Babubhai Kanjibhai Siroya ... vs State Of Gujarat
2021 Latest Caselaw 7263 Guj

     R/CR.MA/17322/2019                                  ORDER DATED: 30/06/2021




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC. APPLICATION NO. 17322 of 2019

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                   BABUBHAI KANJIBHAI SIROYA (PATEL)
                                Versus
                          STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MS MONALI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 30/06/2021

                               ORAL ORDER

1. The present petition is moved under Section

482 of the Code of Criminal Procedure, 1973 (for Short

'Code') with a prayer to quash and set aside the

complaint being II-C.R. No.17/2017 dated 18.05.2017

under Sections 3, 5, 6 and 13 of Gujarat Minerals

(Prevention of Illegal Mining, Transportation And

Storage) Rules, 2005 and Sections 4(1-A) and 21 of the

Mines And Minerals (Development And Regulations) Act,

1957 (for short 'MMRD Act'), registered at Gir Gadhada

Police Station, culminated as Criminal Case

No.1894/2017 before the Judicial Magistrate, First Class,

Gir Gadhada.

R/CR.MA/17322/2019 ORDER DATED: 30/06/2021

2. The F.I.R. has been lodged by respondent no.2

- Assistant Geologist, Gir Somnath Office, Gir Somnath

with allegation that excavation is being carried out in the

land belonging to the applicant. Section 379 of the I.P.C.

was prayed to be added vide application of A.S.I., Gir

Gadhada Police Station and the learned Judicial

Magistrate, Gir Gadhada by an order dated 25.09.2017

permitted to add the same in the F.I.R.

2.1 The applicant states that the F.I.R. is absolutely

false and no such offence has been committed by him. He

is residing at the place far away from the land, as noted

in the F.I.R. The applicant found some villagers near his

land and therefore had made representation to the

authorities concerned including the police to initiate

action against them, but no heed was paid to his

representation. The applicant has also challenged the

lodging of the F.I.R. by the police.

3. Mr. Dagli, learned advocate for the applicant,

submitted that the F.I.R. filed is in context of alleged

R/CR.MA/17322/2019 ORDER DATED: 30/06/2021

breach of Section 4(1-A) and 21 of the MMRD Act with

breach of Gujarat Mineral Rules. At the end of the

investigation, the chargesheet is also filed for the offence

under Section 379 of the IPC. Mr. Dagli submitted that

the MMRD Act is a special Act where the cognizance is to

be taken in accordance to the provisions of Section 22 of

the Act and such can be done only after a private

complaint by the person authorized on behalf of the

Central Government or the State Government. He

submitted that the proceedings has arisen out of an F.I.R.

filed by the police and in pursuance thereof report was

submitted under Section 173 of the Code, therefore,

stated that any cognizance on the report would be illegal,

unjust and without jurisdiction.

3.1 Mr. Dagli stated that the offence was registered

under MMRD Act and later on Section 379 of IPC was

added, which he submits, has to be proved, since the

alleged act is of excavation of minerals from the private

land of the applicant and therefore, Mr. Dagly submits

that no offence would be made out under Section 379 of

the IPC. Mr. Dagli submitted that the applicant has made

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several representations by contending that the activities

on land were by persons unknown to him and the police

or the authorities under MMRD Act, has not taken any

action towards such representation.

4. Ms. Monali Bhatt, learned APP for the

respondent State, referring to the case of Jayant And

Other Vs. State of Madhya Pradesh, reported in

(2021) 2 Supreme Court Cases 670, submitted that

the issue has now been settled and the Hon'ble Apex

Court in the said judgment referring to various case laws

has ultimately concluded in para-21, which as per Ms.

Monali Bhatt, would be useful guidance and direction to

the authorities under the MMRD Act and the police and

further to the Magistrate and the Special Court. Ms.

Bhatt, contended that the judgment of Jayant And Other

Vs. State of Madhya Pradesh (supra) would clarify the

course of action to be adopted by the authorities and the

Court concerned.

5. Perusal of the F.I.R. shows that it was lodged

on a complaint by Mr. Yogesh Savjani, Mines Supervisor,

R/CR.MA/17322/2019 ORDER DATED: 30/06/2021

Geology and Mining Department, Gir Somnath. The

complaint was addressed to the Police Inspector, Gir

Gadhada Police Station, Gir Somnath on 18.05.2017 with

the allegation of theft of mineral under Section 379 of

IPC, Sections 3, 5, 6 and 13 of Gujarat Minerals

(Prevention of Illegal Mining, Transportation And

Storage) Rules, 2005 and Sections 4(1-A) and 21 of the

MMRD Act.

5.1 The police on the complaint lodged F.I.R. under

Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of

Illegal Mining, Transportation And Storage) Rules, 2005

and Sections 4(1-A) and 21 of the MMRD Act. Thereafter,

the police made an application before the Judicial

Magistrate, First Class, Gir Gadhada Court for adding

Section 379 of IPC in the FIR which was allowed by the

learned JMFC, Gir Dadhada. Chargesheet No.I-61/2017

dated 25.09.2017 was filed before the Judicial Magistrate,

First Class, Gir Somnath, which was registered as

Criminal Case No.1894/2017 on 09.10.2017.

5.2. Challenge is given to the FIR lodged by the

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police on the ground that the authority of the Government

under MMRD Act has not filed any private complaints

before the Court and therefore no cognizance can be

taken of the alleged offence

6. Section 22 of the MMRD Act reads as under:

"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 authorised in this behalf by the Central Government or the State Government."

7. In the case of Jayant And Other Vs. State of

Madhya Pradesh (supra), the scope and the manner in

which the MMRD Act and Rules and offences under IPC

operates, have been very descriptively explained by

referring to various judgments of the Hon'ble Apex Court

and various High Courts. The Supreme Court in the said

judgment has observed regarding the procedure to be

adopted in respect of the offences under MMRD Act and

IPC.

7.1 Para 21 of the said judgment reads thus:

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"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-a-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 concerned In-charge/SHO of the police station 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 Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and Rules made thereunder.

21.3 For commission of the offence under the 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

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respect of violation of various provisions of the MMDR Act and 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 concerned In-charge/SHO of the police station to register/lodge the crime case/FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In- charge of the police station/investigating officer submits a report, the same can be sent to the concerned Magistrate as well as to the concerned authorised officer as mentioned in Section 22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer 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 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

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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 rule 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, Sections 379 and 414 IPC and the same shall be proceeded with further."

8. It has been observed by the Hon'ble Apex Court

in the referred case that the learned Magistrate in

exercise of power under Section 156(3) of the Code may

direct the In-charge/SHO of the Police Station to register

an FIR for the offences under MMRD Act and the Rules

made thereunder, however, at that stage, bar under

Section 22 of the MMRD Act shall not be attracted. It has

been clarified that the said bar under Section 22 of the

MMRD Act, would come into force only when learned

Magistrate takes cognizance of the offence under MMRD

Act and the Rules made thereunder and orders issuance

of the process / summons for the offences under MMRD

Act and Rules.

8.1 On receipt of the police report for the

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commission of the offence under IPC, the judgment of

Jayant And Other Vs. State of Madhya Pradesh (supra),

lays down that the Magistrate having jurisdiction can

take cognizance of such offence and such cognizance can

be on the police report itself, without any complaint by

the authorities under the MMRD Act and the Rules. Thus,

for the offence committed under IPC, the police would be

permitted to file the report before the concerned

magistrate having the jurisdiction to take cognizance.

8.2 Jayant And Other Vs. State of Madhya Pradesh

(supra), bifurcates the offence under IPC and directs

Magistrate to take cognizance of the criminal offence on

police report. It has been further made clear that in

respect of violation of the provision of MMRD Act and the

Rules, while the Magistrate passes an order under

Section 156(3) of the Code, and directs the SHO of the

Police Station to register the FIR, the final report in

pursuance of the said FIR would be sent to the Magistrate

concerned as well as to the authorized officer mentioned

in Section 22 of the MMRD Act, which would thereafter

permit the authorized officer to file a complaint before

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the Magistrate along with the report submitted by the

investigating officer whereof, it would be open for the

Magistrate to take cognizance for violation of the

provisions of MMRD Act and the Rules made thereunder,

and it would be at this stage be considered, that the

cognizance has been taken by the learned Magistrate.

8.3 The judgment of Jayant And Other Vs. State of

Madhya Pradesh (supra) also lays down in para 21.5, the

right of violator to get the offence compounded on

payment of the penalty as per sub-section (1) of Section

23-A of the MMRD Act. In the said para, it has been

clarified that 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, which shall

proceed further in accordance with law.

8.4 In Jayant And Other Vs. State of Madhya

Pradesh (supra), the challenge was given to the judgment

and order dated 11.05.2020 passed by the High Court of

Madhya Pradesh, Bench at Indore, whereby the Hon'ble

Apex Court had dismissed the application filed under

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Section 482 of the Code to quash the respective FIR for

the offences under Sections 379 and 114 of the IPC and

Section 4/21 of the Mines and Minerals (Development and

Regulation ) Act, 1957 and under Rule 18 of the M.P.

Minerals (Prevention of Illegal Mining, Transportation

and Storage) Rules, 2006. The Hon'ble Apex Court after

giving the reasons and concluding the procedure to be

adopted, partly allowed the appeal filed by the violators /

private appellants, to the extent of quashing the

proceedings under MMRD Act - Section 4/12 of the

MMDR Act.

9. In the case on hand, the de facto complainant is

the Mines Supervisor of Geology and Mining Department,

Gir Somnath, who had prayed for registration of the

complaint under Section 379 of the IPC and under

Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of

Illegal Mining, Transportation And Storage) Rules, 2005

and Sections 4(1-A) and 21 of the MMRD Act. The police

at that time did not include Section 379 of the IPC in the

FIR. Thereafter, police made a prayer before the learned

Judicial Magistrate, First Class, Gir Gadhda to add

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Section 379 IPC in the FIR which was allowed vide order

dated 25.09.2017.

10. Considering the facts and circumstances of the

case, in consonance to the conclusion laid down in case

of Jayant And Other Vs. State of Madhya Pradesh (supra)

in penultimate paragraph 21, the petition is partly

allowed with following order:

(i) A copy of the Chargesheet No.I-

61/2017 dated 25.09.2017 shall be sent to the

authorized officer as mentioned under Section

22 of the MMRD Act;

(ii) On receipt of such report, it shall be

open to the authorized officer to file a

complaint before the Magistrate concerned

along with such police report;

(iii) In respect of the offences under IPC,

the concerned Magisterial Court shall be at

liberty to take cognizance thereof, on the

police report, to proceed further in accordance

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with law.

12. In view of the above observations and

directions, the present application stands disposed of

accordingly.

(GITA GOPI, J.) Pankaj