Karnataka High Court
Vasudev S/O. Narayan Nayak vs The State Of Karnataka on 9 December, 2021
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED 09TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.P.102179/2021
BETWEEN:
1. VASUDEV S/O NARAYAN NAYAK,
AGE : 44 YEARS, OCC: RETD. GOVT. SERVANT.
R/O HIG-10, D.3 ROAD, NEW KHB COLONY,
HABBUWADA, KARWAR,
DIST: UTTARA KANNADA-581301.
2. SHREEDHAR S/O NARAYAN NAYAK,
AGE : 72 YEARS, OCC: RETD. GOVT.SERVANT,
R/O "VAISHNAVI", 1967F/2, NH.17,
SAIKATTA CROSS, KODIBAG, KARWAR,
DIST: UTTARA KANNADA-581301.
ALSO AT HICHKAD, TQ: ANKOLA,
DIST: UTTARA KANNADA. ... PETITIONERS
(BY SRI PRASHANTH HOSMANI, ADV.)
AND
1. THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BECH-590004.
2. STATE OF KARNATAKA,
BY MANJUNATH S/O SHANIYAR DEVADIGA,
AGE 32 YRS, OCC: GEOLOGIST,
MINES AND GEOLOGY DEPARTMENT,
KARWAR, UTTARA KANNADA-581301. ... RESPONDENTS
(BY SRI PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE CODE, PRAYING THIS COURT
TO QUASH THE ORDER OF COGNIZANCE DATED 22.10.2021 BY THE
CIVIL JUDGE & JMFC COURT, ANKOAL IN PCR NO.325/2021 AND
THE PRIVATE COMPLAINT DATED 22.10.2021 FILED BY 2ND
RESPONDENT PRODUCED AT ANNEXURE-M & K RESPECTIVELY SO
FAR AS PETITIONERS ARE CONCERNED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 21 OF MINES AND MINERALS
(DEVELOPMENT & REGULATION) ACT, 1957 AND RULE 44 OF
KARNATAKA MINOR MINERALS CONCESSION RULES 1994 IN THE
INTEREST OF JUSTICE AND EQUITY.
2
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY THE COURT MADE THE FOLLOWING:
: ORDER :
Though this criminal petition is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
2. petitioners/accused Nos.3 & 4 in PCR No.325/2021 on the file of the JMFC Court at Ankola for the offence punishable under Section 21 of the Mines & Minerals (Development & Regulation) Act, 1957 ("MMDR Act" for short) and Rule 44 of Karnataka Minor Minerals Concession Rules, 1994 ("KMMCR" for short) filed by respondent No.2, are before this Court seeking to quash the criminal proceedings initiated against them.
3. Brief facts of the case are that, respondent No.2, the Geologist, Department of Mines and Geology, Karwar, Uttara Kannada District filed the private complaint in PCR No.325/2021 against accused Nos.1 to 4 for the above said offences, alleging that R.S.No.118/1 totally measuring 6.32.4 acres situated 3 at Belase village of Ankola taluk, U.K.District is jointly owned by accused Nos.1 to 4. Accused Nos.2 to 4 are jointly in possession of 3.14 acres whereas accused Nos.1 was in possession of the remaining 3.14 acres. Accused Nos.1 since 2013, is extracting the laterite stone from the land measuring 3.14 acres which was in his possession and thereby he has committed theft of laterite stones and the mud, without any licence or permit and caused huge loss to the Government. Since complaint was lodged in this regard, the Deputy Director, Department of Mines and Geology, Karwar directed the village accountant, Belase and the Sub- Inspector of Police, Ankola, Junior Engineer, Department of Mines and Geology to hold joint inspection of the land. While holding such joint inspection it was found that no mining activities were undertaken at that time, but in an area measuring 2.26 acres, the laterite stone measuring 28900 Metric Tons was already cut and removed. The waste mud is stored on the spot. Since the land in question is in joint names of accused Nos.1 to 4, the complaint was came to be filed against all the accused jointly for violating 4 Sections 4, 4(1A) of MMDR Act and Rule 3(1) and 42(1) of KMMCR punishable under Section 21 of MMDR Rule 44 of KMMCR.
4. On the basis of this Private Complaint, the Trial Court took cognizance of the offences and directed registration of a criminal case and summoned the accused to appear before the Court. Therefore, accused Nos.3 and 4 are before this Court seeking quashing the criminal proceedings initiated against them.
5. Heard Sri Prashant Hosmani, learned counsel for the petitioners and Sri Praveen K.Uppar, learned High Court Government Pleader for respondents.
6. Learned counsel for the petitioners submitted that, the petitioners being accused Nos.3 and 4 filed as many as eight complaints with Ankola Police complaining that accused No.1 is undertaking illegal mining not only in his land but also illegally encroaching their land comprising in the same survey number. The police instead of investigating into the 5 matter, issued an endorsement that, it is a civil dispute and directed the petitioners to approach the Civil Court. Thereafter, the petitioners have filed the complaint as per Annexure-H with the Department of Mines and Geology. But the same was also not taken into consideration and no action was initiated against accused No.1 who was actually indulged in illegal activity of mining and extraction of laterite stones without permit or licence. Therefore, no other alternative the petitioners filed writ petition in W.P.No.14307/21 before this Court seeking direction in the nature of mandamus, directing respondent No.5 therein who is complainant herein to take necessary action against accused No.1 for the illegal mining and laterite stones. The said writ petition was filed on 20.07.2021 and thereafter, the private complaint was came to be filed against accused Nos.1 to 4. Even though these petitioners are the complainants who alerted the police as well as the Department of Mines and Geology regarding illegal mining of the laterate stones by accused No.1, the complaint was also came to be filed against them without any basis. Initiation of 6 criminal proceedings would amount to abuse of process of the Court. Hence, he prays for allowing this petition.
7. Per contra, learned High Court Government Pleader opposing the submission made by the learned counsel for the petitioners submitted that, the land in question compromising in Sy.No.118 of Belase village, totally measures 6.32.4 acres which was owned by accused Nos.1 to 4 jointly. It is stated that accused Nos.2 to 4 are in joint possession of 3.14 acres of land whereas accused Nos.1 is in possession of 3.14 acres. However, on visiting the spot it was found that the mining of the laterite stone was undertaken in 2.26 acres of land. Therefore, the complainant lodged the complaint against all the joint owners i.e., accused Nos.1 to 4. If the criminal proceedings against these petitioners are to be quashed, that will be a defence for the other accused to contend that the petitioners who are the joint owners are responsible for the commission of the offence. Therefore, it is for the Trial Court to consider as to who, amongst the joint owners 7 committed the offence. Hence, the petition is not maintainable and is liable to be dismissed.
8. Perused the materials on record.
9. In the light of the rival submission made by learned counsel for the parties, the point that would arise for consideration is as follows:
"Whether, the criminal proceedings
initiated against the petitioners in
PCR.No.325/2021 on the file of the Civil Judge and JMFC Court at Ankola for the offence punishable under Section 21 of MMDR Act and Rule 44 of KMMCR is liable to be quashed under Section 482 of Cr.P.C?"
10. My answer to the above points is in the 'affirmative' for the following :
: REASONS :
11. The complainant is the Geologist attached to the Department of Mines and Geology, Karwar, Uttara Kannada District. As per the complaint, accused Nos.1 8 to 4 are the owners of the land in R.S.No.118/1 totally measuring 6.32.4 acres. Out of which, half of the portion is in the possession and enjoyment of accused No.1, whereas the remaining half portion is in the possession and enjoyment of accused No.2 to 4. Out of this in about 2.26 acres of land mining was undertaken and laterite stone was extracted as per the averments made in the complaint. Now the question arises as to who committed the offence as alleged in the complaint.
12. Learned counsel for the petitioner has produced copies of several complaints as per Annexure- F which are addressed to the Station House Officer, Ankola Police Station. In all these complaints, petitioner No.1 made specific allegation that, accused Nos.1 whose name is jointly entered in the record of rights in respect of Sy.No.118 of Belase village along with his son Akash Ganapati is illegally trespassing over the land belonging to petitioner No.1 and extracting the laterite stones and conducting mining activates by using Hitachi, JCB, Tipper Lorry and Tiller. Therefore, he requested the police to register the FIR and to seize 9 the stones and the mud extracted illegally. It is the specific contention of the petitioners, in-spite of filing more than eight such complaints, no action was initiated against accused No.1. But on the other hand, an endorsement as per Annexure-G was issued by the Police stating that the dispute is of civil nature and directed the parties to settle their disputes before the Civil Court.
13. Petitioner No.1 also produce copy of the complaint dated 01.07.2021 as per Annexure-H, which is addressed to the Deputy Director, Department of Mines and Geology, Karwar, wherein similar averments are made, making specific allegations against accused No.1 regarding illegal extraction of laterite stones without any licence or permit. Annexure-H refers to photos, RTC extracts, interim order passed by this Court in W.P.No.84369/2013. It is stated that no action whatsoever was taken on this complaint. It is only thereafter, the petitioners herein filed W.P.No.14307/2021(GM-MMS) before this Court seeking writ in the nature of mandamus directing the 10 respondent No.5 i.e., the Deputy Director of Mines and Geology to consider the complaint filed by petitioner No.1 dated 01.07.2021 i.e., Annexure-H referred to above and to take necessary actions to stop the illegal mining by respondent No.6 i.e., accused No.1, seeking amongst other reliefs.
14. These facts and circumstances narrated above, disclose that the petitioners herein as dutiful citizens brought to the notice of the police and also to the complainant herein about illegal extraction of laterite stone and mining in the land bearing R.S.No.118 of Belase village of which they are also owners over the portion of the property. Admittedly the record of rights stands jointly in the names of accused Nos.1 to 4. As many as eight complaints as per Annexure-F were filed before the jurisdictional police and Annexure-H is the complaint dated 01.07.2021 filed before the Deputy Director, Department of Mines and Geology seeking action for illegal extraction of laterite stone and mining.
11
15. Interestingly no action whatsoever was taken on the above complaints. But only after filing of the writ petition referred to above on 20.07.2021, a private complaint as per Annexure-K was filed on 22.10.2021. This shows the lethargic attitude on the part of the Officers attached to the Department of Mines and Geology. There is absolutely no allegation made against these petitioners in the private complaint. On the other hand a portion of the complaint is extracted as it is from the complaint Annexure-H produced by the petitioners. All these facts and circumstances, makes the position very clear that the petitioners are not the persons who are indulged in illegal mining, but they alerted the police as well as the Department of Mines and Geology regarding illegal mining that was undertaken by accused No.1 and requested for necessary action which fell on deaf ears. Only when the petitioners approached this Court by filing the writ petition, the complainant became alert and filed private complaint against all the persons whose name appear in the record of rights. If at all these petitioners were involved in commission of 12 offence definitely they would not have filed so many complaints either with the police or with the Deputy Director of Mines and Geology as per Annexure-G & H. They would not have filed the writ petition before this Court seeking necessary direction in the nature of mandamus to the Deputy Director of Mines and Geology to take action on Annexure-H.
16. Learned High Court Government Pleader brought to the notice of the Court that it was only petitioner No.1 who filed the complaints as per Annexure-G & H but not petitioner No.2. However, it is seen that petitioner Nos.1 and 2 are brothers and petitioner No.2 is aged 72 years. Learned counsel for the petitioners submits that, since petitioner No.2 is aged 72 years and not in a position move about, it was only petitioner No.1 who took the responsibility of bringing the illegal activities of accused Nos.1 to the notice of the police as well as the Department of Mines and Geology. Under such circumstances, I do not find any merits in the contention taken by the learned High Court Government Pleader.
13
17. Therefore, I am of the opinion that initiation of criminal proceedings against the petitioners is nothing short of abuse of process of the Court and is liable to be quashed. Hence, I answer the above point in the 'affirmative' and according proceed to pass the following.
: ORDER :
The petitioner is hereby allowed.
The order of taking cognizance dated 22.10.2021 by the Civil Judge & JMFC Court, Ankoala and criminal proceedings pending in PCR.No.325/2021 for the offences punishable under Section 21 of MMDR Act, and Rule 44 of KMMCR are hereby quashed.
Sd/-
JUDGE EM