Chetanpari Keshupari Gosai vs State Of Gujarat
2021 Latest Caselaw 15289 Guj

     R/SCR.A/6733/2017                                   ORDER DATED: 29/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 6733 of 2017

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                           CHETANPARI KESHUPARI GOSAI
                                     Versus
                           STATE OF GUJARAT & 3 other(s)
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Appearance:
MR ZUBIN BHARDA WITH MR UMANG R VYAS(5595) for the Applicant(s)
No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 29/09/2021

                                   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 C.R. No. I - 71 of 2017 registered at Wadhvan Police Station for the offences punishable under Sections 379 and 114 of the Indian Penal Code and Sections 4(1), 4(1)(A) and 21 of the Mines And Minerals (Development And Regulations) Act, 1957, (for short 'MMRD Act') and Rules 3, 5, 8, 13, 17 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005.

2. Mr. Zubin Bharda, learned advocate for the petitioner has submitted that the petitioner is serving in Department of Police of Gujarat State since 1998 and he has joined the police department as Unarmed Police Constable and his unblemished entire service had been in the Surendranagar District. It is

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stated that the respondent No.2 complainant is also serving in Police Department in Rapid Response Cell (R.R. Cell), Rajkot Range.

2.1 Learned advocate for the petitioner has submitted that, as per the FIR, the police officers had received secret information when they were patrolling at Surendranagar town, and as per the complainant, the secret information was to an effect that illegal mining activity is being carried out near the river bank of River Bhogavo, near agricultural farm of Bachubhai Gadhvi, Wadhvan, and upon receipt of such information, the officers of R.R. Cell, Rajkot Range, have raided the place of offence and the panchnama was drawn where two Tractor Trolleys and a Hitachi Machine were seized which are doing illegal sand mining, and from other place, six Trucks (Dumper) and a Hitachi Machine were seized under the allegation of illegal mining activities. Learned advocate for the petitioner submitted that the R.R. Cell had arrested the respective drivers of the vehicles as well as other accused persons who were alleged to be present at the place of offence, and as per the case of the prosecution, the present petitioner being in the police department has helped the offenders and further allegation is that he is the owner of one Hitachi machine which was seized during the course of raid.

2.2 Learned advocate for the petitioner submitted that the petitioner is serving in the Department of Police of Gujarat State since 1998 as Unarmed Police Constable and his entire service had been in Surendranagar District. The petitioner is having blotless career except one instance of facing departmental enquiry wherein the enquiry was ordered to be

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closed down by imposing penalty of Rs.100/- in the year 2014.

2.3 Learned advocate for the petitioner submitted that the respondent No.4 - Shri D.N. Patel, Dy. Inspector General of Police, Rajkot Range, was holding the post of Suptd. of Police, Surendranagar District at the relevant point of time and had visited Lakhtar Police Station where the petitioner was serving as Police Constable, and said Shri D.N.Patel, the then Suptd. of Police had some personal grudge with the petitioner, and keeping in mind the personal issue with the petitioner, had transferred the petitioner at Zinjuwada Police Station and Wadhvan Police Station and also ordered enquiry with regard to the involvement of the petitioner's family member in carrying out the activities of sand and holding the trucks and other vehicles.

2.4 It is submitted by learned advocate for the petitioner that the parents of the petitioner are doing the business activity of carting of the minor minerals since 2007 and the petitioner does not have any direct or indirect connection with the business transactions and business activity of the parents, whose business activity is legal and are the tax payers of the country and also having requisite licenses from the competent authorities. It is stated by the learned advocate for the petitioner that, since March 2016 Shri D.N. Patel had been promoted and appointed as Deputy Inspector General of Police, Rajkot Range, and the Surendranagar District would fall under the direct control and supervision of Rajkot Range, D.I.G., and taking the advantage of the superior post, said Shri D.N.Patel had again started to harass the petitioner and targeted him by transferring him four times to various police

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stations without there being any fault on the part of the petitioner. It is submitted that the respondent No.4 Shri D.N.Patel on the basis of an anonymous application had initiated disciplinary proceedings and departmental enquiry against the petitioner with the same set of facts of the complaint which he had faced in the earlier departmental enquiry though it had been specifically instructed by the department not to initiate any departmental enquiry on the basis of anonymous application vide Government circular dated 28.03.2013.

2.5 It is submitted by learned advocate Mr. Zubin Bharda for the petitioner that the said circular has been over-looked by the respondent No.4, and just to harass the petitioner, baseless departmental enquiry has been initiated. Learned advocate for the petitioner submitted that that the respondent No.4, though served, has not filed any reply and the facts stated in this behalf has remained uncontroverted.

3. The present petition is for quashing and setting aside the complaint being C.R. No. I - 71 of 20177 registered at Wadhvan Police Station for the offences punishable under Sections 379 and 114 of the Indian Penal Code and Section 4(1), 4(1)(A) and 21 of the Mines And Minerals (Development And Regulations) Act, 1957 (for short 'MMRD Act') and Rules 3, 5, 8, 13, 17 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005. Learned advocate for the petitioner has further submitted that the present petitioner has been falsely implicated in the matter since the family members are in the business of mines and minerals and the FIR is filed with a malafide intention to take vengeance,

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and thus, he submitted that the continuation of criminal proceedings is absolutely an abuse of the process of law since the petitioner has no nexus to the alleged offence as stated in the FIR. Learned advocate for the petitioner further stated that the panchnama was completed at the place of offence at 23:15 hrs. on 28.08.2017 and the complaint which was registered with Wadhvan Police Station at 4.45 hours on 29.08.2017 though the distance between the place of offence and the police station is hardly about 10 minutes only, therefore, this fact itself suggest that the petitioner has been falsely implicated in the matter.

3.1 Mr. Zubin Bharda, learned advocate for the petitioner by placing reliance on the R.C. Book of the vehicle in question (Vehicle Model: Diesel Hitachi Ex110) bearing registration No. GJ-02R-5698 has submitted that the vehicle in question is of the ownership of M/s. K.M. Patel and the maker of vehicle is Tata Motors Limited; he has procured the copy from RTO Mehsana website and the registration of the vehicle is dated 05.11.2004 which also shows that the said vehicle is in the name of M/s. K.M. Patel, and per the FIR, the person who was carrying out illegal sand mining activity by filling the sand in the Hitachi machine of Tata Company is Sonusingh Tilakrajsingh Sardar, and the police inquired from him, where he stated before the police that said Hitachi Machine belongs to Chetanbhai Policewala @ Guru. Learned advocate for the petitioner further submitted that on this allegation the present petitioner was arraigned as accused. The RTO certificate shows that the said Hitachi Machine of Tata Motors Limited with registration No. GJ-02R-5698 is in the name of M/s. K.M. Patel and Co. Thus, it appears that the police has even not

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verified the said fact.

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 others Vs. State of Madhya Pradesh (supra) would clarify the course of action to be adopted by the authorities and the Court concerned

5. The judgment referred to hereinabove, the Hon'ble Apex Court has observed that by way of Section 22 of MMRD Act, 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. Here in this case the FIR has been registered by Dharmendrasinh Digubha Chudasma, Buckle No. 1212, RR Cell, Rajkot Range. The very law under MMRD Act clearly lays down that such FIR cannot be filed by an individual and any such complaint under MMRD Act should be in writing by an authorised person of the Central Government or the State Government. In the case of Jayant Etc. v. 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

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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. Para 21 of the said judgment reads thus:

"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:

i) 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;

ii) 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;

iii) 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 respect of violation of various provisions of the MMDR Act and Rules made thereunder; and

iv) 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

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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.

v) in a case where the violator is permitted to compound the offences on payment of penalty as per sub-section 1 of Section 23A, considering sub-section 2 of Section 23A 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 rule made thereunder so compounded. However, the bar under sub-section 2 of Section 23A shall not affect any proceedings for the offences under the IPC, such as, Sections 379 and 414 IPC and the same shall be proceeded with further."

5.1 It has been observed by the Hon'ble Apex Court in the above-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

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MMRD Act and Rules.

5.2 On receipt of the police report for the 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.

5.3 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 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.

5.4 The judgment of Jayant And Other Vs. State of Madhya

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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.

5.5 In Jayant and Others 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 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.

5.6 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration

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wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

          (e)       where the allegations made in the FIR or






      R/SCR.A/6733/2017                                        ORDER DATED: 29/09/2021

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;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

                (g)      where    a   criminal         proceeding     is    manifestly
               attended       with      mala          fide   and/or        where        the
               proceeding is maliciously                instituted with an ulterior
               motive for wreaking vengeance on the                   accused          and

with a view to spite him due to private and personal grudge."

6. In view of the discussions made hereinabove and considering the decisions of the Hon'ble Supreme Court in the case of Jayant Etc. v. State of Madhya Pradesh (supra), it is required to be noted that the procedure for registration of FIR has been laid down in the aforesaid decisions, and therefore, at present this Court does not want to make any comment on the maintainability of the FIR, but, keeping in view the parameters laid down in State of Haryana v. Bhajanlal and others (supra), the FIR taken at face value does not constitute any offence, thus further proceeding would be unwarranted trial against the present petitioner which would create hardship and thus taking into consideration the facts

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and circumstances, the impugned FIR against the present petitioner is an abuse of the process of law.

7. For the foregoing reasons, the application is allowed. The impugned FIR being First Information Report vide C.R. No. I - 71 of 2017 registered at Wadhvan Police Station qua the present petitioner is quashed and set aside. Rule is made absolute to the aforesaid extent.

(GITA GOPI,J) A.M.A. SAIYED