1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRL.P. NO.2400/2017
BETWEEN
1. SRI N PARTHASARATHI
S/O LATE R.NATESHAN,
AGED ABOUT 64 YEARS,
PROPRIETOR: M/S MOOKAMBIKA
STONE CRUSHER,
BEERAHALLI VILLAGE,
NANDAGUDI HOBLI,
HOSAKOTE TALUK - 562 122
BANGALORE RURAL DISTRICT,
R/AT NO. 475, 3RD CROSS,
11TH MAIN, HAL II STAGE,
INDIRA NAGAR, BANGALORE - 560 008.
2. SRI B. V. BYRE GOWDA
S/O LATE B.N.VENKATARAMANAGOWDA,
AGED ABOUT 52 YEARS,
PROPRIETOR: M/S CHANAKESAVA
STONE CRUSHER,
RESIDENT OF
THAMME GOWDA EXTENSION,
HOSKOTE TOWN - 562 114
BANGALORE RURAL DISTRICT.
...PETITIONERS
(BY SRI Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI DEEPAK J, ADV.)
2
AND
1. THE STATE BY
NANDAGUDI POLICE STATION
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
2. SRI MUNINARAYANAPPA
S/O LATE PAPANNA,
AGED ABOUT 54 YEARS,
R/AT BEERAHALLI VILLAGE,
NANDAGUDI HOBLI,
HOSAKOTE TALUK - 562 114.
...RESPONDENTS
(BY SRI ROHITH B.J, HCGP FOR R1,
SRI LETHIF.B, ADV. FOR
SRI NISHIT KUMAR SHETTY, ADV. FOR R2.)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE FIR IN CR.NO.57/2017 ON THE FILE OF ADDL. CIVIL
JUDGE (JR.DN.) AND J.M.F.C., HOSAKOTE, BANGALORE RURAL
DIST., BANGALORE FOR THE OFFENCE P/U/S 5, 9B OF THE
EXPLOSIVE ACT, UNDER SECTIONS 43 AND 44 OF KARNATAKA
MINOR MINERAL CONSISTENT RULE 1994, UNDER SECTIONS
4(1A), 4(1) OF MINES AND MINERALS REGULATION OF
DEVELOPMENT ACT, 1957 AND U/S 286 OF IPC, 1860.
THIS CRL.P COMING ON FOR 'ADMISSION', THROUGH
VIDEO CONFERENCING THIS DAY THE COURT MADE THE
FOLLOWING:
3
ORDER
The petitioners No.1 and 2 arraigned as Accused Nos.1 and 2 in Crime No.57/2017 registered by the Nandagudi Police Station, Bengaluru, whereby these accused are seeking quashment of the Criminal Proceedings initiated against them in Crime No.57/2017 for the offences punishable under Sections 5 and 9B of Explosive Act, 1884, Sections 43 and 44 of the Karnataka Minor Mineral Concession Rules, 1994, Sections 4(1A) and 4(1) of the Mines and Minerals (Regulation of Development) Act, 1957 and so also the offence under Section 286 of IPC, 1860 which is pending before the court of Addl. Civil Judge (Jr. Dvn.) and JMFC, Hoskote, Bengaluru Rural District.
2. Heard the learned senior counsel Sri. Y.R. Sadashiva Reddy for the petitioners who is appearing through video conferencing and so also the counsel for respondent No.2 Sri. Lethif .B & the learned Government Pleader for respondent No.1 who are present before the court physically, for quashment of the proceedings.
4
3. Whereas, the learned senior counsel for the petitioners has taken me through the initiation of the crime against the accused by the first respondent police submitted that the petitioners are no way concerned with the alleged crime arraigned as accused relating to blasting of the rocks and they have entered into an agreement between one S.L.N Company who is having the licence for blasting of rocks and if any blast were made by the agreement holder who is responsible for any incident, but in the complaint a specific allegation made against the accused. In the report, it has observed that the Government Primary School of Huluvanahalli and Beerahalli village is located at a distance of 400 mtrs. and 500 mtrs. respectively from Chennakeshava Stone Crushers. It has also further observed from M/s. Mookambika Stone Crushers nearest lease boundary at a distance of about 300 mtrs. and 500 mtrs. respectively. In addition to the private building belongs to one Narayanappa Oblahalli is also located at a distance of 600 mtrs. from the nearest lease boundary. But the complainant registered a case against the accused with the influence of persons those who are 5 inimical terms towards them and because of the reason the case in Crime No.57/2017 came to be registered for the offences which reflective in the FIR said to have been recorded by Nandagudi P.S.
4. The second limb of the argument advanced by the learned senior counsel is that the complaint has been filed against the petitioners by the complainant with an ulterior motive in order to cause some harassment to the petitioners, they were arraigned as accused in the Crime registered by the Nandagudi Police Station by suppressing all the reports relating to the allegation made in the complaint and also B report filed on the force of some sort of political factors with an only intention to cause some harassment to the accused persons without any material evidence.
5. Lastly, the senior counsel submitted that neither the nearest dwellers nor the villagers have come forward to file a complaint against the accused but only the theory has set-up for filing a complaint against the accused before the Nandagudi Police Station only with an ulterior motive to cause some sort of 6 harassment to the accused persons alleging vibration and also causing some harassment to the dwellers in that locality. These are all the allegations even though it has been stated in the complaint that complainant has suppressing the report relating to the allegation made in the complaint filed before the Nandagudi Police Station where the crime came to be registered against the accused persons.
6. In support of his contention the senior counsel has taken me through the report i.e. final report submitted relating to the letter dated 23.03.2016 addressed to one Dr.H.S. Venkatesh, HOD RBEE, National Institute of Rock Mechanics, Bengaluru wherein, requested him to verify scientifically the intensity and severity of blasting in the quarries in Beerahalli, Oblahalli and Huluvanahalli, Hoskote Taluk as such, seeking reporting of the same. Accordingly, the inspection has been made and also conducted a scientific survey relating to quarries in the mentioned area and prepared a technical report which leads to proceeding in for the harassment, this final report. The senior counsel Sri. Y.R. Sadashiva Reddy who has specifically taken me 7 through that point 5.4 in the final report captioned as "Recommended Safe Permissible Particle Velocity". In this point wise said that considering the frequency of recorded ground motion being greater than 8 Hz, the permissible level of ground vibration as per DGMS (Table 1) standards happens to be 10 mm/s for domestic house/structure (Kuchha, brick and cement) structures. In order to enforce a higher decree of factor to safety and keeping in view the current MCD used, a conservative safe permissible limit of 5 mm/s which recommended though the final report consisting several sheets relating to inspection of the quarry areas which indicates in that letter. However, this report has not been considered by the Nandagudi Police Station but registered a Crime against the accused for the offences which reflected in the FIR which is nothing but creating a theory and to set-up a theory against the accused in the alleged crime, on these premises the learned senior counsel for the petitioners seeks intervention by exercising the power under Section 482 of Cr.P.C. If not certainly the gravamen of the accused would be sufferer regarding registration of crime and then proceeding case for investigation, mere because to proceed with the case for 8 investigation as akin to Section 173 (2) of Cr.P.C. which cannot be specifically said that the accused alleged to have committed the alleged offences. In all these premises the learned senior counsel Sri. Y.R. Sadashiva Reddy seeking to allow the petition and quashment of the Criminal Proceedings initiated against the accused by registering the case in Crime No.57/2017 by Nandagudi Police Station.
7. The learned High Court Govt. Pleader for State who has countered to the arguments advanced by the learned senior counsel for the petitioners by referring the final report submitted by Dr.H.S. Venkatesh, HOD RBEE, National Institute of Rock Mechanics. The said Dr.H.S. Venkatesh who has visited the quarries of the mentioned area in the letter dated 23.03.2016 and the quarry using heavy blasting received public complaint regarding blasting resulting to the cracks developed in their houses of nearby villages. The Assistant Commissioner of concerned sub-division was also inspected the houses affected the villages on the ground of these public complaint. However, the crime came to be registered based upon the complaint filed 9 by the complainant on 20.02.2017 wherein that one N. Parthasarathi and B.V. Byre Gowda said to have been engaged in these activities for crushing of rock areas which caused some sort of health hazardous to the dwellers in the nearby village and also causing some sort of a disease to the cattle's as there was some explosive of a rocky powder due to blasting of rocky areas. Unless the investigating agency proceeds with the case for investigation in order to secure the material evidence, at this stage it cannot be proper, for that, there are no prima-facie materials against the accused to committing the alleged offences which reflected in the FIR. On these premises, the learned High Court Govt. Pleader for State submitted that at this stage it cannot be a right for intervention by exercising the power under Section 482 of the Cr.P.C. but can be exercised only sparingly judicially & judiciously. However, in the instant case, the crime came to be registered based upon the complaint filed by one P. Narayanappa S/o late Papanna of Beerahalli village. This complaint has filed by him on behalf of dwellers of that village. These are the contentions taken by the learned High Court Govt. Pleader for State while seeking for dismissal of this petition and 10 the investigating agency has to proceed with the case for investigation and for laying a charge sheet as contemplated under Section 173(2) of Cr.P.C. or if any other report as contemplated under the Cr.P.C.
8. It is in this context of the contention taken by the learned senior counsel relating to the case in Crime No.57/2017 registered by Nandagudi Police Station. The second respondent who has approached the Nandagudi Police Station on 20.02.2017 and accordingly, he filed a complaint alleging that the petitioners said to be arraigned as accused involving in the blasting out the rocky area quarrying in survey No.25, situated in the limit of Huluvanahalli village. Therefore, the first respondent police have visited the spot on the basis of the complaint lodged by the dwellers nearby the rocky area of accused Nos.1 and 2 involved in a quarry work by blasting of the rocky in survey No.25 of the Huluvanahalli village. The complainant in his complaint alleging that they have to obtain licence to blast the rocks under the Explosive Act, 1984 and also Explosive Rules of 2008, but it is 11 relevant to refer Section 43 and 44 of the Karnataka Minor Mineral Concession Rules, 1984, which reads as under:-
"43.Checkposts and checking of minerals in transit:- (1) The State Government may, by notification, direct the establishment of checkpost or erection of barriers or both at such place or places as it thinks fit with a view to prevent or check unauthorised transportation of minor minerals and evasion of royalty or commission of any other offence in respect of minor minerals:
Provided that till such checkposts are established or barriers are erected in any place or places, the State Government may, notify the check posts already established or barriers erected in such place or places under the Karnataka Sales tax Act, 1957 or the Karnataka Forest Rules 1964 to be the checkposts or barriers for the purposes of these rules also.
(2) Every driver or person in-charge of a vehicle carrying minor mineral shall be in possession of a valid permit and waybill, sale or delivery note and Form-39 issued by Commercial Taxes Department containing necessary particulars in 12 respect of such minerals and shall produce the same before any authorised officer in-charge of a check post or barrier.
(3) Any officer authorised by the State Government in this behalf (hereinafter referred to as authorised officer) may check a vehicle carrying minor mineral at any place, and the owner or person in-charge of the vehicle shall produce the permit and other documents such as waybill etc. as demanded by the authorised officer.
(4) At every checkpost or barrier set up or notified under sub-rule (1) or at any other place, when so required by any authorised officer, the driver or any other person in-charge of the vehicle carrying minor mineral shall stop the same and keep the vehicle stationed so long as may reasonably be necessary, and allow the officer in-charge of the checkpost or the barrier or, as the case may be, the authorised officer to examine and take measurements of the minor minerals in transit and inspect all records relating to the minerals in possession of such driver or other person. The driver or other person shall, if so required by the officer in- charge of the checkpost or the barrier or the 13 authorised officer, give his name and address and also that of the owner or the consignor and consignee. After checking the minerals and vehicle, the officer shall put his signature and rubber stamp on the permit so as to avoid any further checking at another checkpost.
(5) If the driver or person in-charge of the vehicle fails to produce a valid permit, the officer in- charge of the checkpost or barrier may require the driver or the owner or person in-charge of the vehicle to pay penalty equal to five times the amount of royalty payable as per Schedule-2.
(6) The Officer in-charge of the checkpost or the barrier or the authorised officer may seize and confiscate any minor mineral which is under transit by a vehicle if the owner or the driver or person in- charge of the vehicle refuses to make payment as required under sub-rule(5).
(7) The officer in-charge of the checkpost or the barrier or the authorised officer shall give a receipt for having seized such minor mineral to the person from whose possession or control it is seized. 14
(8) Whenever an order of confiscation in respect of minor mineral seized under sub-rule (6) is made, the confiscating officer shall give an option to the owner or driver or person in charge of the vehicle to pay the amount as required under sub- rule (5) in lieu of such confiscation. In case of failure of the driver, owner or person in-charge of the vehicle to exercise such option, the confiscated material may be disposed of by the officer by auction sale:
Provided that no such minor mineral confiscated under sub-rule (6), shall be disposed of by the confiscating officer before expiry of three days from the date of such confiscation and, till such time option shall remain with the owner or person in charge of the vehicle to carry the minor mineral after paying the penalty assessed.
44.Offenses:- [(1)] Any person who contravenes the provisions of Sub-rule (1) of rule 42 shall, on conviction be punished with imprisonment for a term which may extend to one year or with fine which may extend to rupees five thousand or with both, and in the case of a continuing contravention with an additional fine which may extend to five 15 hundred rupees for every day during which such contravention continues after first such contravention.
(2) Any persons who undertakes any quarrying operation in respect of any minor mineral either without a licence or quarrying permit granted under these rules or in contravention of the terms and conditions of any licence or permit shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in case of a continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.]"
9. However, Section 154 of Cr.P.C. reveals that complaint filed by the Complainant then only to register the crime and proceed with the case for investigation, but in the instant case, after filing of complaint by respondent No.2 the crime came to be registered by Nandagudi Police Station and hence, proceeded by recording the FIR. But the letter dated 23.03.2016 addressed by the Deputy Director, Dept. of Mines and Geology, Bengaluru 16 Rural District to one Dr.H.S. Venkatesh, HOD RBEE, National Institute of Rock Mechanics, whereas in his letter requesting to verify scientifically the intensity and severity of blasting in the quarries in Beerahalli, Oblahalli and Huluvanahalli, Hoskote Taluk and submitting a report due to blasting activities in these quarries using heavy blasting. In pursuance of this letter issued by the Deputy Director of Dept. of Mines and Geology, Bengaluru Rural District that the report has submitted as a final report study on ground vibration and air overpressure due to blasting at two quarries located at Beerahalli, Oblahalli and Huluvanahalli villages of Hoskote taluk. As already referred point 5.4 in the final report relating to Recommended Safe Permissible Particle Velocity. The recorded peak particle velocity versus distance is printed in Figure 11 and it may be noted that the vibration level attenuates to less than 5 mm/s beyond a distance of about 150 mtrs. from the blasting area.
In conclusion and recommendations in the final report it indicates as follows:-
17a. All the blasts monitored during the study period were safe with respect to ground vibration and air overpressure. b. The frequency of recorded ground motion is greater than 8 Hz.
c. The suggested permissible ground vibration level is 5 mm/s for the structures located in the nearby villages of the two quarries.
d. Based on the IS Code and USBM guidelines, permissible air overpressure level is 133 dB for the structures located in the nearby villages of the two quarries.
e. The ground vibration due to blasting at the two quarries of Channakeshava and Mookambika Stone Crushers attenuates below 5 mm/s beyond a distance of 150 m from the blast. f. Ground vibration in terms of peak particles velocity can be estimated from the predictor equation 2 or Figure 8 for both the quarries.
18g. It is recommended that the maximum charge per delay and total charge shall not exceed 25 kg in any of the blast.
10. In the final report Dr.H.S. Venkatesh who has visited the blasting area and thoroughly inspected and studied the area where the blasting of rock activity involving as alleged in the complaint filed by the complainant and then submitted a comprehensive report which consists several pages and important portions have been referred as aforesaid keeping in view the contention as taken by the learned senior counsel Sri. Y.R. Sadashiva Reddy who represents the petitioners.
11. Section 482 of the Cr.P.C. it is saving of inherent power of High Court exercising the jurisdiction. Under this Section the High Court would not ordinarily embark upon an enquiry; whether the evidence in question is reliable or not; whether a reasonable apprehension of it acquisition could not be sustainable but the ends of justice would better serve if the valuable time of this court is saved by entertaining the petition under Section 482 of Cr.P.C. It is well settled principles of law that the inherent power under Section 482 of Cr.P.C. can be 19 exercised only when no other remedy is available to the litigant and not when various specific remedies provided by the statute. Whereas in this Section 482 of Cr.P.C. the power can be exercised to prevent abuse of the process of the court. The High Court in exercise of its inherent power under Section 482 of Cr.P.C. for quashing the proceeding but there would be justification for interference, when the complaint did not disclose any offence or was frivolous, vexatious and or oppressive which is found in the allegation made and the complaint filed by the complainant against the accused persons. But it is relevant to refer that the judgment reported in AIR 2019 Supreme Court 210, in the case of Anand Kumar Mohatta and Another Vs. State (Govt. of NCT of Delhi) Department of Home and Another, whereas in this judgment the Hon'ble Supreme Court have been extensively addressed the power under Section 482 of Cr.P.C. that quashing of FIR as inherent powers nothing in words of Section 482 restricting exercise of power of Court to prevent abuse of process of court or miscarriage of justice only to the stage of the FIR. The High court can exercise jurisdiction under Section 482 of Cr.P.C even if charge sheet is filed during the 20 pendency of the application. In this judgment the Hon'ble Supreme Court has referred; AIR 2014 SC 1106 (Umesh Kumar Vs. State of Andhra Pradesh and Another), AIR 2006 SC 2780 (Indian Oil Corporation Vs. NEPC India Ltd. And Others). However, it is relevant to refer the judgment of AIR 1977 SC 1489 (State of Karnataka Vs. L. Muniswamy and others) where it is held as in the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The savings of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. 21
12. Whereas, in the instant case, where a criminal proceeding has been initiated by the second respondent by filing a complaint before the first respondent Nandagudi Police Station and based upon his complaint the crime came to be registered but on the cursory glance from allegations made in the complaint and so also the report submitted by Dr.H.S. Venkatesh made an inspection at the spot as where alleged quarry activities have been done by the accused persons and even at a cursory glance of materials, a criminal proceeding is manifestly attended with malafides and where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused with a view to spite him due to personal grudge.
13. Whereas in the instant case, the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Therefore, keeping in view the ratio of reliance and also the final report submitted by Dr.H.S. Venkatesh which consists of several sheets, prepared a report with point-wise, 22 there is no hesitation in quashing the FIR which registered by Nandagudi Police Station in Crime No.57/2017 against the accused.
In terms of the aforesaid reasons, I proceed to pass the following:
ORDER
i) The petition filed by the petitioners/accused Nos.1 and 2 under Section 482 of Cr.P.C. is hereby allowed;
ii) Consequently, the case in Crime No.57/2017 registered by Nandagudi Police Station is hereby quashed.
Sd/-
JUDGE Chs CT-HR