Bharatbhai Lakhabhai Khavad vs State Of Gujarat
2022 Latest Caselaw 9930 Guj

     R/CR.MA/8614/2016                             ORDER DATED: 09/12/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/CRIMINAL MISC.APPLICATION NO. 8614 of 2016
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            BHARATBHAI LAKHABHAI KHAVAD
                          Versus
             STATE OF GUJARAT & 1 other(s)
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Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 09/12/2022

                              ORAL ORDER

1. Heard Ms. Kruti M. Shah, learned advocate for the applicant and learned APP Mr. Soaham Joshi for the respondent No.1-State.

2. By way of the present application the applicant herein has prayed for the following reliefs:

"9(A) This Hon'ble Court may be pleased to admit and allow this petition.

(B) This Hon'ble Court may be pleased to quash and set aside the FIR C.R. No. I - 15/2016 registered at Vinchhiya Police Station, District Rajkot Rural, on 30.03.2016 for the offence U/s. 379 of IPC, Rule 3, 5 and 6 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2005 and Rule 4

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

and 21 of Mines and Mineral (Regulation and Development) Act, 1957.

(C) Pending admission, final hearing and disposal of the present petition, stay the further proceedings of FIR C.R. No. I - 15/2016 registered at Vinchhiya Police Station, District Rajkot Rural, on 30.03.2016 for the offence U/s. 379 of IPC, Rule 3, 5 and 6 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2005 and Rule 4 and 21 of Mines and Mineral (Regulation and Development) Act, 1957.

(D) Your Lordships may be pleased to grant any other and further relief/s, as may be deemed just and proper in the interest of justice."

3. Briefly stated, it is the case of the applicant herein that on 16.03.2016 at about 5:40 a.m., the complainant alongwith Investigating team was going for checking near Gauraiya Village, Sukhbadar River, as per the complaint received by the Vigilance Commissioner, and, at that time, near Amrapur Village, the driver of the Dumper No. GJ-24-V-8844 was found transporting 10 metric ton simple sand without any royalty pass and therefore the vehicle was seized and kept at Vinchhiya Police Station. It was further stated that Rs.25,000/- to be recovered as penalty. The aforesaid complaint is duly produced at Annexure "A".

4. Ms. Kruti Shah, learned advocate for the applicant has vehemently submitted that as per the provisions of Rule 14 of Gujarat Mineral (Prevention of Illegal Mining Storage and Transportation) Rules, 2005, the offence punishable under the

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

rules is compoundable, and if the offence is compounded then there is a provision that the criminal proceedings may not be further proceeded with. Learned advocate for the applicant further submitted that the applicant herein is ready to pay the penalty of Rs.25,000/-.

5. It appears that pursuant to the notice issued by this Court, this Court directed the applicant herein to deposit Rs.25,000/- by an order dated 19.04.2016. It has been stated by learned advocate for the applicant that the amount of Rs.25,000/- has been duly deposited by the applicant herein. It has been further stated by learned advocate for the applicant that, as per Rule 17(2) of the said Rules, when the offender is agrees in righting to get the offence compounded then only the property seized may be produced before the authorised officer. In the present case the said opportunity of compounding the offence has not been given and directly the FIR is lodged.

6. It is apposite to refer to the position of law laid down by this Court in case of Manjulaben Ramniklal Thanki Vs. State of Gujarat in 2019 (3) GLR 1786, wherein it is held thus:

"(8) At this stage, it would be apposite to refer to the judgment rendered by the Apex Court in the case of State (NCT of Delhi) Vs. Sanjay (supra), wherein the Apex while examining the provision of section 22 and section 4 of the MMDR Act has observed thus:

"69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

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 riverbed. 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 ecosystem 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.

70. 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 and not for any act or omission which constitute an offence under Indian Penal Code."

(9) In the present case the impugned F.I.R. is filed for the contravention of provisions of section 4 and other sections of the MMDR Act and no offence under the IPC is alleged against the

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

applicant. Hence, as per the law enunciated by the Apex Court, the prohibition contained in Section 22 of the Mines and Minerals Act against prosecution of a person, except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Mines and Minerals Act and not for any act or omission which constitute an offence under the IPC.

(10) Accordingly, the impugned F.I.R. being C.R. No.I32 of 2015 registered with Kalyanpur Police Station, District Devbhoomi Dwarka as well as all consequential and subsequent proceedings arising from the impugned F.I.R. is hereby quashed. RULE is made absolute.

(11) However, it is clarified that it shall be open for the respondent - Department to file a private complaint in the court of the concerned Magistrate for the offence punishable under section 4 of the MMDR Act, through an officer authorized in that behalf, and if such complaint is filed, the concerned Magistrate shall proceed to consider the same in accordance with law.

(12) Resultantly, the connected Criminal Misc. Application No.1 of 2018 for direction moved in the main writ application stands disposed of."

7. In case of Sultan Juma Bhatti Vs. State of Gujarat passed in Criminal Misc. Application No.8594 of 2013 dated 16.08.2017, this Court in Para 8 observed thus:

"8. In the present case, during the course of hearing, it was pointed out by learned advocate Mr. Pathan that in connection with the impugned FIR, chargesheet has also been filed. But, even then, the Magistrate concerned shall not have the power to take cognizance of the offence in view of the express bar provided u/s.22 of the Act. Further, the police authority also could not insist the Magistrate concerned to take cognizance

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

under the Act on the basis of the police report. In conclusion, it would appear that though for the offences alleged under the Act or the Rules framed thereunder, it would be open to the police to register an FIR upon receipt of information of commission of such offences, upon completion of investigation, the Magistrate concerned is prevented from taking cognizance of the offences otherwise on a complaint by an authorized officer. This is, however, not to suggest that on the basis of the report of the Investigating Officer, the authorized person would not be in a position to file a complaint before the Magistrate concerned relying on such material or the report of the investigating agency."

8. It is apposite to refer to Section 378 of the Indian Penal Code which defines theft as to take dishonestly any movable property out of the possession of any person without that person's consent. Whoever commits the said offence shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

9. This Court has placed reliance on the decision of Hon'ble Apex Court in case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75, wherein, the Hon'ble Apex Court 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

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

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 and not for any act or omission which constitute an offence under Indian Penal Code.

69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.

70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State's possession without the consent, constitute an offence of theft.

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."

       R/CR.MA/8614/2016                            ORDER DATED: 09/12/2022




9.1              In the aforesaid decision, the Hon'ble Apex Court has

considered the dispute in question that whether the provisions contained in Sections 21, 22 and other Sections of Mines and Minerals (Development and Regulation) Act, 1957, operate as bar against prosecution of a person who has been charged with allegation which constitute offences under Sections 379/114 and other provisions of the IPC. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of IPC when the act of an accused is an offence both under the IPC and under the provisions of Mines and Minerals (Development and Regulation) Act. After considering the relevant provisions and precedents, the Hon'ble Apex Court held 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 Code of Criminal Procedure, 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 MMDR Act.

10. Considering the facts of the present case and the ratio laid down as referred to hereinabove, filing of the impugned complaint against the applicant herein under the provisions of

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

MMDR Act is not maintainable in view of the explicit bar under Section 22 of the MMDR Act. It is open for the respondent authority to take appropriate steps in accordance with the MMDR Act. It is required to be noted that the complaint against the applicant herein qua the provisions of IPC shall continue and further it is also open for the applicant herein to take legal recourse for the offence punishable under IPC. The observations that are made by this Court are for the purpose of arriving at the aforesaid conclusion. The concerned Court shall decide the Criminal Case pending before learned JMFC Court Vinchhiya, District Rajkot, independently, taking into consideration all the contentions that may be taken by the learned advocates appearing for the respective parties.

11. In view of above, the present application is partly allowed with the direction that the FIR being C.R. No. I - 15/2016 registered at Vinchhiya Police Station, District Rajkot Rural, on 30.03.2016 qua the provisions of MMDR Act, 1957, and the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, which has been culminated into Criminal Case No.256 of 2018 pending before learned JMFC Court Vinchhiya, District Rajkot, are hereby quashed and set aside. This Court has not opined on the merits of the case. Consequently, the proceedings of Criminal Case No.256 of 2018 pending before learned JMFC Court Vinchhiya, District Rajkot, is directed to be terminated qua the provisions of MMDR Act, 1957 and the

R/CR.MA/8614/2016 ORDER DATED: 09/12/2022

Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. However, it is clarified that the complaint is directed to be continued qua the provisions of IPC as invoked by the respondent authority by way of filing the FIR being C.R. No. I

- 15/2016 registered at Vinchhiya Police Station, District Rajkot Rural, which has been culminated into Criminal Case being Criminal Case No.256 of 2018 pending before learned JMFC Court Vinchhiya, District Rajkot.

12. The Registry is directed to refund the amount of Rs.25,000/- which has been deposited by the applicant herein vide order dated 19.04.2016 on due verification and proper identification.

13. Accordingly, the present application stands disposed of. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman