Karnataka High Court
Hanumanthamma W/O. Lenkeppa vs The State Of Karnataka on 2 April, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO.11751/2013
BETWEEN
1. HANUMANTHAMMA W/O. LENKEPPA
AGE: 33 YEARS,
OCC: AGRICULTURE
PRESIDENT OF GRAM PANCHAYATH
M SUGURU
R/O. M SUGURU VILLAGE
SIRAGUPPA TALUK
DIST: BELLARY.
2. SATHYANARAYANA S/O. RAMKOTAIAH
AGE: 52 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
3. SHIVAMMA W/O. DURGAPPA
AGE: 32 YEARS,
OCC: COOLIE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK DIST:
BELLARY.
4. MALE HULIGAMMA W/O. SHESHAPPA
AGE: 29 YEARS,
OCC: COOLIE
2
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK DIST:
BELLARY.
5. CHALUVADI S/O. SHANKRAPPA
AGE: 45 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
6. KASIM SAB S/O. DODDA KASIM SAB
AGE: 40 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
7. SANNA KAREPPA S/O. KARIBASAPPA
AGE: 33 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
8. SANNA JADEPPA S/O. HANUMANTHAPPA
AGE: 35 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
9. GANGAMMA W/O. DODDABASAPPA
AGE: 29 YEARS,
OCC: AGRICULTURE
VICE PRESIDENT,
GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
3
DIST: BELLARY.
10. GADDEMMA W/O. RAMKRISHNA
AGE: 32 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
11. INDRAMMA W/O. IRANNA
AGE: 34 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
12. DODDABASAPPA S/O. HANUMANTHAPPA
AGE: 45 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
13. KORUVARA THIMMAPPA YANKOBAPPA
AGE: 45 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
14. LAKSHMI W/O. HULAGAPPA
AGE: 40 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
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15. RUDRA GOUDA S/O. VEERANA GOUDA
AGE: 35 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
16. CHANNAMMA W/O. HOSAGERAPPA
AGE: 35 YEARS,
OCC: AGRICULTURE
MEMBER OF GRAM PANCHAYATH M SUGURU
R/O. M SUGURU VILLAGE SIRAGUPPA TALUK
DIST: BELLARY.
... PETITIONERS
(BY SRI.: S M KALWAD, ADV.)
AND
1. THE STATE OF KARNATAKA
R/BY ITS SRI GERI PS
THROUGH ITS ADDL. SPP HIGH COURT OF
KARNATAKA
DHARWAD.
2. THE TAHASILDAR
SHIRUGUPPA
TQ & DIST: BELLARY.
... RESPONDENTS
(BY SRI.V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL PETITION IS FILED U/S 482 OF
CR.P.C. SEEKING TO QUASH THE COMPLAINT AND FIR
REGISTERED BY THE RESPONDENTS AGAINST THE
PETITIONERS IN CRIME NO.80/2011 REGISTERED BY THE
5
SIRIGERI P.S. FOR THE OFFENCES P/U/S 406, 408 & 384
R/W 149 OF IPC, PENDING ON THE FILE OF I-ADDL. JMFC
COURT, BELLARY.
This petition coming on for admission this day, the
Court made the following:
ORDER
The present petition is filed seeking relief of quashing the entire proceedings in Crime No.80/11 registered by Sirigere police for the offences punishable under Sections 406, 408, 384 r/w 149 of Indian Penal Code, 1860. The learned counsel for the petitioner strenuously argued that the offence alleged though under the Indian Penal Code, 1860, but, they also attracts The Mines and Minerals (Development and Regulation) Act, 1957.
2. He also contends that the Thashildar has absolutely no jurisdiction to file such complaint before the police. The M.M.R.D. Act, Section 22 creates a serious legal bar for filing the complaint before the police. If at all, any offence alleged to have committed under the M.M.R.D. Act, a private complaint has to be filed.
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3. Secondly, he contends that even the entire allegations in the complaint are translated in to evidence, that the same would not to constitute any offence alleged against the petitioner. Thirdly, he contends that on the earlier occasions also this Court exercised the powers under Section 482 of Cr.P.C. quashed such proceedings. On these contentions, the learned Counsel pleads that the entire proceedings be quashed.
4. Contrary to this, the learned Addl. State Public Prosecutor strenuously contends that the offences alleged are not under the MMRD Act, but, under Sections 406, 408, and 384 of Indian Penal Code, 1860 r/w 149 of Indian Penal Code, 1860. Therefore, the provisions of MMRD Act, are not attracted. Therefore, Section 22 of the M.M.R.D. Act, is not applicable. Secondly, he contends that the allegations made in the complaint clearly discloses that the petitioners by mis- using their powers as President, Secretary and Members of M.Sugur Gram Panchayat, have illegally passed the resolution and sold the sand. Therefore, the said act of the 7 petitioners was questioned by filing a complaint. Therefore, he submits that the contentions raised by the petitioners are not tenable and the investigation cannot be scuttled down, at the threshold. The truth or otherwise of the allegations are to be found out only after the investigation by the police.
2. In view of the above said contentions, this Court has to see whether there are any legal infirmities in the complaint or even if the entire materials, complaint averments translated into evidence, it does not constitute any offence against the petitioners so as to quash the entire proceedings.
3. It is seen from the records that the Tahashildar Siraguppa, Taluk Bellary, lodged a police complaint on 25/11/2011 making allegations that the petitioner being the Development Officer, Secretary, Vice President and members of M.Sugur Gram Panchayat, they have abused their position as public servant and mis-using their powers, they sold the sand of Tungabhadra river, which river passing through the Sugar village, by passing an illegal resolution in the Panchayat and in fact, they have collected Rs.50/- per 8 tractor for the purpose of selling the sand illegally and making money for themselves. On the basis of such allegations, the police have registered a case in Crime No.80/11 for the above said offence and started the investigation. At that juncture, the present petition is filed and the stay order has been obtained.
4. Now looking to the above said allegations, there are no allegations made as such which attracts the provisions of the MMRD Act. Even Section 4 of the M.M.R.D. Act, does not disclose that any offences under Sections 406, 408, 384 of IPC have to be dealt with under the M.M.R.D. Act itself. Therefore, Section 22 of the Act, is not attracted. The said provision reads as follows:-
"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".
5. Looking to the above said provision, if at all any offence is being committed under the M.M.R.D.Act, the 9 Competent Authority has to file a private complaint and the police have no jurisdiction to investigate the matter directly, unless the matter is referred by the Court. Therefore, such contention, in my opinion, is not tenable. Second contention is that the contents of the FIR, even if it is translated or taken as its face value, it will not constitute any offence. On over all reading of the complaint, if it discloses that any offence is being committed, then the police will get jurisdiction to investigate into the matter. The allegations are that the petitioners have mis-used their position as Vice President, Development Authority and Members, have passed an illegal resolution and they have sold the sand by collecting Rs.50,/- per tractor. Whether this amounts to any offence or not has to be thrashed out during the course of full dressed investigation. Therefore, at this stage, it can not be said that the complaint averments do not constitute any offence as alleged against the petitioners.
6. Another point that is raised by the learned Counsel for the petitioners is that on previous occasion, this court 10 while dealing with similar matters quashed the criminal proceedings. Now, let me see the said orders passed by this Court in Crl.P.No.7347/2010 connected with Crl.P.7348/2010, 7349/2010, 7350/2010, the Court has dealt with the matter, wherein the offences alleged under Section 4(1)(1A) of M.M.R.D.Act. Specifically the M.M.R.D. Act has been invoked and the Court has held no police complaint can be filed and it should be by way of a private complaint. Therefore, mentioning that the petition came to be allowed and proceedings before the police were quashed. In Crl.P.No.4006/2007, it is alleged that the police have registered a case in Crime No.118/2007 for the offence under Section 379 r/w 511 Indian Penal Code, 1860. The specific allegations made is that, the petitioner and other persons in the said case were transporting sand without a valid permit. The Court observed that though the provisions of IPC are invoked, but virtually, Section 4(1A) of the M.M.R.D. Act is attracted. Therefore, the proceedings ought to have been initiated under the M.M.R.D. Act. On that ground, the 11 proceedings came to be quashed. In another Crl. Petition No.10666/2011, this Court again dealt with the matter pertaining to the offence under Section M.M.R.D. Act, under Sections 4(1)(1A) and 21 of the M.M.R.D. Act. The Court held that the complaint filed before the police, was not maintainable. Hence, the proceedings were to be quashed. In none of the above said decisions, the provisions under Section 406, 408, 384 r/w Section.. 149 of Indian Penal Code, 1860 were not involved, but the learned Counsel has not brought to my notice whether there are any offence under Section MMRD Act read with Sections 400 and 384 of Indian Penal Code, 1860 were also involved. Therefore, I am of the opinion, when an offences alleged are exclusively under the Indian Penal Code, 1860, the complaint filed making such allegations, has to be investigated and the police have to find out truth and file appropriate report before the Court.
7. The last point that was raised by the learned Counsel for the petitioners is that whether the Tahashildar is authorised to file complaint or report to the police, if any 12 offence is committed under the MMRD Act as per notification No. CVII-186/96/19839 dated 4/2/1993. Of course, this notification empowers the Tahashildar to initiate proceedings against the offenders, who have committed any offence under the MMRD Act. But, in the present petition, complaint is not filed under the MMRD Act. Whether the Tahashildar files any complaint or any ordinary man files any complaint it makes absolutely no difference, anybody can set the criminal law into motion. If the allegations made therein constitute any offence for the purpose of investigation that would be sufficient. If such allegations are there, the police can investigate into the matter and file appropriate report.
8. As per the arguments of the learned Counsel for the petitioners that, the said sand was sold by means of auction for the benefit of the Gram Panchayat. They have not committed any offence as alleged in the complaint. If that being so, the police during the course of investigation finds that offences alleged in the FIR are false, then the police may file 'B' Report to the Court. Even if the police files any charge 13 sheet against the petitioner, the learned Magistrate has to look into the matter and then if any offence is made out, on perusal of the entire charge sheet, then only the learned Magistrate can take the cognizance. Therefore, the report submitted by the police cannot be automatically accepted. It should also pass through the judicial scrutiny. Under the above said circumstances, in my opinion the truth or falsity of the allegations made in the complaint cannot be tested before this Court, by any other means. Therefore, I am of the opinion that the petition is not maintainable.
9. In the latest decision of Hon'ble Supreme Court, reported in (2012) 9 SCC 460 between Amit Kapoor Vs. Ramesh Chander and Another at paragraph 27.13 the Supreme Court has laid down the guidelines that "27.13 Quashing of charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide 14 admissibility and reliability of the documents or records but is an opinion formed prima facie".
10. In view of the above said decision also, in my opinion, at this stage, investigation cannot be quashed. With these observations, the petition stands dismissed.
Sd/-
JUDGE Vmb