Karnataka High Court
Sri. Basavaraju vs The State Of Karnataka on 6 February, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
Crl.P. No.9984 OF 2017 C/w Crl.P. Nos.9/2018,
262/2018, 638/2018 & 792/2018
IN CRL.P. NO.9984 OF 2017
BETWEEN:
1. SRI. BASAVARAJU
S/O BASAVAIAH
25 YEARS
KA-06.C-8056 LORRY DRIVER
BYRANAYAKANAHALLI-VILLAGE
HUTRIDURGA HOBLI-572126
KUNIGAL TQ
TUMKUR DISTRICT
2. SRI LOKESH
S/O CHIKKAIAH
24 YEARS
KA-06.C-8056 LORRY OWNER
SUGGANAHALLI VILLAGE
HULIYURUDURGA-HOBLI-572123
KUNIGAL TQ, TUMKURU DIST
3. SRI MAHALINGAIAH
S/O KARICHITTAIAH
35 YEARS
KA-52.A-265 LORRY DRIVER
GOLLARAHATTI VILLAGE
AMRUTUR HOBLI-572111
KUNIGAL TQ-TUMKUR DIST
4. SRI NAGESHA B R
S/O RAMANNA
2
38 YEARS
KA-52.A-265 & KA-06.D-580
LORRY OWNER
TOREBOMMANAHALLI VILLAGE
HULIYURUDURGA HOBLI-572123
KUNIGAL TALUK
TUMKURU DISTRICT
5. SRI MANJUNATHA @ MANJUNAYAK
S/O LATE CHANDRANAYAK
28 YEARS
KA-06.D-580 LORRY DRIVER
BAVIKERE
NELAMANGALA-562123
BENGALURU- DIST
.....PETITIONERS
(BY SRI. JAYANNA G.R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY KUNIGAL POLICE STATION
KUNIGAL, TUMKURU DIST-572130
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMKURU IN SPL.C.NO.66/2017,
FILED BY THE KUNIGAL POLICE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 379 OF IPC AND UNDER
RULE 44(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE AND UNDER SECTION 21(1) OF MINES
AND MINERALS (DEVELOPMENT OF REGULATION) ACT
AND UNDER SECTION 5, 181, 192(A) OF INDIAN MOTOR
VEHICLE ACT AND TO STALL THE ABUSE OF PROCESS OF
COURT.
IN CRL.P. NO.9 OF 2018
BETWEEN:
SRI.RAMALINGAIAH @ PATAKI,
3
S/O RAMAIAH,
27 YEARS,
R/AT YADAVANI-VILLAGE,
AMRUTUR HOBLI,
KUNIGAL TALUK,
TUMAKURU - 572111.
.....PETITIONER
(BY SRI. JAYANNA G.R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HULIYURDURGA POLICE STATION
KUNIGAL, TUMKURU DIST-572123
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMKURU IN SPL.C.NO.375/2016
FILED BY THE HULIYURDURGA POLICE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 379, 188 OF IPC
AND UNDER RULE 41(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE AND UNDER SECTION 21(1) OF MINES
AND MINERALS (DEVELOPMENT OF REGULATION) ACT
AND UNDER SECTION 3 AND 181 OF INDIAN MOTOR
VEHICLE ACT AND TO STALL THE ABUSE OF PROCESS OF
COURT.
IN CRL.P. NO.262 OF 2018
BETWEEN:
SRI.CHIKKARAJU
S/O LATE MULABAGILAIAH,
38 YEARS,
R/AT THOREBOMMANAHALLI VILLAGE,
HULIYURUDURGA HOBLI,
KUNIGAL TALUK,
TUMAKURU DISTRICT - 572123.
.....PETITIONER
(BY SRI. JAYANNA G.R., ADVOCATE)
4
AND:
THE STATE OF KARNATAKA
BY HULIYURDURGA POLICE STATION
HULIYURUDURGA-572123
KUNIGAL TALUK, TUMKURU DIST
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMKURU IN SPL.C.NO.526/2017
FILED BY THE HULIYURDURGA POLICE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 379, 188 OF IPC
AND UNDER RULE 44(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE AND UNDER SECTION 4(1), 4(1A) AND
21(1) OF MINES AND MINERALS (DEVELOPMENT OF
REGULATION) ACT AND UNDER SECTION 2(A)OF THE
PREVENTION OF DESTRUCTION AND LOSS OF PROPERTY
ACT AND TO STALL THE ABUSE OF PROCESS OF COURT.
IN CRL.P. NO.638 OF 2018
BETWEEN:
1. SRI PRAKASH
S/O SIDDAIAH,
44 YEARS,
LAND OWNER KAGGANAHALLI VILLAGE,
AMRUTURU HOBLI-572 111
KUNIGAL TQ, TUMAKURU DIST.
2. SRI.BOREEGOWDA
S/O LATE SIDDAIAH,
35 YEARS,
KA-06.C-8935 LORRY DRIVER
KAGGANAHALLI VILLAGE,
AMRUTURU HOBLI-572 111
KUNIGAL TQ, TUMAKURU DIST.
3. SRI.RAJEENDRA
S/O LATE MALEGOWDA,
5
42 YEARS,
KA-06.C-8915, LORRY OWNER
UNGARA VILLAGE,
AMRUTURU HOBLI-572 111
KUNIGAL TQ, TUMAKURU DIST.
4. SRI.KRISHNAMURTHY
S/O LATE NANJAIAH,
40 YEARS,
KA-52, 5148, LORRY OWNER & DRIVER
YADAVANI VILLAGE,
AMRUTURU HOBLI-572111
KUNIGAL TQ, TUMAKURU DIST
......PETITIONERS
(BY SRI. JAYANNA G.R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HULIYURDURGA POLICE STATION
HULIYURDURGA-572123
KUNIGAL TQ, TUMKURU DIST
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMKURU IN SPL.C.NO.440/2017,
FILED BY THE HULIYURDURGA POLICE FOR THE
OFFENCE PUNISHABLE UNDER SECTION 379 OF IPC AND
UNDER RULE 41(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE AND UNDER SECTION 21(1) OF MINES
AND MINERALS (DEVELOPMENT OF REGULATION) ACT
AND UNDER SECTION 3, 181 OF INDIAN MOTOR VEHICLE
ACT AND TO STALL THE ABUSE OF PROCESS OF COURT.
IN CRL.P. NO.792 OF 2018
BETWEEN:
1. SRI. UMESHA H
S/O GUNDAPPA,
6
28 YEARS,
KA-06,C-8445, LORRY DRIVER
10TH CROSS, C/O SHIVALINGAPPA
SHAKAMBARINAGARA, 1ST PHASE,
J.P.NAGARA,
BENGALURU-560 071
2. SRI GUNDAPPA
S/O LATE KALASAIAH
56 YEARS,
KA-06, C-8445,
LORRY OWNER
KAGGANAHALLI VILLAGE,
AMRUTHUR HOBLI-572 111
KUNIGAL-TQ,
TUMAKURU-DIST
3. SRI BOREGOWDA
S/O LATE SIDDAIAH,
30 YEARS,
KA-06, C-8935, LORRY DRIVER,
NO.67, 10TH MAIN ROAD,
10TH CROSS, 1ST PHASE,
SHAKAMBARINAGARA,
J.P NAGARA,
BENGALURU-560 071
4. SRI RAJENDRA M.,
S/O LATE MALLIGOWDA,
40 YEARS,
UNGRA-VILLAGE,
AMRUTURU-HOBLI-572 111
KUNIGAL-TQ,
TUMAKURU -DIST
.....PETITIONERS
(BY SRI.JAYANNA G.R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY KUNIGAL POLICE STATION
KUNIGAL, TUMKURU DIST-572130
...RESPONDENT
(BY SRI.NASRULLA KHAN-HCGP)
7
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., TO QUASH THE ENTIRE PROCEEDINGS
PENDING BEFORE THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, TUMKURU IN SPL.C.NO.58/2017,
FILED BY THE KUNIGAL POLICE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 379 OF IPC AND UNDER
RULE 44(1) OF KARNATAKA MINOR MINERAL
CONCESSION RULE AND UNDER SECTION 21(1) OF MINES
AND MINERALS (DEVELOPMENT OF REGULATION) ACT
AND UNDER SECTION 5, 181, 192(A) OF INDIAN MOTOR
VEHICLE ACT AND TO STALL THE ABUSE OF PROCESS OF
COURT.
THESE PETITIONS COMING ON FOR 'ORDERS' THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and the learned HCGP.
2. In all the above said petitions, the respective petitioners approached this Court seeking quashing of the proceedings pending before the Principal District and Sessions Judge, Tumakuru in Spl.C.Nos.66/2017, 375/2016, 526/2017, 440/2017 and 58/2017 respectively for the offences punishable under the provision of Mines and Minerals (Development of Regulation) Act, 1957 (for short, 'MMRD', for the sake of convenience) and Karnataka Minor Mineral Concession 8 Rule, 1994 (for short, 'KMMC Rules', for the sake of convenience) and also investigating under the provision of Sec. 379 of Indian Penal Code (for short, 'IPC' for the sake of convenience) and under Indian Motor Vehicle Act, 1988 (for short 'MVA' for the sake of convenience) as noted in the cause title.
3. The learned counsel for the petitioners strenuously contends that though learned Principal District and Sessions Judge, Tumakuru has taken cognizance of the offences after committal of the proceedings by the Jurisdiction Magistrate but, it is clear that Sec. 22 of MMRD Act, the Magistrate himself has no jurisdiction to take cognizance and commit the case to the Special Court for the offences punishable under the MMRD and KMMC Rules.
4. In view of the specific bar under Section 22 of MMRD Act, in the above noted cases the police without jurisdiction have investigated the matter for the offences punishable under MMRD and KMMC Rules and submitted the charge sheet under Section 173 of 9 Cr.P.C. On the basis of the final report submitted under Sec. 173 of Cr.P.C., the Magistrate also got no jurisdiction to take cognizance to either proceed with the mater himself or to commit the case to the special Court. Therefore, entire proceedings either before the Magistrate or before the Special Court so far as it relates to the offences under MMRD and KMMC Rules is vitiated by serious error and illegality committed by Jurisdictional Police, Magistrate and the Special Court (Sessions Court). Under the above said circumstances, it is pleaded for quashing of the proceedings before Special Court as well as the committal order by the Magistrate so far as it relates to the offences punishable under the MMRD and KMMC Rules.
5. On careful perusal of above said submissions as well as records in the above said cases it is clear that the police have submitted charge sheet under Sec. 173 of Cr.P.C. for the offence punishable under the MMRD and KMMC Rule apart from invoking 10 Sec. 379 of IPC and also under the provisions of IMV Act.
6. Section 22 of the MMRD Act says in the following manner:
Cognizance of offences - No Court shall take cognizance of any offence under this Act or any Rules made there under except upon complaint in writing made by a person authorized in this behalf by the Central Government or State Government.
7. Above said section makes abundantly clear that, offences under the MMRD and KMMC Rule thereunder can not be investigated by the police and they cannot file any report under Section 173 of Cr.P.C., because Section authorizes only authorized person by the State Government or Central Government to file private complaint before the jurisdictional Court. If any private complaint is filed by the Authorized Officer, then only Magistrate can take cognizance for the offences under MMRD and KMMC Rules and thereafter, he can commit the case to the Special Court for trial. 11
8. In this particular case, there is no private complaint filed by any Authorized Officer before the jurisdictional Magistrate either to take cognizance or for committal of the case, with reference to the offences under the MMRD and KMMC Rules.
9. It is worth to mention here a decision reported in AIR 2015 Supreme Court 75 between State of NCT of Delhi with Jaysukh Bavanji Shingalia Vs. State of Gujarat and Another with Malabhai Shalabhai Rabari and Ors, Vs. State of Gujarat and Ors with Kalubhai Dulabhai Khachar Vs. State of Gujarat and Anr. wherein it is held that :
"There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and 12 violation of Sec.4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Sec.22 of the Act against prosecution of a person except on a complaint made by the Officer is attracted only when such person sought to be prosecuted for contravention of Sec.4 of the Act and not for any act or omission which constitute an offence under Penal Code. However, there may be situation where a person without any lease and licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code. Merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint can not 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 Sec.173 of Cr.P.C. before a Magistrate having jurisdiction for the 13 purpose of taking cognizance as provided in S.190(1)(d) of the Criminal P.C. Therefore in the light of relevant provisions of the MMDR Act vis-à-vis the Code of Criminal Procedure and the Penal Code, the ingredients constituting the offences 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 Sec.378 IPC, 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. "
10. In view of the above said decision, it is clear that the police can request the Magistrate to proceed with the case against the petitioners for the offences punishable under IPC and IMV Act. But the Magistrate has no jurisdiction either to take cognizance and proceed with the case or commit the case to the Special Court (Sessions Court). Therefore, to that extent, the proceedings requires to be quashed.
14
11. In view of the fact and circumstances of the case, the learned Sessions Judge has to transmit all the cases to the Magistrate concerned/Jurisdictional Court for the purpose of passing an appropriate order to proceed with regard to the offences punishable under IPC or IMV Act. Hence following:
ORDER The Crl.P.No.9984/2017 connected with Crl.P. Nos.9/2018, 262/2018, 638/2018 & 792/2018 are partly allowed.
The proceedings before the learned District and Sessions Judge(Special Judge), Tumakuru in Spl.C.Nos.66/2017 375/2016, 526/2017, 440/2017 and 58/2017 respectively are hereby quashed.
However, so far as offences under the IPC and IMV Act are concerned the learned Sessions Judge has to transfer the said cases to the jurisdictional Magistrate to proceed with the offences 15 under IPC and IMV, in accordance with Law.
With these observations petitions are disposed off.
Sd/-
JUDGE JS