/o Abbinahole Police Station
Hiriyuru Taluk
Chitradurga District. ... Appellant
(By Sri. H.L.Jayaramu, Advocate)
And:
The State by:
Challekere Police Station
Chitradurga District - 573 201
Represented by:
State Public Prosecutor
High Court Building
Bengaluru. ... Respondent
(By Sri. Thejesh P., HCGP)
These Criminal Appeals are filed under Section
374(2) of Cr.P.C. praying to set aside the judgment and
order of conviction dated 05.05.2018, passed by the
Principal District and Sessions Judge at Chitradurga in
Spl.C.(MMRD) No.16/2017 - convicting the
appellant/accused Nos.1 and 4 for the offence
punishable under Section 21(1) read with Section 4(1A)
of MMRD Act and Section 379 of IPC.
These Criminal Appeals are on for Admission, this
day, the Court delivered the following:
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JUDGMENT
Criminal Appeal No.825/2019 has been preferred by the appellant/accused No.1 and Criminal Appeal No.1032/2018 has been preferred by the appellant/accused No.4 being aggrieved by the judgment of conviction and order of sentence passed by the Court of Principal District and Sessions Judge, Chitradurga in Spl.C.(MMRD)No.16/2017 dated 05.05.2018, whereunder, accused Nos.1 and 4 have been convicted and sentenced for the offence punishable under Section 21(1) read with Section 4(1A) of MMRD Act and Section 379 of IPC.
2. I have heard the learned counsel for the appellants/accused Nos.1 and 4 and learned High Court Government Pleader for the respondent-State.
3. The factual matrix of the prosecution case in brief is that on 26.08.2015 at about 11.30 pm, when CW.1-Head Constable was in the police station, he -4- received a credible information that there is illegal transportation of sand and material. He conducted raid at agricultural land belonging to one Maranna. Accused Nos.1 and 2 being the driver and owner of the tractor bearing registration No.KA-16/TA-2524-2525 and accused Nos.3 and 4 being the driver and owner of tractor bearing registration No.KA-16/TA-5458 were found in illegal transportation of sand without having valid permit or license in the said tractors. On the basis of that a panchnama has been drawn and a case has been registered. The investigation has been conducted and charge sheet has been filed. Thereafter, the learned Sessions Judge took the cognizance of the offence and secured the presence of the accused persons. After hearing the learned counsel appearing on behalf of both the parties, charge was framed, read over and explained to the accused persons. The accused persons have pleaded not guilty and claimed to be tried and as such, the case was fixed for trial.
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4. In order to prove the case of the prosecution, it has got examined 13 witnesses as PWs.1 to 13 and got marked 15 documents as Exs.P1 to P15. Thereafter, the statement of the accused persons recorded under Section 313 of Cr.P.C., and accused denied the incriminating evidence and they have neither led any defence evidence nor marked any documents. After hearing the learned counsel for both the parties, the impugned judgment came to be passed.
5. It is the submission of the learned counsel for the appellants that the impugned judgment of conviction and order of sentence passed by the trial Court is not sustainable either in law or on facts of the case. It is his further submission that though the Court below has no jurisdiction to entertain the said case, was proceeded with the matter and has convicted the accused. It is further submitted that as per Section 22 of the Mines and Minerals (Development and -6- Regulation) Act, 1957 (hereinafter referred to as 'the Act' for short), the cognizance of the offence to be taken under the said Act only if a private complaint has been filed by a person authorized in this behalf. In the instant case, the Police Inspector has filed the charge sheet and as such, the conviction arrived at by the trial Court is not sustainable in law. It is his further submission that accused No.4 is neither the owner nor the concerned party to the said tractor. Ex.P14-the ownership records clearly show that one Tippeswamy is the father of accused No.4 and he is the owner of the said tractor and trailer. Without making him as accused No.1, he has been quoted as witness as CW.11 and wrongly with a vengeance, his son has been shown as accused No.4 and his son has been convicted. The said aspect has also been deposed by PW.11 in his evidence to concur the said documents. It is his further submission that when once the filing of the charge sheet itself is not in accordance with the law as contemplated, -7- then under such circumstances, the accused persons also cannot be convicted for the offences punishable under Section 379 of IPC. On these grounds, he prayed to allow the appeal and set aside the impugned orders and acquit the appellant/accused Nos.1 and 4.
6. Per contra, learned High Court Government Pleader argued and fairly conceded the fact that in the instant case, the charge sheet has been filed by the police and no private complaint has been filed as contemplated under Section 22 of the Act. But however, it is his further submission that when an offence has been committed by the accused persons under Section 379 of IPC, the police will be having jurisdiction to investigate the said offence under Section 379 of IPC, the Court will be having jurisdiction to entertain the said charge sheet and the accused is liable to be convicted for the said offence. It is his further submission that the appellants/accused Nos.1 and 4 -8- have not made out any good grounds to show that they were not carrying sand in the said tractors and they were not having permit or license to transport the same. In the absence of any such permit, the only presumption is that they were illegally transporting the sand by stealing the same from the Government owned property and thereby, it clearly shows that the ingredients of Section 379 of IPC are attracted and the trial Court has rightly convicted the accused persons. On these grounds, he prayed to dismiss the appeal.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellants/accused Nos.1 and 4 and the learned High Court Government Pleader for the respondent-State and perused the records including the trial Court records, which have been already secured in these cases. -9-
8. In order to prove the case of the prosecution, it has got examined 13 witnesses. PW.1 is the Head Constable and also the complainant. He has deposed that on 25.08.2015 at about 11.30 pm, when he was on duty at sand point, he received a credible information and immediately, along with his staff, he went and made search. They caught hold accused No.1 and came to know that the remaining accused persons have also involved in the said act, he took the said tractors and trailers into his possession and drawn the recovery mahazar as per Ex.P1. Thereafter, he has filed a compliant as per Ex.P2. During the course of cross examination, though it has been suggested that he has no right or power to make raid, such suggestions have been denied and the other suggestions have also been denied. Nothing to discard the evidence of PW.1 and nothing has been elicited from the mouth of this witness.
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9. PW.2 is the witness to seizer mahazar panchanama at Ex.P1 and he was present. He has also supported the case of the prosecution about the seizer of two tractors along with sand, accused No.1 was also present at the place of incident. During the course of cross-examination of PW.2, nothing has been elicited so as to discard his evidence. PW.3 is also a witness to Ex.P1-Tractor recover mahazar. PW.4 is the witness to recovery mahazar at Ex.P3. There is consistency in the evidence of PW.3. Nothing has been elicited to discard the evidence of PW.4.
10. PWs.5 and 9 are the witnesses to the mahazar-Ex.P4 and they have been treated as hostile and even, during the course of cross-examination, nothing has been elicited so as to substantiate the case of the prosecution. PW.6 is the witness to the mahazar at Ex.P3, he has partly supported the case of the prosecution and he has further deposed that the said
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vehicles have been seized and subsequently, released in favour of respective owners. PWs.7 and 8 are the mahazar witnesses to Ex.P5 and they have been treated as hostile.
11. PW.10 is the eye witness to the incident, he has deposed that when he was working as police constable, there was an information to PW.1 that there is illegal transportation of sand. Along with him, he secured PWs.2 and 3 and had been to the spot and caught hold of accused No.1, seized the tractor and trailer and brought to the police Station. During the course of cross-examination, nothing has been elicited from the mouth of this witness.
12. PW.11 is the Village Accountant, he has deposed about the issuance of genealogical tree as per Ex.P6 in respect of accused No.4. PW.12 is the Police Constable, in his evidence, he has deposed that as per the direction of PW.13, he went in search of tractor
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trailer. He secured the tractor trailer and produced before SHO by producing report as per Ex.P3-recovery mahazar.
13. PW.13 is the PSI, he has deposed that PW.1 came to the police station and filed complaint as per Ex.P2 and accordingly, he registered a case and issued FIR as per Ex.P8. He has also spoken regarding the part of investigation and recording of statement of witnesses and drawing up of the mahazar. He has also filed the charge sheet against the accused.
14. On going through the evidence produced by the prosecution, it clearly goes to show that the charge sheet has been filed by the PSI. As per Section 22 of the MMRD Act, there is a bar to investigate and submit the report by the police under Section 173 of Cr.P.C. For the purpose of brevity, I quote Section 22 of the Act, which read as under:
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"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."
On close reading of aforesaid section, it clarifies that the complaint has to be filed by a person authorized by the Central Government or the State Government in respect of the offences punishable under the provisions of MMRD Act or the rules made there under. No doubt, by Notification bearing No.CI 21MMN(2) 2014, Bengaluru, dated 21.1.2014, the Police Inspector and Sub-Inspector of Police are the authorized Officers by their designation. But it has not been denied. He has registered a case and investigated under Section 173 of Cr.P.C. In that light, the contention raised by the learned counsel for the appellants accused Nos.1 and 4 appears to be having force and though
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there is a bar, the case has been registered by the police and have investigated and filed charge sheet. The trial Court without looking into the said provision has committed serious error and wrongly convicted the accused for the offences punishable under Section 21(1) of the Act. On close reading of Section 22 of the Act, it states that except upon a complaint in writing made by a person authorized in this behalf, no Court shall take cognizance of any offence punishable under the provisions of the MMRD Act or any rules made thereunder. Taking into consideration, the above said facts and circumstances, the cognizance taken and proceeding in the matter that itself is illegal and it is contrary to the law as contemplated under the MMRD Act. During the course of the argument, learned counsel for the appellant/accused contended that the provisions of Section 379 of IPC is also not attracted, since, the investigation conducted is not as contemplated under the Act. As could be seen from Section 173 of Cr.P.C.,
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the police inspector is having right to take cognizance of the offence punishable under Indian Penal Code. Accordingly, he has investigated the case and filed charge sheet. Even as could be seen from the records, the accused neither produced any documents to show that he has obtained either permit or any license to transport the sand in his vehicles. In the absence of any such material, the only inference, which can be drawn is that, the appellant/accused was carrying the said sand by stealing from the Government land or river and thereby, he has committed the offences punishable under Section 379 of IPC. The distinction between the offences punishable under the MMDR Act and the Indian Penal Code has been elaborately dealt with by the Hon'ble Apex Court in the case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75 At paragraphs-71 and 72 of the said decision, it has been observed as under:
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"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
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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. Keeping in view of the above said facts and circumstances and on close reading of the said paragraphs, it is clear that taking cognizance by the Magistrate on the basis of the complaint filed by the police for the commission of theft of sand and mineral is
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justifiable. However, if a case is registered for theft of the sand and other minerals and after investigation if final report is filed under Section 173 of Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as per Section 190(1)(b) of Cr.P.C. that is justifiable. Then under such circumstances, it is not to be held that the Court without there being any jurisdiction have entertained charge sheet and has wrongly convicted for the offence under Section 379 of IPC.
16. It is the specific contention of the learned counsel for the appellant that accused No.4 is not a owner of the said tractor trailer bearing registration No.KA16-TA-5458. In this behalf, he has relied upon Ex.P14-B registrar extract. Learned High Court Government Pleader has also not seriously disputed the said fact that in Ex.P14, the name of the owner has been shown as Tippeswamy and he is the father of
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accused No.4. But he has not made as accused in this case. But wrongly accused No.4 has been arrayed as the accused and even PW.11 in his evidence has admitted the fact that the name of the father is Tippeswamy.
17. Under such facts and circumstances, I am of the considered opinion that it is owner of the tractor who is liable for the offences punishable under Section 379 of IPC, without there being any material, the trial Court has wrongly convicted the appellant/accused No.4. In this behalf there is material and the contention raised by the learned counsel for accused No.4 is having force so as to appreciate the contention. Taking into consideration of the above said facts and circumstances, I pass the following order:
ORDER Criminal appeal No.825/2019 is partly allowed and judgment of conviction and order of sentence passed by the Court of Principal District and Sessions Judge,
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Chitradurga in Spl.C.(MMRD)No.16/2017 dated 05.05.2018 insofar as for the offences punishable under Section 21(1) read with Section 4(1A) of the Act is set aside and insofar as the offences punishable under Section 379 of IPC is concerned, the same is confirmed.
Criminal Appeal No.1032/2018 is allowed and the judgment of conviction and order of sentence passed the Court of Principal District and Sessions Judge, Chitradurga in Spl.C.(MMRD)No.16/2017 dated 05.05.2018 is set aside and the appellant/accused No.4 is acquitted.
In view of disposal of the main appeal, I.A.No.2/2019 does not survives for consideration.
Accordingly, the same is also disposed of.
Sd/-
JUDGE NR/-