Karnataka High Court
Saiyed Jiyaulla vs State Of Karnataka on 28 June, 2018
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRL.P. NO.4250/2018
BETWEEN
1. SAIYED JIYAULLA
S/O LATE BHAKSHI SAB
AGED ABOUT 38 YEARS
DRIVER OF THE LORRY BEARING
NO. GA-09-U-4253
R/O SASVEHALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DIST 577 601
2. VIJAY
S/O NAGAPPA
AGED ABOUT 21 YEARS,
DRIVER OF THE LORRY BEARING
NO. G-09-U-7277
R/O K BEVINAHALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DIST 577 601
3. THAHIR
S/O SYED AHAMED
AGED ABOUT 24 YEARS,
DRIVER OF THE LORRY BEARING
NO. KA-51-AB-238
R/O. 2ND MAIN, 2ND CROSS
VINOBANAGARA
DAVANAGERE DIST 577 001
4. BHARAT SAVANTH
S/O SADASHIVA SAVANTH
AGED ABOUT 45 YEARS,
OWNER OF LORRY BEARING
2
REG. NO. GA09/U-4253
R/O SANGAVEL, GOA CITY 403 108
5. MUBARAK BASHA
S/O KHADER BASHA
AGED ABOUT 26 YEARS
OWNER OF TATA TIPPER
BEARING REG. NO. KA-51-AB-0238
R/O 1ST MAIN, 1ST CROSS
RING ROAD, VINAYAKA NAGARA
DAVANAGERE 577 001
6. ABDUL WAJAEED
S/O KHADER BASHA
AGED ABOUT 55 YEARS,
OWNER OF TATA TIPPER
BEARING REG NO. GA-09 U-7277
R/O. VINAYAKA NAGARA
DAVANAGERE 577 001 ... PETITIONERS
(BY SRI. JAYA PRAKASH K. N., ADV.)
AND
1. STATE OF KARNATAKA
BY RURAL POLICE STATION
HARIHARA, DAVANAGERE DIST
REP. BY SPP, HIGH COURT
BUILDING, BENGALURU - 560 001
2. PRAKASH D
S/O DEVENDRAPPA
AGED ABOUT 42 YEARS,
REVENUE INSPECTOR
HARIHARA CIRCLE
HARIHARA TALUK OFFICE
HARIHARA, DAVANAGERE 577 601
... RESPONDENTS
(BY SRI. S. RACHAIAH, HCGP FOR R1 AND R2)
3
THIS CRL.P FILED U/S.482 CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS INCLUDING THE
COMPLAINT AND FIR DATED 07.04.2018 IN CRIME
NO.63/2018 FOR THE OFFENCE P/U/S 379 OF IPC R/W
SECTION 21(1) OF THE MMDR ACT, REGISTERED BY
HARIHARA RURAL POLICE STATION, DAVANAGERE
DISTRICT, WHICH IS PENDING ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (JR.DN) AND JMFC, HARIHARA,
DAVANAGERE DISTRICT.
THIS CRL.P COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The present petition is filed seeking quashing of the registration of a case in Crime No. 63/2018 under Section 154 of Cr.P.C. by the 1st respondent-Police for the offence punishable under section 379 of IPC r/w. Section 21(1) of Mines and Minerals (Development and Regulation) Act, 1957.
2. I have heard the arguments of the learned counsel for the petitioner and as well as the learned HCGP. Perused the records.
3. The factual aspects of the case reveal that on the FIR lodged by one Mr. Praksh D., son of Devendrappa, the Revenue Inspector, Kurubarahalli 4 Village, Harihar Taluk, Davanagere, making allegations that the accused persons were involved in committing theft of sand from Tungabhadra River by using their Tipper lorries etc. On the basis of such information, the Police have registered a case in Crime No. 63/2018 exercising powers under Section 154 of Cr.P.C. and they are investigating the matter.
4. Learned counsel submitted that, the registration of the case under Section 154 of Cr.P.C. itself is not contemplated and the Police have no jurisdiction to register any case under Section 154 Cr.P.C. and consequently investigate the matter. Therefore, the said FIR and all further proceedings in connection with that case are required to be quashed.
5. This court had an occasion to deal with the above said aspects in detail in a case reported in ILR 2018 KAR 1497 between Sri Vivek and Another Vs. The State of Karnataka by Kunigal Police Station, Tumkur District and Another.
5HELD,-
a) In order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules thereunder. (Para 17)
b) The Special Court constituted under the MMDR Act, has no jurisdiction to directly take cognizance of the offence under the MMDR Act and KMMC Rules, even along with any other penal offences unless the case is committed by the jurisdictional Magistrate. It I s made clear that the Special Court has no jurisdiction to receive a final report from the Police under Section 173 of Cr.P.C., or to receive any private complaint under the MMDR Act, directly from the authorized officer and take cognizance of the offences either under the MMDR Act or any other penal laws. If any such complaint is erroneously received and pending, the Special Court has to follow the procedure as contemplated under Section 201 of Cr.P.C., and return the complaint for presentation to the proper Court with an endorsement to that effect. Likewise if any Police report is received the same has to be transferred to the jurisdictional Magistrate invoking the provisions 6 under Section 228(1)(a) of Cr.P.C., for appropriate action. (Para 37(1))
c) The Police cannot file a final report under Section 173 of Cr.P.C., for the offences under the MMDR Act and KMMC Rules either to the jurisdictional JMFC Court or to the Special Court. However, they can file the report for the offences under the Indian Penal Code or any other penal law for the time being in force before the jurisdictional Magistrate.
(Para 37(2))
d) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act and KMMC Rules on the basis of any police report under Section 173 of Cr.P.C. However, if any penal provisions under the IPC or any other penal laws are available in the final report of the Police, if there is no other legal bar; the Magistrate can take cognizance of such offences under the IPC or other penal laws for which he is empowered, except the offences under MMDR Act and KMMC Rules.
(Para 37(3))
e) A private complaint is only contemplated under the MMDR Act and KMMC Rules and thus it has to be filed under Section 22 of the Act by the competent authorized officer under the MMDR 7 Act and KMMC Rules. Even if other offences under any other penal laws, are also included along with offences under MMDR Act and Rules, the jurisdictional Magistrate, has to take cognizance of the offences under MMDR Act and KMMC Rules only on the basis of the private complaint even though other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.P.C., the Magistrate has to commit the entire case to the Special Court for trial.
(Para 37(4))
f) The Special Court gets jurisdiction to try the offences under the MMDR Act and KMMC Rules thereunder including any other offences under any other penal laws for the time being in force only after the case is committed to it for trial by the jurisdictional Magistrate.
(Para 37(5))
6. In view of the above guildelines laid down by this court, it is clear that the Police would not get any jurisdiction to register a case under Section 154 Cr.P.C. and investigate the matter, and to file any report under Section 173 of Cr.P.C., nor the courts have jurisdiction to receive such reports under Section 173 Cr.P.C. and to take cognizance for the offences 8 punishable under Section MMDR Act, in view of the specific bar under Section 22 of MMDR Act, which contemplates a private complaint by the competent officer notified by the State Government or the Central Government. Therefore, in this particular case, registration of the case under the provisions of MMDR Act is bad in law. However, in the above said decision itself, it is made clear that the Police have got power and jurisdiction to investigate the offence under Section 379 of IPC. Therefore, to that extent, in my opinion, the registration of the FIR and investigation by the Police are valid. Therefore, except that, all investigation pertaining to Section 21(1) of MMDR Act is required to be quashed giving liberty to the competent officers to file a complaint under Section 22 of MMDR Act, before the competent Court. In the above circumstances of the case, the following order is passed:
ORDER The petition is partly allowed. Consequently, registration of case in Crime No. 63/2018 by Harihara Rural Police and all further investigation sofaras the offence under 9 Section 21(1) of MMDR Act concerned, is hereby quashed. However, the Police are at liberty to proceed to investigate the offence under Section 379 of IPC and file appropriate report to the jurisdictional court.
Sd/-
JUDGE KGR*