Lilabhai Ghelabhai Solanki vs State Of Gujarat
2021 Latest Caselaw 7256 Guj

      R/CR.MA/9865/2013                                  ORDER DATED: 30/06/2021



               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/CRIMINAL MISC.APPLICATION NO. 9865 of 2013
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                          LILABHAI GHELABHAI SOLANKI
                                     Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 2
MS JIRGA JHAVERI, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

                                Date : 30/06/2021

                                  ORAL ORDER

1. This is an application preferred under Section 482 of

the Code of Criminal Procedure seeking the quashment of

the FIR being I-C.R.No.05 of 2013 registered with

Madhavpur Police Station with the following prayers:

"13...

(A) That this Hon'ble Court may be pleased to admit this Criminal Misc. Application.

(B) This Hon'ble Court may be pleased to allow this Criminal Misc. Application by quashing and setting aside the complaint filed as C.R.No.I-5 of 2013 filed before Madhavpur police station by respondent No.2 and the proceedings arising out of the complaint qua present petitioners in the interest of justice.

(C) Pending admission, hearing and til final disposal of this

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petition, this Hon'ble Court may be pleased to grant stay the complaint and further proceedings of C.R.No.I-5 of 2013 filed by respondent No.2 before Madhavpur Police Station qua present petitioners in the interest of justice.

(D) Grant such other and further relief (s) as deemed just and proper by this Hon'ble Court in the interest of justice."

2. Brief facts leading to the present application are as

follow:

2.1 On 26.03.2013 the complainant - surveyor of

Jamnagar and another person went to village Utda and

inspected the Revenue Survey No.114 of 2010. They

noticed the theft of minerals and on inquiry the

leaseholder could not name the person.

2.2 On 25.03.2013 the inspection had been made of

survey No.52/4/1 of excavation of Government Land and

there also the leaseholder had not named anyone.

Eventually, this culminated into filing of the FIR on

04.04.2013.

2.3 The applicant is aggrieved by the lodgment of the FIR

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as according to him, he is in the labour work of selling

vegetables in the surrounding area. He neither possesses

the land nor enjoys any leasehold rights.

2.4 According to the applicant, in a similar set of facts,

the challenge was made by way of various applicants

before this Court in Criminal Misc. Application No.5230 of

2010 and the connected matters, where after the detailed

examination of the facts and law, the Court concluded

thus:

"21. In the result, I find that:-

1. Section 22 of the Act does not prohibit registering an FIR by the police on information being given with respect to offences punishable under the said Act or the Rules made thereunder,

2. It is, however, not open for the Magistrate to take cognizance of the offence punishable under the Act or the Rules made thereunder on a mere chargesheet filed by the police. It would, however, be open for the officer authorized by the State or the Central Government in this behalf to file a complaint in writing before the Magistrate relying upon the investigation carried out by the police and the compliant may also include the papers of police investigation.

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3. With respect to offences punishable under the Indian Penal Code, no such bar as indicated in para (2) would apply."

2.5 This has been challenged before the Apex Court in

Special Leave to Appeal (Criminal) No.8632 of 2010 with

Special Leave Petition (Criminal) Nos.527 to 531 of 2011.

The Apex Court has confirmed the judgment and order

dated 03.09.2010.

3. Recently, in case of Jayant vs. State of M.P.,

reported in 2021 (2) SCC 670 the Apex Court has given

the directions going a step further. The conclusion of the

Apex Court will be necessary to be reproduced at this

stage:

"21. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis-à- vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:

21.1 That the learned Magistrate can in exercise of powers under Section 156(3) of the Code order/direct the

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In-charge/SHO of the police station concerned to lodge/register crime case/FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under Section 22 of the MMDR Act shall not be attracted.

21.2 The bar under Section 22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and the Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and the Rules made thereunder.

21.3 For commission of the offence under 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 and the Rules made thereunder.

21.4 That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a Magistrate passes an order under Section 156(3) of the Code and directs the In-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of provisions of the Act and the Rules made thereunder and thereafter after investigation the In- charge of the police station/investigating officer concerned submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer

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concerned as mentioned in Section 22 of the MMDR Act and thereafter the authorised officer concerned may file the complaint before the learned Magistrate along with the report submitted by the investigating officer concerned and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process/summons in respect of the violations of the various provisions of the MMDR Act and the Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

21.5 In a case where the violator is permitted to compound the offences on payment of penalty as per sub-section (1) of Section 23-A, considering sub-section (2) of Section 23-A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any Rules made thereunder so compounded. However, the bar under sub-section (2) of Section 23-A shall not affect any proceedings for the offences under IPC, such as, Section 379 and 414 IPC and the same shall be proceeded with further."

3.1 The Apex Court has also further held that the

Magistrate can direct the police to lodge/register the

case / FIR under Section 156 (3) of the Code of Criminal

Procedure, not only for I.P.C. offences for illegal mining/

transportation of minerals, but even for Mines & Minerals

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(Development & Regulation) Act, 1957 / Mines & Minerals

(Development & Regulation) Rules and offences. The Bar

under Section 22 of the Mines & Minerals (Development &

Regulation) Act, 1957 would not be attracted as the

directions for investigation under Section 156 (3) of the

Code of Criminal Procedure does not amount to taking of

cognizance.

4. This Court has heard the learned advocate,

Mr.Mahesh Poojara for learned advocate, Mr.Ashish Dagli,

who has fairly pursued to this legal proposition and

learned APP, Ms.Jirga Jhaveri for respondent-State.

5. Learned advocate, Mr.Mahesh Poojara does not press

the request of quashment of the FIR being I-C.R.No.05 of

2013 registered with Madhavpur Police Station with a

further request to permit the applicant to agitate all the

legal issues at the time of taking of cognizance by the

court concerned.

6. According to the learned APP, no second round

should be permitted.

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7. Having noticed the decision of this Court in case of

Vishalbhai Rameshbhai Khurana & another vs.

State of Gujarat & another and that of the Apex Court

in case of Jayant vs. State of M.P., the challenge to the

lodgment of the FIR is permitted to be not pressed, giving

the liberty to the present applicant to raise the legal

issues before the trial Court concerned at the time of

taking cognizance of the matter if any legal issue is raised

before the trial Court, the same shall be decided keeping

in view the provisions of law and the ratio laid down in the

above referred matters.

8. Present application stands disposed of as not

pressed. Grant of liberty as mentioned above also be not

construed in favour of the applicant.

9. The Court concerned shall, independently on the

strength of the facts and law on subject, decide the

matter. Ad-interim relief stands vacated.

10. Rule is discharged.

(SONIA GOKANI, J) M.M.MIRZA