NEUTRAL CITATION
R/CR.RA/1405/2023 ORDER DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 1405 of 2023
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BHARATBHAI DHIRUBHAI PANDIT
Versus
STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 09/11/2023
ORAL ORDER
1. The applicants herein are challenging the order dated 28.6.2023 passed by the learned Additional Sessions Judge below Exh.1 in Criminal Inquiry no.1/23. The order impugned passed by the Special Court was in criminal inquiry moved by the Royalty Inspector of Geology Department. The complainant had moved the application under Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as "the MMDR Act") and Rule 21 of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as "the Page 1 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined Rules"). The order impugned is under Section 156(3) of the Code of Criminal Procedure, 1973 directing the Police Inspector, Vankaner Taluka Police Station to do the needful and after investigation to produce the report.
2. Learned advocate Mr. Jay Shah for the applicants submits that the order impugned is faulty and would be against the procedure of the Cr.P.C. since on 17.6.2023, the court had already taken the cognizance of the complaint and had ordered for registration of the complaint and thus, submits that after the order under Section 202 of the Cr.P.C., the learned Judge cannot go back at a precognizance stage for any registration of the complaint by police as would become mandatory to file the FIR since the order is under Section 156(3) of the Cr.P.C. Advocate Mr. Shah submits that the complaint moved by the authority of the Mines and Minerals Department was under Rule 22 of the Rules which authorizes the competent authority to compound the offence even prior to institution of prosecution and thereafter and if the offence gets Page 2 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined compounded, no further proceedings shall be commenced against such person and if any proceedings have already commenced, such proceedings would get a quietus, as the Rule provides that no other process to be further proceeded and if at all the accused is in custody, he shall be discharged and the property seized if it is not to be retained be released. Advocate Mr. Shah submits that the authority had moved for compounding the offence itself gets reflected in the impugned order. Advocate Mr. Shah submits that since the applicants were of the view that there was no offence committed, he has not adopted the option of compounding the offence and had preferred for trial. Learned advocate submits that in view of Section 22 of the MMDR Act, no court can take any cognizance of the offence under the Act or the Rules except upon the complaint in writing made by the person authorizing in this behalf by the Central Government and the State Government. Learned advocate submits that in case when already a complaint has been registered and cognizance has been taken under Section 202 then no further order can be made for Page 3 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined registration of the complaint under Section 156(3) of the Cr.P.C.
3. Ms. Jirga Jhaveri, learned APP submits that the Rules are specified to bring all the process to be undertaken by the authority concerned at all stages and further states that the judgment in the case of Jayant & Ors. (supra) laid down the directions to be followed by the police as well as the authorities concerned and the direction is also to the Court to adopt the procedure accordingly.
4. Section 22 of the MMDR Act does not permit registration of the FIR since the competent authority is required to file a complaint before the Special Court. Rule 12, of the Rules under Chapter 5 of inspection, confiscation and release, lays down the procedure whenever any person raises, transports or causes to be raised or transported without any lawful authority any mineral from any land and for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral, tool, equipment, vehicle or other Page 4 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined thing shall be liable to be seized by the Government in the manner specified in sub-rule (2) of Rule 12. The authorized person on seizing any property shall photograph the property and place on such property a mark in such manner as may be determined indicating that the same has been so seized and thereafter, issue a notice in Form-J informing the person from whom the property so seized and release the property so seized upon receipt of a bank guarantee for an equal amount to the penalty payable under Rule 21 in case of transportation of, or causing to transport, mineral without lawful authority or the written down value of the property, in case of illegal mining or illegal storage of mineral, with the proviso specifying that such release under clause (a) of sub-rule (2) shall be without prejudice to and shall not in any manner affect the conduct of investigation and other action contemplated under clause (b) of sub-rule (2). The explanation provides that seizure of property is as a security against the amount of penalty due to the Government and to ensure the presence of the alleged offender before the Government if the case is at notice stage. Page 5 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023
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5. Clause (b) of sub-section (2) provides about the conduct of the investigation and if the authorized person is satisfied that a compoundable offence has been committed in respect of the property, he may subject to receipt of the compounding application, order payment of such amount for compounding the offence as may be deemed appropriate, which amount if not paid within thirty days, may be recovered by invocation of the bank guarantee furnished under clause (a) of sub-rule (2), or in a case where the offence is not compounded, as in the present case, the applicants have preferred for not adopting the option of compounding the offence then, in such case preliminary investigation is to be conducted by the authorized person. The rules do not permit investigation by the police under the MMDR Act. The authorized person under Section 22 of the MMDR Act is satisfied that the offence committed in respect of the property is not compoundable then upon expiry of 45 days from the date of seizure or upon completion of the investigation whichever is earlier shall Page 6 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined approach by way of making a written complaint before the Court of Sessions.
6. The Rule itself thus provides that the investigation is by the authority under the MMDR Act. The investigation cannot be conducted by the police. The responsibility of the authority under the MMDR Act cannot be laid down on the police by passing an order under Section 156(3). In the case of Jayant & Ors. v. State of Madhya Pradesh, (2021) 2 SCC 670, the Hon'ble Apex Court has laid down the procedure to be adopted in case where there is a criminal offence under the IPC and a complaint which is under the MMDR Act. It is mandatory that if a complaint is made under the MMDR Act the complaint would be filed by the authority with the designated court under the MMDR Act. Thus, no further direction can be given to the police for the investigation since the investigation is the prerogative of the authority. Here the court had already taken the cognizance of the complaint and had passed an order for the court inquiry. Page 7 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023
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7. The order impugned reflects the provision of Section 319 of the Cr.P.C. The process and procedure are laid down in the MMDR Act and the Rules. The investigation is to be made by the authority as provided under Section 22 of the MMDR Act and it is only on the complaint of the person authorized on behalf of the Central Government or the State Government that the court can take cognizance of the offence. Thus, it is only the authority concerned of the Central Government or the State Government of the MMDR Department which has right to investigate the matter. Even if any further evidence are required to be brought on record then it is only the authority of the department who has right to bring any further evidence on record. Even if the Court feels that some other persons are required to be proceeded then such facts were required to be brought to the notice of the authority concerned, while no order can be passed under Section 319 Cr.P.C. directing the police to file FIR under Section 156(3) of the Cr.P.C. Hence the impugned order dated 28.6.2023 passed by the learned Additional Page 8 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023 NEUTRAL CITATION R/CR.RA/1405/2023 ORDER DATED: 09/11/2023 undefined Sessions Judge is illegal and contrary to the provisions of the MMDR Act and the Rules and therefore, the same is quashed and set aside.
8. Accordingly, the present application stands disposed of.
(S. V. PINTO,J) H.M. PATHAN Page 9 of 9 Downloaded on : Thu Nov 09 20:53:20 IST 2023