Gujarat High Court
Jayeshbhai Jesingbhai Barad vs State Of Gujarat on 25 September, 2024
NEUTRAL CITATION
R/CR.MA/16710/2021 ORDER DATED: 25/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16710 of 2021
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JAYESHBHAI JESINGBHAI BARAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 25/09/2024
ORAL ORDER
1. By way of this quashing application under Section 482 of the Criminal Procedure Code, the writ applicant has prayed this Court to quash the FIR being I-C.R. No.111 of 2016 filed before the Kodinar Police Station, Gir-Somnath for the offence punishable under Section 379 of the Indian Penal Code, Sections 3, 5, 6, 8 and 13 of the Gujarat Prevention of Illegal Mining Transport and Storage Act, 2005 and Sections 4(1)(a) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957.
2. Brief case of the prosecution thus can be narrated as under:
2.1. Free translation of the FIR is produced as under:Page 1 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024
NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined "I, the undersigned, Shri Ravi K. Mistri, occupation: Service, mobile no. 9712320364, have been performing duty as a Geology Assistant with the Department of Geology and Mines and Minerals at Gir Somnath for one year.
As a Prosecution Witness in the present case, the facts are such that, the team of this office, acting on a complaint of illegal mining by the members of Ghantvad Gram Panchayat on 02/09/2016, inspections were carried out, keeping aside the members of Ghantvad Gram Panchayat, at village Ghantvad, Taluka Kodinar, District Gir Somnath, where four different excavations for mining of limestone and cutting it into building blocks were found to be illegal. The details of which are as under:
(1) During the inspection of Pit No.1 (GPS location: 20 degree 57'51.33"N, 70 degree 45'40.53"E) fresh mining of limestone to cut it into building blocks was found. On inquiring with the Pancha Witnesses, they stated the location as Survey No. 305. On measuring the extracted minerals in presence of the Pancha Witnesses, about 617 Mt. of minerals were found to have been extracted illegally. On being asked about the person who mined the quarry, the Pancha Witnesses stated that, Jayeshbhai Barad, residing at village Devali, Taluka Kodinar has been quarrying for one month.
(2) During the inspection of Pit No.2 (GPS location: 20 degree 57'58.08"N, 70 degree 45'41.38"E) fresh mining of limestone to cut it into building blocks was found. On inquiring with the Pancha Witnesses, they stated the location as Survey No. 305. On measuring the extracted minerals in presence of the Pancha Witnesses, about 1078 Mt. of fresh minerals were found to have been extracted illegally. On being asked about the person who mined the quarry, the Pancha Witnesses stated that, Shri Parbat Viram Dasa has been quarrying for two month. (3) During the inspection of Pit No.3 (GPS location: 20 degree 58'0.58.89"N, 70 degree 45'43.34"E) fresh mining of limestone to cut it into building blocks was found. On inquiring with the Pancha Witnesses, they stated the location as Survey No. 305. On measuring the extracted minerals in presence of the Pancha Witnesses, about 2170 Mt. of fresh minerals were found to have Page 2 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024 NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined been extracted illegally. On being asked about the person who mined the quarry, the Pancha Witnesses stated that, Shri Bhimabhai Vallabhbhai Khunt, residing at Jamvala, Taluka Girgadhda and Shri Haribhai Navghanbhai Jadav, residing at Kodinar have been quarrying for four month.
(4) During the inspection of Pit No.4 (GPS location: 20 degree 56'5.14"N, 70 degree 44'54.41" E) fresh mining of limestone to cut it into building blocks was found. On inquiring with the Pancha Witnesses, they stated the location as Survey No. 159. On measuring the extracted minerals in presence of the Pancha Witnesses, about 2342 Mt. of fresh minerals were found to have been extracted illegally. On being asked about the person who mined the quarry, the Pancha Witnesses stated that, Shri Bodubhai Sumarbhai Kanani, residing at Vadala, Taluka Talala has been quarrying for four months.
Pursuant to a report by the Geologist, Gir Somnath with regard to the above stated matter and telephonic instructions as to institute a police complaint, it is my complaint against (1) Shri Jayeshbhai for illegal mining of total 617 Mt. Limestone at Pit No.1 and thereby committing a theft of mines and minerals valued at Rs.1,62,888/- (Rupees one lakh sixty two thousand eight hundred eighty eight), (2) Shri Parbatbhai Virambhai Dasa for illegal mining of total 1078 Mt. Limestone at Pit No.2 and thereby committing a theft of mines and minerals valued at Rs.2,84,592/- (Rupees two lakh eighty four thousand five hundred ninety two), (3) Shri Bhimbhai Vallabhbhai Khunt and Shri Haribhai Navghanbhai Jadav for illegal mining of total 2170 Mt. Limestone at Pit No.3 and thereby committing a theft of mines and minerals valued at Rs.5,72,880/- (Rupees five lakh seventy two thousand eight hundred eighty) and (4) Shri Bodubhai Sumarbhai Kanani, residing at village Vadala, Taluka Talala, for illegal mining of total 2342 Mt. Limestone at Pit No.4 and thereby committing a theft of mines and minerals valued at Rs.6,18,288/- (Rupees six lakh eighteen thousand two hundred eighty eight), and against the persons who may be identified during your investigation as being involved in the above stated illegal mining, to take actions under Section 379 of I.P.C., Section 3, 5, 6, 8, 13 of the Gujarat Minerals Page 3 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024 NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined (Prevention of Illegal Mining, Transport and Storage) Rules, 2005, Section 4(1-A) and 21 of the M.M.R.D. Act, 1957 and any other section as applicable."
3. Heard Mr. Ashish M. Dagli, learned advocate for the applicant and Mr. H. K. Patel, learned APP for the respondent- State.
4. Mr.Ashish M. Dagli, learned advocate for the applicant, at the out set, submitted that in view of Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short "the MMDR Act"), no court shall take cognizance of any offence punishable under this Act or any rules made there under except upon complaint given by the officer authorized in writing. Therefore, the court would not be able to take any cognizance on any material that is produced along with the police report on the basis of the charge sheet filed by the police officer.
4.1. To substantiate the aforesaid contention, Mr. Ashish M. Dagli, learned advocate has placed reliance on the decision of the co-ordinate bench of this Court in case of Vishalbhai Rameshbhai Khurana and another vs. State of Gujarat and another reported in 2010 (3) GCD 2160 (Guj) which in turn came to be confirmed by the Apex Court in case of State (NCT of Delhi) vs. Sanjay in Criminal Appeal No.499 of 2011 and allied matters reported in (2014) 9 SCC 772. 4.2. By making the above submissions, learned advocate Page 4 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024 NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined Mr.Ashish Dagli requested to quash and set aside the impugned FIR.
5. Per contra, Mr. H. K. Patel, learned APP vehemently opposed the application contending, inter alia, that here clear cognizable offence has been made out and thereby the present application under Section 482 of the Criminal Procedure Code may not be entertained. He further submitted that during the course of investigation, the Investigating Officer has filed the charge sheet with the ample evidence that the offence has been committed and thereby this Court may not entertain this application under Section 482 of the Criminal Procedure Code. However, learned APP could not dispute the ratio laid down by this Court in case of State (NCT of Delhi) vs. Sanjay (supra). Thus, he alternatively requested this Court to give liberty to the authorized officer to file a written complaint before the concerned court with the material so collected during the course of investigation in the form of charge sheet.
5.1. By making above submissions, learned APP requested to dismiss the application.
6. Having heard learned advocates for the parties and having gone through the material placed on record, a short question that falls for consideration is as to whether in view of bar under Section 22 of the MMRD Act, whether the court can take cognizance upon the police report and or charge sheet? The aforesaid question is no more a res integra. The co-
Page 5 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined ordinate bench of this Court in case of Vishalbhai Rameshbhai Khurana and Another (supra) as has been confirmed by the Apex Court in case of NCT-Delhi (Gujarat), has held that Section 22 of the MMRD Act does not prohibit registering of FIR by the police on information being given with respect to offence punishable under the MMRD Act or the Rules made thereunder. However, it is also not open for the magistrate to take cognizance of the offence punishable under the MMRD Act and Rules thereunder on mere charge sheet by the police.
7. Considering the said ratio, the same is applicable to the facts and circumstances of the present case.
8. In the instant case, the FIR was lodged before the police authority and investigated by the police and charge sheet has been filed.
9. Thus, in view of the aforesaid preposition of law, more particularly Section 22 of the MMRD Act, the concerned court would not be able to take any cognizance there of and thereby the FIR deserves to be quashed and set aside qua the offence punishable under the MMRD Act.
10. Accordingly, present application is allowed and the FIR being I-C.R. No.111 of 2016 filed before the Kodinar Police Station, Gir-Somnath and consequential proceedings thereof are quashed and set aside qua the offence punishable under the MMRD Act.
Page 6 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024NEUTRAL CITATION R/CR.MA/16710/2021 ORDER DATED: 25/09/2024 undefined
11. However, the officer concerned will be at liberty to file appropriate complaint before the concerned court against the writ applicant with the aid and the help of the material so collected during the course of investigation in form of charge sheet in accordance with law.
(NIRAL R. MEHTA,J) ILA Page 7 of 7 Uploaded by PATEL ILA KANTIBHAI(HC00194) on Tue Oct 01 2024 Downloaded on : Tue Oct 01 21:22:13 IST 2024