Ramabhai Vaghabhai Sabhad vs State Of Gujarat
2023 Latest Caselaw 5707 Guj

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    R/CR.RA/951/2023                                        ORDER DATED: 07/08/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL REVISION APPLICATION NO. 951 of 2023

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                       RAMABHAI VAGHABHAI SABHAD
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR JAY N SHAH(10668) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                               Date : 07/08/2023

                                ORAL ORDER

[1] The petitioners herein are challenging the

order dated 28.6.2023 passed by the learned

Additional Sessions Judge below Exh.1 in

Criminal Inquiry no.2/23. The order impugned

passed by the Special Court was in criminal

inquiry moved by the Royalty Inspector of

Geology Department. The complainant had moved

the application under Section 22 of the Mines

and Minerals (Development and Regulation) Act,

1957 (hereinafter referred to as "the MMDR

Act") and Rule 21 of the Gujarat Minor Mineral

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Concession Rules, 2017 (hereinafter referred

to as "the Rules"). The order impugned is

under Section 156(3) of the Code of Criminal

Procedure, 1973 directing the Police

Inspector, Vankaner Taluka Police Station to

do the needful and after investigation to

produce the report.

[2] Learned advocate Mr. Jay Shah for the

petitioners submits that the order impugned is

faulty and would be against the procedure of

the Cr.P.C. since on 17.6.2023, the court had

already taken the cognizance of the complaint

and had ordered for registration of the

complaint and thus, submits that after the

order under Section 202 of the Cr.P.C., the

learned Judge cannot go back at a

precognizance stage for any registration of

the complaint by police as would become

mandatory to file the FIR since the order is

under Section 156(3) of the Cr.P.C. Advocate

Mr. Shah submits that the complaint moved by

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the authority of the Mines and Minerals

Department was under Rule 22 of the Rules

which authorizes the competent authority to

compound the offence even prior to institution

of prosecution and thereafter and if the

offence gets compounded, no further

proceedings shall be commenced against such

person and if any proceedings have already

commenced, such proceedings would get a

quietus, as the Rule provides that no other

process to be further proceeded and if at all

the accused is in custody, he shall be

discharged and the property seized if it is

not to be retained be released. Advocate Mr.

Shah submits that the authority had moved for

compounding the offence itself gets reflected

in the impugned order. Advocate Mr. Shah

submits that since the petitioners were of the

view that there was no offence committed, he

has not adopted the option of compounding the

offence and had preferred for trial. Learned

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advocate submits that in view of Section 22 of

the MMDR Act, no court can take any cognizance

of the offence under the Act or the Rules

except upon the complaint in writing made by

the person authorizing in this behalf by the

Central Government and the State Government.

Learned advocate submits that in case when

already a complaint has been registered and

cognizance has been taken under Section 202

then no further order can be made for

registration of the complaint under Section

156(3) of the Cr.P.C.

[3] Ms. Jirga Jhaveri, learned APP submits that

the Rules are specified to bring all the

process to be undertaken by the authority

concerned at all stages and further states

that the judgment in the case of Jayant & Ors.

(supra) laid down the directions to be

followed by the police as well as the

authorities concerned and the direction is

also to the Court to adopt the procedure

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accordingly.

[4] Section 22 of the MMDR Act does not permit

registration of the FIR since the competent

authority is required to file a complaint

before the Special Court. Rule 12, of the

Rules under Chapter 5 of inspection,

confiscation and release, lays down the

procedure whenever any person raises,

transports or causes to be raised or

transported without any lawful authority any

mineral from any land and for that purpose,

uses any tool, equipment, vehicle or any other

thing, such mineral, tool, equipment, vehicle

or other thing shall be liable to be seized by

the Government in the manner specified in sub-

rule (2) of Rule 12. The authorized person on

seizing any property shall photograph the

property and place on such property a mark in

such manner as may be determined indicating

that the same has been so seized and

thereafter, issue a notice in Form-J informing

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the person from whom the property so seized

and release the property so seized upon

receipt of a bank guarantee for an equal

amount to the penalty payable under Rule 21 in

case of transportation of, or causing to

transport, mineral without lawful authority or

the written down value of the property, in

case of illegal mining or illegal storage of

mineral, with the proviso specifying that such

release under clause (a) of sub-rule (2) shall

be without prejudice to and shall not in any

manner affect the conduct of investigation and

other action contemplated under clause (b) of

sub-rule (2). The explanation provides that

seizure of property is as a security against

the amount of penalty due to the Government

and to ensure the presence of the alleged

offender before the Government if the case is

at notice stage.

[5] Clause (b) of sub-section (2) provides about

the conduct of the investigation and if the

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authorized person is satisfied that a

compoundable offence has been committed in

respect of the property, he may subject to

receipt of the compounding application, order

payment of such amount for compounding the

offence as may be deemed appropriate, which

amount if not paid within thirty days, may be

recovered by invocation of the bank guarantee

furnished under clause (a) of sub-rule (2), or

in a case where the offence is not compounded,

as in the present case, the petitioners have

preferred for not adopting the option of

compounding the offence then, in such case

preliminary investigation is to be conducted

by the authorized person. The rules do not

permit investigation by the police under the

MMDR Act. The authorized person under Section

22 of the MMDR Act is satisfied that the

offence committed in respect of the property

is not compoundable then upon expiry of 45

days from the date of seizure or upon

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completion of the investigation whichever is

earlier shall approach by way of making a

written complaint before the Court of

Sessions.

[6] The Rule itself thus provides that the

investigation is by the authority under the

MMDR Act. The investigation cannot be

conducted by the police. The responsibility of

the authority under the MMDR Act cannot be

laid down on the police by passing an order

under Section 156(3). In the case of Jayant &

Ors. v. State of Madhya Pradesh, (2021) 2 SCC

670, the Hon'ble Apex Court has laid down the

procedure to be adopted in case where there is

a criminal offence under the IPC and a

complaint which is under the MMDR Act. It is

mandatory that if a complaint is made under

the MMDR Act the complaint would be filed by

the authority with the designated court under

the MMDR Act. Thus, no further direction can

be given to the police for the investigation

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since the investigation is the prerogative of

the authority. Here the court had already

taken the cognizance of the complaint and had

passed an order for the court inquiry.

[7] The order impugned reflects the provision of

Section 319 of the Cr.P.C. The process and

procedure are laid down in the MMDR Act and

the Rules. The investigation is to be made by

the authority as provided under Section 22 of

the MMDR Act and it is only on the complaint

of the person authorized on behalf of the

Central Government or the State Government

that the court can take cognizance of the

offence. Thus, it is only the authority

concerned of the Central Government or the

State Government of the MMDR Department which

has right to investigate the matter. Even if

any further evidence are required to be

brought on record then it is only the

authority of the department who has right to

bring any further evidence on record. Even if

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the Court feels that some other persons are

required to be proceeded then such facts were

required to be brought to the notice of the

authority concerned, while no order can be

passed under Section 319 Cr.P.C. directing the

police to file FIR under Section 156(3) of the

Cr.P.C. Hence the impugned order dated

28.6.2023 passed by the learned Additional

Sessions Judge is illegal and contrary to the

provisions of the MMDR Act and the Rules and

therefore, the same is quashed and set aside.

[8] Accordingly, the present application stands

disposed of.

(GITA GOPI,J) Maulik