Gujarat High Court
Bhaveshbhai Pithabhai Kambariya vs State Of Gujarat on 24 June, 2025
NEUTRAL CITATION
R/SCR.A/3983/2021 ORDER DATED: 24/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3983 of 2021
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BHAVESHBHAI PITHABHAI KAMBARIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/06/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed to quash and set aside the FIR being 11185003210062 of 2021 registered with Kalyanpur Police Station for the offences under Sections 379 of the Indian Penal Code, sections 4(1), 4(1)a, 21(1), 22 of the Mines and Minerals (Development and Regulation) Act and sections 3, 7 and 21(2) of the Gujarat Minerals Prevention of Illegal Mining Transportation and Storage Rules, 2017 and all the consequential proceedings arising therefrom.
2. Brief facts of the case is as under :-
2.1. The respondent No.2, serving as a Royalty Inspector in the Mines and Minerals Department, Devbhumi Dwarka, lodged the impugned FIR on 20.01.2021 alleging that, based on a Page 1 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined complaint received, an inspection was carried out at a particular site where unauthorized quarrying activity involving extraction of approximately 750 metric tons of bauxite mineral was detected. It is alleged that the excavation was undertaken without any valid lease or permission, resulting in a monetary loss of ₹9,56,240/- to the government. The FIR further alleges that the owners and drivers of three dumper vehicles and one Volvo excavator, identified by their respective registration and chassis numbers, were involved in the offence and had acted in connivance.
2.2. The petitioner, however, contends that he was neither present at the alleged site during the inspection nor named in the FIR. It is submitted that there is no material to indicate his involvement in any illegal quarrying activity and that the mere ownership or presence of vehicles near the site does not establish culpability. Further, it is pointed out that the leaseholder has not lodged any complaint, and that the vehicles were, in fact, parked near the office of H.P. Thankini mining lease and have been falsely implicated by misrepresenting photographs. It is therefore urged that the FIR is devoid of the basic ingredients of the alleged offences and amounts to a gross abuse of process of law, warranting its quashment.
3. Learned advocate Mr. P.P. Majmudar for the petitioner relying upon judgment of Co-ordinate Bench in the case of Prahladbhai Jyantibhai Raval v/s. State of Gujarat [2022 (0) Supreme (Guj) 1210] would submit that in the present case, accused is charged with offence under Page 2 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined Section 379 of the IPC, 4(1), 4(1)a, 21(1), 22 of the Mines and Minerals (Development and Regulation) Act and sections 3, 7 and 21(2) of the Gujarat Minerals Prevention of Illegal Mining Transportation and Storage Rules, 2017.
3.1. Learned advocate Mr. Majmudar for the petitioner at the outset would submit that he is not pressing present petition so far as offence under section 379 of IPC is concerned. He would submit that in the present case, Investigating Officer after investigating the offence has also filed charge-sheet under the MMDR Act. He would further submit that in view of section 22 of the MMDR Act, the Court cannot take cognizance of offence under the Act and Rules made thereunder except in case of written complaint filed by Authorized Officer. He would further submit that since authorized officer has not filed written complaint as defined under section 2(d) of Cr.P.C., Investigating Officer cannot file charge-sheet for the offence under the MMDR Act and the Court cannot take cognizance of said Act. Therefore, he submits to quash the proceedings qua the offence under the Act and Rules made therein.
4. Learned APP for the respondent State would submit that the petitioner cannot seek quashment of FIR on this ground and therefore submitted not to exercise inherent power of this Court to quash the complaint and submitted to dismiss the petition.
5. Having heard learned advocates for the parties, what could be notice that chief allegations against the petitioner is in regard to illegal theft of minerals including sand. Property Page 3 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined indisputably is of the State Government. In view of that, offence under section 379 of IPC is already registered. However, whether offence under the MMDR Act can be taken cognizance by learned Trial Court in absence of written complaint is issue to be decided in the matter.
6. Section 22 of the Mines and Minerals (Development and Regulation) Act reads as under :-
"22. 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 authorized in this behalf by the Central Government or the State Government."
6.1. Specific bar has been raised that no Court shall take cognizance of any offence under the Act or Rules made thereunder except upon complaint in writing made by authorized person.
7. Complaint has been defined in section 2(d) of the Cr.P.C. It reads as under :-
"(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."
7.1. The complaint means any allegation made orally or in writing to Magistrate with a view to his taking action under the Code or Cr.P.C.
8. At this juncture, I may refer to judgment of Hon'ble Apex Page 4 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined Court in the case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75, wherein, the Hon'ble Apex Court in identical issue observed as under:
"66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed.
67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels.
68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act Page 5 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined and not for any act or omission which constitute an offence under Indian Penal Code.
71. Hence, merely because initiation of proceeding for commission of an offence 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 person. In other words, in a case where there is a theft of sand and gravels 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.
72. 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 sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD 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."
9. Applying ratio stated herein above, filing of charge-sheet against the petitioner under the provisions of MMDR Act is not Page 6 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025 NEUTRAL CITATION R/SCR.A/3983/2021 ORDER DATED: 24/06/2025 undefined maintainable in view of bar under section 22 of the MMDR Act. Therefore, charge sheet qua said offence is required to be quashed.
10. For the reasons stated herein above, I pass the following order :-
10.1. The petition is partly allowed. Charge-sheet and consequential proceedings filed in FIR being 11185003210062 of 2021 registered with Kalyanpur Police Station for the offence under the provisions of Mines and Minerals (Development and Regulation) Act and Rules made thereunder is hereby quashed. However, it is made clear that this Court has not examined merits of the case. It would be open for the concerned authority to file written complaint subject to provision of law in regard to investigation and material collected during investigation of offence under Mines and Minerals (Development and Regulation) Act and Rules made thereunder. If such complaint is filed by officer as stated under section 22 of Mines and Minerals (Development and Regulation) Act, it shall be dealt with in accordance with law by competent Court without being influenced by quashing of offence.
10.2 The petition stands disposed of as not pressed for offence under section 379 of the IPC.
(J. C. DOSHI,J) MANISH MISHRA Page 7 of 7 Uploaded by MANISH MISHRA(HC01776) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 01:37:11 IST 2025