Vikram Meru Odedara vs State Of Gujarat
2023 Latest Caselaw 6236 Guj

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     R/CR.MA/12383/2014                               JUDGMENT DATED: 25/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 12383 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          VIKRAM MERU ODEDARA & 1 other(s)
                                      Versus
                            STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MS VRUNDA SHAH APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                  Date : 25/08/2023

                                  ORAL JUDGMENT

1. This is an application filed under Section 482 of the Code of

Criminal Procedure, 1972 (for short, 'the Cr.P.C.) praying to quash

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First Information Report (FIR) being I-C.R.No.28 of 2014

registered with Miyana Marine Police Station, District: Porbandar

for the offence punishable under Sections 4(1), 4(1) (A) of the

Mines and Minerals Act and Section 3, 5, 6 of Gujarat Mineral

Rules, 2005.

2. It is the case of the complainant, namely, Mr.Devendra S.

Bariya, who is the Royalty Inspector (In-Charge), Mines and

Minerals Department, Porbandar that when he was on surprise

checking on 7.6.2014, at Village: Bhavpara, he noted illegal mining

activity and found certain articles including the excavation

machines, at Survey No.1/19, of Village: Bhavpara. On inquiry, he

found that no lease is granted at the place. In the presence of the

Sarpanch, the said checking was made and the muddamal of

Rs.38, 93, 755/- came to be seized including the machine used for

mining activity. With the aforesaid allegation, the FIR came to be

filed, which is impugned in this petition.

3. This Court has passed an order on 11.8.2014 as under:

"The learned advocate for the applicants reliesuon the order dated 20.03.2014 passed by this Court (Coram: Anant S.Dave, J.)in Criminal Misc. Application No.7809 of 2013 and allied matters.

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In view of the above, RULE. Mr.L.R.Poojari, learned APP waives service of Rule on behalf of the respondent - State. Ad-interim relief granted earlier shall continue as interim relief till final disposal of the application".

4. That thereafter on 14th August, 2014, the charge-sheet

came to be filed being a Criminal Case No.30/2014 and

submitted before the Competent Court for the alleged sections.

5. Heard learned advocate Mr.Ashish Dagli for the petitioner

and Ms.Vrunda Shah, learned APP for the State.

6. Learned advocate, Mr.Dagli submits that the Mines and

Minerals being a Special Act, cognizance is permitted only on filing

of the compliant. The charge-sheet, which is filed, is not

maintainable in the eyes of law as same is barred under Section

22 of the Mines and Minerals Act.

7. Learned advocate, Mr.Dagli further submits that as provided

under Section 22 of the Mines and Minerals Act, the compliant is to

be filed for taking cognizance and the definition of the compliant

which is mentioned in Section 2(d) of the Cr.P.C. defines that

allegation made orally or in writing to the Magistrate with a view to

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take action under this Code, that some persons when the known or

unknown, has committed an offence but does not include a police

Report.

8. Learned advocate, Mr.Dagli submits that as the FIR is

culminated into the charge-sheet, the learned Magistrate cannot

take cognizance as it is barred under Section 22 of the Mines and

Minerals Act.

9. Learned advocate,Mr. Dagli submits that as neither the FIR

nor the charge-sheet is maintainable under the law, therefore, FIR

and subsequent proceedings is required to be quashed.

10. As against that, Ms.Vrunda Shah submits that as the Report

submitted by the Investigating officer dated 5 th May, 2023,

suggesting that present applicants are involved in the illegal mining

activity and had committed a theft of minding of Rs.38,93,755/-and

after conclusion of investigation, the charge-sheet is also

submitted to the Competent Court. It is prayed that, at this stage,

the interference is not required to be called for and therefore, prays

to dismiss the petition.

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11. Considering the submissions made by learned advocate for

the parties, it transpires that police on the complaint lodged an FIR

for the offence punishable under Sections 4(1), 4(1) (A) of the

Mines and Minerals Act and Section 3, 5, 6 of Gujarat Mineral

Rules, 2005 and thereafter, charge-sheet was filed before the

Competent Court which was registered as Criminal Case No.30 of

2014. At this stage, Section 22 is required to be referred, which is

reproduced herein below:

"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."

Reading the aforesaid provision would show that cognizance of any offence punishable under the MMDR Act or the Rules made thereunder shall be taken only upon a written complaint made by a person authorised in this behalf by the Central Government or the State Government. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would be attracted when the Magistrate takes cognizance.

12. In the case of Jayant and other V/s. State of Madhya

Pradesh (supra), the scope and the manner in which the 'MMDR

Act' and Rules and offences under IPC operates have been very

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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 'MMDR 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:

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

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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 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 Incharge 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

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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 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 subsection (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."

13. 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 'MMDR

Act' and the Rules made thereunder, however, at that stage, bar

under Section 22 of the 'MMDR Act' shall not be attracted. It has

been clarified that the said bar under Section 22 of the 'MMDR

Act', would come into force only when learned Magistrate takes

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cognizance of the offence under 'MMDR Act' and the Rules made

thereunder and orders issuance of the process / summons for the

offences under 'MMDR Act' and Rules.

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

Pradesh (supra), further clarifies that final Report in pursuance to

the said FIR would be sent to the Magistrate concerned as well as

to the authorized officer mentioned in Section 22 of the 'MMDR

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

'MMDR 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.

15. In the case on hand, complainant who is the In-charge,

Royalty Inspector, Mines and Minerals Department, Porbandar,

who lodged an FIR for the offence punishable under Sections 4(1),

4(1) (A) of the Mines and Minerals Act and Section 3, 5, 6 of

Gujarat Mineral Rules, 2005 and on conclusion of investigation,

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charge-sheet has been filed being No.30 of 2014 on before the

Competent Court. Therefore, considering the law laid down by

Hon'ble Apex Court, in the case of Jayant V/s. State of Madhya

Pradesh(Supra), the cognizance cannot be taken except on the

compliant, which is defined under Section 2(d) of the Cr.P.C.

16. Considering the facts and circumstances and considering the

law laid down by Hon'ble Apex Court in the case of Jayant and

other V/s. State of Madhya Pradesh (Supra), this application is

partly allowed with following orders:

(1) The FIR and the charge-sheet filed for the offence

punishable under Sections 4(1), 4(1) (A) of the Mines and Minerals

Act and Section 3, 5, 6 of Gujarat Mineral Rules, 2005 is hereby

quashed and set aside.

(2) It is open for the authorized officer to file a complaint before

the concerned Magistrate along with offence under Sections 4(1),

4(1) (A) of the Mines and Minerals Act and Section 3, 5, 6 of

Gujarat Mineral Rules, 2005.

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17. In view of the above observations and directions, the present

application stands disposed of accordingly.

Rule made absolute to the aforesaid extent.

(M. K. THAKKER,J) ASHISH M. GADHIYA