Gujarat High Court

Kalia Chirag Bharatbhai vs State Of Gujarat on 19 December, 2023

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      R/SCR.A/6855/2020                                   ORDER DATED: 19/12/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6855 of 2020
                               With
          R/SPECIAL CRIMINAL APPLICATION NO. 3923 of 2020
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                          KALIA CHIRAG BHARATBHAI
                                    Versus
                             STATE OF GUJARAT
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Appearance in SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6855
of 2020:-
MR RUTVIJ S OZA(5594) for the Applicant(s) No. 1
MS. KITTY S MEHTA(7025) for the Applicant(s) No. 1
 for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
=====================================================
Appearance in SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3923
of 2020:-
MR UMANG R VYAS for the Applicant No.1
NOTICE SERVED for the Respondent No.2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 19/12/2023
                           COMMON ORAL ORDER

1. Since the prayers and issues involved in the present

petitions are almost identical in principle, hence, at the

request of learned advocates for the parties, the matters

are taken up for final consideration and Special Criminal

Application No.6855 of 2020 is considered as lead matter

and all the matters are heard together.

2. Rule. The present petition i.e. Special Criminal

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Application No.6855 of 2020 is filed for seeking following

reliefs:

"(B) That this Honourable Court may be pleased to issue appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the first information report being Crime Register No.-

11207078200394 of 2020 registered with Kankanpur Police Station, Panchmahal;

(C) Pending admission, hearing and final disposal of this petition, this Honourable Court may be pleased to stay further proceedings of FIR being Crime Register No.- 11207078200394 of 2020 registered with Kankanpur Police Station, Panchmahal qua the petitioner;

(D) xxx."

3. Brief facts of the case as per the case of the

applicant in Special Criminal Application No.6855 of 2020

are as such that first informant is serving as Geologist

in the Mines and Minerals department at Panchmahal. It

is alleged in the FIR that Flying Squad, Gandhinagar

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has received complaint regarding illegal excavation of

mineral black trap from Mahi riverbed. Therefore, in

pursuance to the aforesaid complaint of illegal excavation

on 09.01.2020 and 10.01.2020 teams of geologist from

flying squad Gandhinagar, Vadodara, Chhota Udepur,

Kheda and Panchmahal under the supervision of Senior

Geologist Mr. A.L.Uniyal with other officers has

undertake surprise checking at Riverbed of Mahi river

near village Timba Taluka: Godhara wherein they have

found certain equipment and vehicles involved in illegal

excavation of the black trap from Mahi river. Therefore,

they have assessed the illegal excavation through GPS. It

is further the case of appliant in this applicaitn are as

such that the equipments, machinery and vehicles were used in illegal excavation and therefore, the said

machineries and vehicles were seized from the spot. It

is further the case of appliant in this applicaitn are as

such that from the surprise checking at the spot it was

found that the owners of the said machineries and

vehicles have illegally excavated the black trap mineral

from Mahi river without any pass and permit and

thereby they have committed the offence. Therefore, on

17.07.2020, the first informant has lodged the aforesaid

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first information report against the owners of vehicles

and machineries for the offences punishable under

Sections 379, 114 & 120(B) of the Indian Penal Code

and Section 4(1)A, 21(1), 21(4), 21(4A) of the Mines &

Minerals (Development and Regulation) Act, 1957 and S.

3, 21 and 22(a) of the Gujarat Mineral (Prevention of

Illegal Mining, Transportation and Storage) Rules, 2017.

It is further the case of applicant in this

application are as such that the applicant is wrongly

arraigned as an accused in the aforesaid FIR as vehicle

number GJ-05- AU-7360 (Dumper) is in the name of the

applicant but the same was handed over to one

Nandaniya Arvindkumar Punjabhai on lease from 1.10.2019 and the said vehicle / dumper was in

possession and custody of aforesaid person at the time of

alleged offence. Therefore, the applicant is arraigned as

an accused in the aforesaid FIR only because in the

registration certificate of the said vehicle, the name of

applicant is shown as owner. It is further the case of

applicant in this application are as such that after

handing over the vehicle on lease to Nandaniya

Arvindkumar Punjabhai, the present applicant has shifted

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to his native place. The custody of the said vehicle is

with Nandaniya Arvindkumar Punjabhai from 01.10.2019

on monthly rent of Rs. 45,000/-. Hence, as the

registration certificate of the vehicle indicates name of

the applicant as owner and therefore only, name of the

applicant is implicated as an accused without verifying

the correct facts. It is further the case of applicant in

this application are as such that the applicant came to

know that Nandaniya Arvindkumar Punjabhai has

preferred an application to release said vehicle i.e.,

Dumper No. GJ-05-AU-7360 before the Ld. Chief Judicial

Magistrate at Godhara under section 451 of the Code of

Criminal Procedure, 1973. The applicant further states

that copy of the application preferred by aforesaid person and relevant documents were provided by the Nandaniya

Arvindkumar Punjabhai to the present applicant. Bare

perusal of the above mentioned documents would clearly

reveal that the applicant has transfer the custody of the

vehicle to Nandaniya Arvindkumar Punjabhai prior to

date of alleged offence and does not have any control

over the said vehicle. Therefore, the applicant is wrongly

arraigned as an accused. Hence, present application is

preferred.

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4. Heard Mr. Rutvij S. Oza, learned counsel for the

applicant and Mr. Dhawan Jayswal, learned Additional

Public Prosecutor (APP) for the respondent No.1 - State.

5. Learned counsel for the petitioner has heavily relied

upon the provisions of Mines and Minerals (Development

and Regulation) Act, 1957 and Sections 379, 114 & 120b

of the I.P.C. and has submitted that both the offences

cannot be tried together under the provisions of the

Mines and Minerals (Development and Regulation) Act

and Indian Penal Code. Furthermore, he has submitted

that in fact, the respective applicants in respective

applications have not played any role. In one application, the applicant has sold the vehicle in question but

somehow it is not registered in the name of subsequent

purchaser and therefore, the name of applicant is

reflected as owner of the vehicle. In another application,

the applicant has given the vehicle in question on lease

and therefore, his name is cropped in the F.I.R.

Otherwise, he has neither taken any active role in

commission of the offence. Therefore, considering this

contention only, as well as in addition to other

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contention raised in the memo of applicant, he prays

that the present applications are required to be allowed.

6. Per contra, Mr. Dhawan Jayswal, learned Additional Public Prosecutor (APP) for the respondent No.1 - State

has tendered the report dated 5.4.2021 received from the

Kankanpur Police Station, whereby it is revealed that

the submissions made by learned advocate for the

applicant are found genuine and correct and the offences

are made out against the other accused mentioned in the

F.I.R. He has further submitted that when prima facie

case is made out from the bare reading of the F.I.R.,

the Court normally should not exercise its discretion,

however, he has fairly submitted that the role of the present applicant(s) is limited to the extent that they are

at the respective time owners of the vehicles in question

and in respective applications, they have sold the vehicle

to the other party or given the vehicle in question on

lease to the other party. Therefore, he prays to pass

appropriate order after considering the factual as well as

legal aspects of the matter.

7.1 I have heard rival submissions made by respective

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parties. It is relevant to refer Sections 379, 114 &

120(B) of the Indian Penal Code and Section 4(1)A,

21(1), 21(4), 21(4A) of the Mines & Minerals

(Development and Regulation) Act, 1957 and S. 3, 21

and 22(a) of the Gujarat Mineral (Prevention of Illegal

Mining, Transportation and Storage) Rules, 2017, as

under:

"Section 379 in The Indian Penal Code:-

379. Punishment for theft.--Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 114 in The Indian Penal Code:-

114. Abettor present when offence is committed.--Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

Section 120B in The Indian Penal Code:-

1[120B. Punishment of criminal conspiracy.--

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or

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upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

Section 4(1A) of the Mines & Minerals (Development and Regulation) Act, 1957:-

[(1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.

Section 21(1) of the Mines & Minerals (Development and Regulation) Act, 1957:-

[(1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both.]

Section 4, 4(A) of the Mines & Minerals (Development and Regulation) Act, 1957:-

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[(4) 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 any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.

(4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court."

S. 3, 21 and 22(a) of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2017:

3. Restriction on possession, storage, etc. of minerals :-

No person shall (i) Win, possess, store, sell, trade, mine remove in or otherwise deal with any mineral except in accordance with the provision of the Act. (ii) Win, possess, transport, store, sell, trade, mine or remove any mineral from any place except in accordance with the terms and conditions of a registration granted by the authorised officer.

(iii) transport or carry or cause to transport or carry any mineral by any means from the place of raising to another place without being in possession of a valid transit pass/delivery challan issued by the authorised officer.

21. Depositing the sums :-

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All sums collected by compounding the offences shall be deposited under the appropriate budge head.

22. Protection of action taken in good faith :-

No suit, prosecution or other legal proceedings shall lie against any authorized person for anything which is in good faith done or intended to be done."

7.2 I have also considered the fact that from the bare

reading of the F.I.R., prima facie, the offence is made

out against the accused persons, but considering the role

of the present applicant(s), who are owners of the

vehicles in question as in Special Criminal Application

No. 3923 of 2020, the applicant is owner of the vehicle

in question and at the relevant point of time, he had

already sold the vehicle at the time of commission of offence to the other party, but the subsequent purchaser

has not entered his name with the RTO by transferring

his name in the RTO Register. It also transpires that in

Special Criminal Application No.6855 of 2020, the

applicant has leased out his vehicle to the lessee and at

the relevant point of time, he was neither in control of

the vehicle nor in possession of the vehicle when the

alleged offence was committed.

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7.3 Furthermore, even from the report of the police,

prima facie, it transpires that the involvement of the present respective applicants is to the aforesaid extent

only and not beyond that. There is neither any

antecedent nor any offence of similar in nature are

lodged against the respective applicant, who are not

found indulged in such activity before.

7.4 Considering the fact that otherwise also, even

believing the allegation made in the F.I.R. for the sake

of argument, then also the offences under the provisions

of Mines and Minerals (Development and Regulation) Act,

1957 and Sections 379, 114 & 120b of the I.P.C. cannot

be clopped together. Moreover, the prayers made in the present applications and moreover considering the fact

that the applicants have not played any active role or

have taken any active participation in the commission of

crime, continuation of present proceeding against the

respective applicants pursuant to the impugned F.I.R.

will amount to abuse of process of law and will create

undue hardship of the applicant(s).

7.5 Further, it will also be fruitful to mention the

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judgment of the Hon'ble Supreme Court in the case of

State of Haryana V/s Bhajan Lal reported in AIR 1992

SC 604, wherein the Hon'ble Supreme Court has

observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first

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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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.



                    (3)    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.

(4) 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 sec.156(2) of the Code.

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(5) Where the allegations made in the FIR or 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.

(6) 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.

(7) 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."

7.6 It is also relevant to refer to the judgment of the

Hon'ble Apex Court in the case of Inder Mohan Goswami

and Another versus State of Uttaranchal reported in

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(2007) 12 SCC 1, more particularly para : 23 & 24

thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:

[(i) to give effect to an order under the Code;]

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to

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injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

7.7 In light of the above-all facts and circumstances of

the case, I am of the opinion that this is a fit case

where the Court should exercise its discretion under

Section 482 of the Cr.P.C. in favour of the applicant(s)

and by granting the prayers prayed in the present

application(s).

8. Accordingly, the present applications are allowed to

the aforesaid extent only.

9. The impugned FIR being Crime Register No.-

11207078200394 of 2020 registered with Kankanpur

Police Station, Panchmahal as well as consequential

proceedings arising pursuant thereto are quashed and set