Karnataka High Court
Ibjoor Noorahmad Attar vs The State Of Karnataka on 11 September, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 t h DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
CRIMINAL PETITION No .101530 OF 2018
BETWEEN:
IBJOOR NOORAHMAD ATTAR
AGE: 27 YEARS, OCC: BUSINESS,
R/O: PLOT NO.25/B,
6TH CROSS, AZAD NAGAR,
BELAGAVI.
... PETITIONER
(By Sri VITTHAL S TELI ADV.)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD,
THROUGH KAKATI POLICE STATION,
KAKATI, TQ: & DIST: BELAGAVI.
... RESPONDENT
(By Sri.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. SEEKING THAT THE COMPLAINT AND FIR IN
KAKATI PS CR.NO.211/2018 ON THE FILE OF IV JMFC-
COURT, BELAGAVI FOR THE OFFENCE PUNISHABLE UNDER
SECTION 420 OF IPC & U/SECS.4(1), 4(1A), 21 AND 22 OF
MMDR ACT BE QUASHED AS AGAINST THE
PETITIONER/ACCUSED NO.1.
:2: Crl.P. No.101530/2018
This Petition coming on for Orders, this day the Court
made the following:-
ORDER
Whether Police can register complaint of a Police Officer alleging commission of Crime punishable under Section 4 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short 'MMDR Act') read with Section 21 of MMDR Act and investigate into such complaint is the question involved in this case.
2. One Arjun Hanchinamani, Police Sub- Insp ector (Law and Order), Kakati, Belag avi filed complaint / report before the Station House Officer of Kakati police station alleg ing that on the b asis of credible information of illegal transportation of stolen sand, himself and his staff intercepted lorries bearing No.MH-04/AL-6123 and KA-22/C-1857 near Sutagatti Cross within the limits of Kakati police station. It was further alleg ed that on search, aforesaid lorries were found transporting illeg ally mined sand worth Rs.8,000/- each without any :3: Crl.P. No.101530/2018 permit for transp ortation of the same. He alleg edly seized the said vehicles and reported the matter to the Station House Officer.
3. On the basis of such complaint, the Station House Officer registered Crime No.211/2018 for the offence punishab le und er Section 420 of the Indian Penal Code, 1860 and Sections 4(1), 4(1A), 21 and 22 of the MMDR Act and reported the matter to the Magistrate. Now the investigation is going on in the said case.
4. The p etitioner is the owner of the goods truck bearing No.MH-04/AL-6123. He challeng es the said FIR on the g round that as per Section 22 of the MMDR Act read with Section 2(d) of the Code of Criminal Procedure, 1973 [for short 'Cr.P.C.'] and Rule 2(1)(a-1-a) of Karnataka Minor Mineral Concession Rules, 1994 (for short 'the Rules'), only an officer authorised by the Central or State Government has to file the complaint before the Magistrate and not before the Station House Officer. :4: Crl.P. No.101530/2018
5. Sri Vitthal S.Teli, learned counsel for the petitioner relying on Section 22 of the MMDR Act and the judgment of the Hon'ble Sup reme Court in State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 submits that First Information Report registered by the respondent police is unsustainable.
6. Sri.Praveen K.Uppar, learned HCGP submits that und er Section 22 of the MMDR Act only taking cognizance of the offence punishab le under MMDR Act is barred and b ar does not apply to the offences und er the Ind ian Penal Code. Therefore, the entire FIR does not warrant quashing.
7. Section 22 of the MMDR Act reads as und er:
"22. Cognizance of offences.―No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person :5: Crl.P. No.101530/2018 authorised in this behalf by the Central Government or the State Government."
8. Complaint is d efined in Section 2(d) of the 'Cr.P.C.' as follows:
"2. Definitions.--In this Code, unless the context otherwise requires.--
(d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report."
9. Rule 2(1)(a-1-a) of the KMMC Rules defines the authorised officer as follows:
"2(1) (a-1-a) "Authorised Officer"
means an officer not below the rank of Group B authorized by the State Government or the Commissioner or the Director of Mines and Geology or Deputy Commissioner of the District to act for the specific purpose under these Rules."
10. Und er Section 2(d) of Cr.P.C., complaint exclud es the report of the police officer. Complaint :6: Crl.P. No.101530/2018 does not state that the comp lainant is an authorized officer. Even the officer authorised und er Rule 2(1)(a-1-a) of the Rules has to file a complaint before the Magistrate.
11. Hon'b le Sup reme Court in p arag rap hs 72 & 73 of the judgment in State (NCT of Delhi)'s case referred to sup ra, in this reg ard has held as follows:
"72. From a close reading of the provisions of MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence :7: Crl.P. No.101530/2018 under the MMDR Act on the basis of complaint cannot 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 persons. In other words, in a case where there is a theft of sand and gravel from the Government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.
73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-à- vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing :8: Crl.P. No.101530/2018 sand and gravel from the riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly."
(Emphasis supplied)
12. Thus, it is clear that the police are comp etent to register the case for the offence punishab le under Section 420 of IPC. The FIR needs to be quashed only with reg ard to the offences :9: Crl.P. No.101530/2018 punishab le under Sections 4(1), 4(1A), 21 and 22 of the MMDR Act.
13. Therefore, the petition is p artly allowed. The FIR in Crime No.211/2018 of Kakati Police Station is q uashed only in so far it relates to offences punishable und er Sections 4(1), 4(1A), 21 and 22 of the MMDR Act.
Liberty is reserved to the Government to proceed in respect of the offences for which FIR is quashed in comp liance with Section 22 of the MMDR Act and in the light of the observations mad e above.
Sd/-
JUDGE RK/-