Karnataka High Court
Prakash Jain S/O. Mangilal Jain vs The State Of Karnataka on 14 February, 2018
:1:
THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL REVISION PETITION No.2234/2010
BETWEEN:
1. PRAKASH JAIN S/O; MANGILAL JAIN,
AGED ABOUT: 25 YEARS,
OCC: BUSINESS, JALI ONI,
RESIDING AT HOSPET.
BELLARY DISTRICT.
2. NIRMAL JAIN S/O: G.B.JAIN,
AGED ABOUT: 25 YEARS,
OCC: BUSINESS, M.J.NAGAR,
RESIDING AT HOSPET.
3. MANOJ JAIN S/O: BHAVARLAL JAIN,
AGED ABOUT: 36 YEARS,
RESIDING AT M.J.NAGAR,
6TH CROSS, HOSPET.
BELLARY DISTRICT.
... PETITIONERS
(BY SRI. GODE NAGARAJ, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY HOSPET RURAL POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
DHARWAD.
... RESPONDENT
(BY SRI. PRAVEEN K.UPPAR, HCGP)
:2:
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C., SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE
FAST TRACK COURT-III, HOSPET IN CRL.A.NO.100/2008,
DATED 11.03.2010 AND TRIAL COURT PASSED BY THE
PRINCIPAL CIVIL JUDGE (JR.DN) & JMFC, HOSPET IN
C.C.NO.1289/2006, DATED 04.06.2008.
THIS PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is directed against the judgment convicting the accused and order of sentence passed against him by the learned Presiding Officer, Fast Track Court, Sirsi in Crl.A.No.100/2008, dated 11.03.2010 thereby confirming the judgment and order on sentencing dated 04.06.2008 in C.C.No.1289/2006 on the file of the Prl. Civil Judge (Jr.Dn) & JMFC, Hospet, under Section 248(2) of Cr.P.C., for the offence punishable under Sections 4(1)(1A) and 21(1) of M.M.D.R. Act r/w Section 379 of IPC.
2. For the purpose of convenience, the parties are referred to as per their rankings before the trial Court.
:3:
3. On 18.11.2004 at about 2.30 p.m., Geologist of Mines and Geology Department conducted joint raid along with the officials of Police Department, Revenue Department and Environmental Department. Storage of ore in the plot of Mohiddin Sab bearing Sy.No.113/C who had handed-over the said plot to accused Nos.1 to 3 on lease. During the said raid, the authorities discovered 5000 metric tonnes of iron that was illegally stored by the accused persons. It was neither with permission from the government or authority or procured from valid custodian. They did give satisfactory explanation for possessing the said gratuity of iron ore. She came to he registered against the accused on the complaint of state authority.
4. The prosecution in order to establish its case, examined as many as 7 witnesses as PWs.1 to 7 and got marked 4 documents as Exs.P1 to P4 as under. The statement of accused were examined under Section 313 of Criminal Procedure Code.
:4:
5. The defence of the accused is one of total denial. Defence evidence nil.
6. After the examination of the oral and documentary evidence on record, the learned trial Judge has come to the conclusion that the prosecution has established the case against the accused beyond all reasonable doubt.
7. The learned trial Judge convicted the accused for the aforesaid offences and sentenced them to pay fine of Rs.10,000/- each for the offence punishable under Sections 4(1)(1A) and 21(1) of M.M.D.R. Act read with Section 34 of IPC, in default to pay fine, to undergo simple imprisonment for six months.
8. The trial Judge has found that the raid/inspection was a joint operation by three agencies as stated above i.e. by Geologist of Mines and Geology Department, Police Department, Revenue Department and Environmental Department and there it was found that the iron ore was stored to the extent of 5000 M.T. :5:
9. Learned counsel for the petitioners-accused would submit that there was no illegal holding of iron ore and the accused had acquired the ore was not stolen or illegally extracted and they validly purchased the iron ore in question.
He further submits that the royalty was paid by the accused for extracting the iron ore or any items in extracting the industry will have a definite and specific procedure. Thus, the claim of the accused even before this Court is that there was a proper source for getting the iron ore either through extracting from his land in Sy.No.113/C or acquiring from a valid source. Secondly, the learned counsel claims that the very institution of the case is not maintainable as it should have been filed before the proper Court.
He stresses on the aspect of cognizance, he wanted to drive a point that by operation of law the cognizance taken by the learned JMFC becomes redundant by virtue of the fact that it was not :6: maintainable and could not have been tried before the trial Court.
He further submits that the acquisition of iron ore was through a legitimate and genuine procedure. It was submitted that he had obtained permission and paid royalty. At the same time, it is necessary to note that the Special Court will be designated for trying certain offences. In this case, the matter was tried by the learned JMFC and not by the Special Judge.
10. In support of his contention, the learned counsel furnished the following two citations passed by this Court in Criminal Petition No.10916/2011 a/w Misc.Crl.No.16265/2011, wherein His Lordship has held as under:
"that the respondent could straight away approach the jurisdictional police in respect of an offence punishable under Section 4(1)(1a) of the M.M.R.D. Act, is no longer res integra."
11. However, his Lordship did not accept the relaxation and in that case the learned counsel :7: submitted that notwithstanding the invoking of Section 406 of IPC, the rigor of the law cannot be overcome by recourse to such a measure and accordingly seeks that the proceedings be set at naught.
12. To further fortify the view, he relied on the order passed in Criminal Petition No.7070/2009 dated 09.04.2010 and submitted that in that case, this Court came to conclusion that the complaint for the offences under the provision of M.M.D.R. Act, requires to be filed with the special Court. Thus, he seeks to set aside the judgment and order passed by the Fast Track Court-III, Hospet.
13. Section 379 of IPC provides for theft. The extracting of iron ore by taking unfair advantage of accumulation of resources in the form of iron ore and when it was raided and the accused did not give satisfactory answer for possessing such valuable iron ore.
:8:
14. The owner or the hoarder of the iron ore is invariably come and those persons if were granted lease, would have permission to extract the iron ore. In this connection, the oral evidence of PWs.1 to 3, which makes loud and clear and that iron ore was stored in the land of the accused have not denied the ownership over the land and possession of the Iron ore. However, the documents regarding the purchase of 5000 M.T. iron ore was not produced. However, PW.1 is Assistant Environmental Officer, has not been cross-examined.
15. The case of the prosecution is that the iron ore was stored illegally or without license or permission by the accused persons. Further it is also seen that iron ore is a product wherein the entitlement to possession would only of two types; (1) After extracting the same from the land or (2) purchasing the iron ore from a person who is in possession of the property through a legitimate procedure.
:9:
16. Thus, the point which the learned counsel for the petitioners would submit that the texture and fabric of the offences that are triable by the Sessions Court and the other Courts are excluded. However, it is necessary to make a mention that the impact of the trial of a case by the learned JMFC, whose order is appealable to the District Court.
17. However, there is no bar under special statute in the instant case to keep the Court away from taking cognizance and adjudicating the offences punishable under the provision of M.M.D.R Act. The case is instituted for having committed the offence under Section 4(1) (1A), 21 (1) of the said Act along with 379 of IPC.
18. In the instant case, it is not M.M.D.R. Act alone in respect of which the cognizance was taken by the trial Court but also includes the offence punishable under Section 379 of IPC. Thus, the legal proceedings go in an unique manner.
: 10 :
19. I have perused the decision rendered by the Hon'ble Supreme Court in the case of State (NCT of Delhi Vs Sanjay and other connected matter reported in (2014) 9 SCC 772, wherein it is held at head note as under;
A. Mines and Minerals (Development and Regulation) Act, 1957 - Sections 21, 22 and 4(1-A) - Illegal mining of sand from riverbeds - Exercise of power by police and Magistrate vis-à-vis bar under Section 22, MMDR Act when no complaint has been lodged by an officer authorized under MMDR Act - Extent of - Under such circumstances, police, held, is merely barred from investigating an offence under Section 4(1-A) r/w Section 21(1), MMDR Act, and Magistrate is merely barred from taking cognizance of offence under Section 4(1-A) r/w Section 21(1), MMDR Act - However, mining of sand from riverbed without licence or permit is also an offence of theft of mineral under Section 378 r/w Section 379 of IPC as natural resources belong to the public and State being its trustee - Thus, : 11 : police is empowered and duty-bound (under Section 149 to 152 and 154 of Cr.P.C) to lodge an FIR under IPC and Cr.P.C., investigate it and file charge-sheet irrespective of the procedures under MMDR Act (even if police suo motu registers the FIR as in one of the present cases and even if complaint is not filed by person authorized under MMDR Act)
20. Thus, the police are empowered rather, duty bound and have powers to act under Section 149 to 152 and 154 Cr.P.C., to lodge the FIR under IPC. There are certain special statutes in respect of offences which are triable by the Special Court viz., Prevention of Atrocities Act, Protection of Children From Sexual Offences Act, Narcotic Drugs and Psychotropic Substances Act, and certain other acts, wherein the Magistrate to try the offences is exclusively to Special Court and it cannot be tried by the non Special Court. Even certain offences relating to Section 494 of IPC, it is non cognizable that provides for the offence of bigamy. Complainant is : 12 : husband or authorized person for prosecuting the case, in which event, the police did not have a right to file FIR by themselves.
21. On observing the proceedings before the trial Court, First Appellate Court and this Court, the point, substance that is loud and clear is that the possession of the Iron ore is not disputed but they claim that they are in possession of the subject land premises where the said quantity of 5000 M.T. was stored. But miserably fail to state the source of acquiring such quantity and they stop by claiming the license but fail to produce valid permit or authorization or any reliable documents. Thus, the submission made by the learned counsel for the petitioners cannot be accepted.
22. In principle as the non-special Court which in the instant case, it makes loud and clear that whether the offence punishable under the Special Act is in combination of the other offences. The jurisdiction to : 13 : try those cases are not excluded from the ordinary courts.
The matter involved and the admitted facts:
(1) In relation to possessing of iron ore of 5000 metric tonnes for trading for profit;
(2) It is wholly, the property of the State, natural resources;
(3) Extraction of the same, requires permission of various legal authorities ;
(4) Payment of royalty to the State.
None of the requirements are answered, the result is that there are offenders.
23. The amount or explanation given by the accused regarding the royalty, legally acquired 5000 M.T. of iron ore is not accepted.
24. Learned counsel for the petitioners would further submit that as the appeal is not preferred by the : 14 : Government, the accused are not liable for imprisonment.
25. In the context and circumstances of the case, it is to be seen that after having given opportunity to submit on behalf of petitioners regarding the liability of the petitioners to undergo sentence of imprisonment as contemplated under MMRD Act for the offence punishable under Sections 248(2) of Cr.P.C., for the offence punishable under Sections 4(1) (1A) and 21(1) of M.M.D.R. Act r/w Section 379 of IPC, learned counsel for the petitioners would submit that once the State did not challenge the order of the trial Court and first appellate Court, the sentence cannot be enhanced.
26. It is made clear that in such a case, the petitioners have to be heard asking to show cause or opportunity has to be given against any alternative in the form of enhancement before the Court having sentenced the petitioners extending up to 5 years. The offence for which the accused are convicted are the : 15 : offence punishable under Sections 4(1) (1A) and 21(1) of M.M.D.R. Act read with Section 379 and 34 of IPC. But it is surprising why the learned FTC Judge while adjudicating the matter has lost the sight and sentenced the accused with only fine. The learned counsel for petitioners was informed that the error in sentencing in the circumstance is a colorable one. However he was given full opportunity to submit on the same.
27. The fact that the appellate Court while passing the judgment confirming the order of the trial Court, effected the same mistake. Thus, one mistake in respect of point of law committed by the trial Court is going unnoticed by the error committed by First Appellate Court. "In the circumstances, apart from the fine that is already been sentenced to the accused, it is hereby sentenced to undergo rigorous imprisonment for three months for the offence punishable under Section 379 of IPC and six months for the offence punishable under Sections 4(1)(1A) and 21(1) of M.M.D.R. Act. : 16 : Both the sentence shall run concurrently". (emphasis supplied by me).
28. The sentencing of fine or imprisonment is invariable in proportion to the offence committed by the accused and it is not an absolute rule that the maximum punishment prescribed has to be ordered. However where a statue prescribes minimum punishment whether fine or imprisonment, the same has to be adhered in principle and in an appeal an error in this connection may be rectified.
29. The learned counsel for petitioners was given sufficient time to submit on Section 379 IPC, insofar as rectification of the error in sentencing is concerned. It does not cause prejudice to the accused ipso facto.
30. Accordingly, the criminal revision petition is dismissed.
Send a copy of this order to the Court of Addl. Sessions Judge, Hospet and to the Court of Prl. Civil : 17 : Judge (Jr.Dn.) & J.M.F.C., Hospet for further action in the matter.
Sd/-
JUDGE Msr/Naa