Gujarat High Court

Noormahmad (Nurabhai) Kalubhai ... vs State Of Gujarat on 5 January, 2023

Bench: Gita Gopi

   R/CR.MA/13794/2020                                     ORDER DATED: 05/01/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION NO. 13794 of 2020
                             With
       CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
                              In
         R/CRIMINAL MISC.APPLICATION NO. 13794 of 2020
                             With
         R/CRIMINAL MISC.APPLICATION NO. 16205 of 2020
                             With
       CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
                              In
         R/CRIMINAL MISC.APPLICATION NO. 16205 of 2020

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              NOORMAHMAD (NURABHAI) KALUBHAI SUMRA
                             Versus
                       STATE OF GUJARAT
================================================================
Appearance:
MR IH SYED, SENIOR COUNSEL with MR R.K.MANSURI(3205) for the
Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
================================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 05/01/2023

                              COMMON ORAL ORDER

1. RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent State.

2. The above applications have been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the following First

R/CR.MA/13794/2020 ORDER DATED: 05/01/2023

Information Reports (FIR) and the proceedings initiated in pursuant thereto :-

a) II-C.R. No.3024 of 2011 registered with Sutrapada Police Station, Junagadh for the offences punishable under Sections 379 and 114 of the Indian Penal Code, under Sections 3, 5, 6, 8 and 13 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage Rules, 2017) and under Section 4(1)(a) of the Mines and Mineral (Regulation and Development) Act, 1957. The said FIR culminated into Criminal Case No.2061 of 2012 which is pending in the Court of the learned Judicial Magistrate First Class (JMFC), Sutrapada.

(b) II-C.R. No.3025 of 2011 registered with Sutrapada Police Station, Junagadh for the offences punishable under Sections 379 and 114 of the Indian Penal Code, under Sections 3, 5, 6, 8 and 13 of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage Rules, 2017) and under Section 4(1)(a) of the Mines and Mineral (Regulation and Development) Act, 1957. The said FIR culminated into Criminal

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Case No.2060 of 2012 which is pending in the Court of the learned Judicial Magistrate First Class (JMFC), Sutrapada.

3. Learned Senior Counsel for the applicants Mr. I.H. Syed has relied on the judgment of the Hon'ble Apex Court in the case of Jayant and Others v. State of Madhya Pradesh reported in 2021 2 SCC 670 to submit that the impugned First Information Reports would not be maintainable and the subsequent proceedings are required to be quashed and set aside since the learned JMFC, Sutrapada would not have any jurisdiction / authority to take cognizance in the matter as the proceedings are barred before the learned JMFC as Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to in short as 'the MMDR Act') provides for lodging of a private complaint under Section 2(g) of the Code of Criminal Procedure, 1973 (hereainafter referred to in short as 'Cr.P.C.') by an authorized officer under the Act. It is submitted that the MMDR Act would prevail over the provisions of the Cr.P.C. and hence, no Court can take cognizance

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of the offence punishable under the MMDR Act or Rules on First Information Report filed at a Police Station. Thus, it is further submitted that the both the First Information Reports are required to be quashed and set aside.

4. On the other hand, learned Additional Public Prosecutor Mr. Dhawan Jayswal submitted that there is a settled position of law in the above case of Jayant and Others (supra). It is further submitted that necessary and useful information are required to be provided to the authorities under the MMDR Act and even to the police and the concerned Magistrate since by the Notification of the Legal Department, Sachivalaya, Gandhinagar dated 29.07.2022, the designated Court under the Act has to try the offences as a Special Court for the offences in contravention of the provisions of sub-section (1) or sub-section (1A) of Section 4 of the MMDR Act.

5. A perusal of the First Information Reports (FIR's) show that both the FIR's are registered at the Sutrapada Police Station, Junagadh. The FIR bearing

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II-C.R. No.3024 of 2011 came to be filed by Kanchanben Bhagwanbhai Jadav, the Sarpanch of Village Dhamrej while the complainant in FIR bearing II-C.R. No.3025 of 2011 is the Royalty Inspector, Veraval - Mr. J.R. Patel.

6. Qua FIR bearing II-C.R. No.3024 of 2011, as per the complainant, the Sarpanch, the Hon'ble Minister of Parliament on 14.02.2011 had certified about the illegal excavation of mines and minerals in Survey No.79 at Village Dhamrej, Taluka Sutrapada and under the instructions of the Geologist on 09.03.2011 alongwith the staff as well as Talati cum Mantri, Detroj, the Sarpanch had accompanied the panchas for joint investigation on the Plot where it was revealed that illegal and unauthorized excavation of the mines and minerals was being done by the accused and the said act of excavation and transportation was recorded by the Rojkaam and it is alleged that at different places there were huge quantities of mines and minerals which would be about 3468 metric tonnes and thus, there was offences punishable under Section 3 of GMMCR 2010, alongwith Sections 4(1) of the MMDR Act read with

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the Rules of Coastal Regulation Zone (i.e. CRZ) as well as the Gujarat Panchayats Act.

7. Qua FIR bearing II-C.R. No.3025 of 2011, the Royalty Inspector on having receiving an application from the Member of Parliament informing about the illegal mining activity at Village Dhamrej, Taluka Sutrapada in Survey No.172, which is stated to be Government Gauchar land, the geologist alongwith the Sarpanch of Village Kamrej had found the illegal and unauthorized excavation of minerals which was noted in the panchnama. According to the FIR, in Survey No.172 it was noted that minerals which had been excavated illegally was calculated as 320 metric tonnes. Thus, the offences were found to be punishable under the MMDR Act.

8. Section 22 of the MMDR Act reads as under :-

"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."

9. In the case of Jayant and Others (supra), the Hon'ble Apex Court laid down the scope and manner in

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which the provisions of the Act has to be implemented. In Paragraphs 21 to 21.5 of the judgment, it was held as under :-

21. After giving our thoughtful consideration in the matter, in the light of the relevant provision 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 In-charge/SHO of the police Station concerned 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 the Rules made thereunder and orders issuance of process/summons for the offences under the MMDR Act and the Rules made thereunder.

21.3. For commission of the offence under 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 the Rules made thereunder.

21.4. That in respect of violation of various provisions of the MMDR Act and the Rules made thereunder,

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when a Magistrate passes an order under Section 156(3) of the Code and directs the In-charge/SHO of the police station concerned to register/lodge the crime case/FIR in respect of the violation of the various provisions of the Act and the Rules made thereunder and thereafter after investigation the In-charge of the Police Station/Investigating Officer concerned submits a report, the same can be sent to the Magistrate concerned as well as to the authorised officer concerned as mentioned in Section 22 of the MMDR Act and thereafter the authorised officer concerned may file the complaint before the learned Magistrate alongwith the report submitted by the Investigating Officer concerned and thereafter, it will 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 the 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 Rules made thereunder so compounded. However, the bar under sub-section (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.

10. Here in this case, the complaints have been registered at the Sutrapada Police Station, Junagadh and in view of the First Information Reports so

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lodged, the cognizance of the matter has been taken by the learned JMFC where under Section 22 of the MMDR Act, taking cognizance of the matter is specifically barred and the Section provides for a complaint to be given in writing by a person authorized by the Central or State Government. The said complaint would thus have to be filed before the Special Court constituted in accordance with Section 20(b) of the MMDR Act. It has already been brought to the notice of this Court by the learned Additional Public Prosecutor that the Special Court has been notified by the Legal Department, State of Gujarat on 29.07.2022.

11. The Hon'ble Apex Court in the case of Jayant and Others (supra), after giving a thoughtful consideration to the provisions of MMDR Act and the Rules made therein when compared with Cr.P.C. and the Indian Penal Code, held that the learned Magistrate could direct the concerned Incharge / SHO of the Police Station to lodge the FIR for the offences punishable under the MMDR Act and the Rules made therein in its exercise of powers under Section 156(3) of Cr.P.C. and in that circumstances, the bar under

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Section 22 of the MMDR Act could not be attracted but for the commission of offences under the Indian Penal Code, on receipt of the Police Report, the learned Magistrate having jurisdiction can take cognizance of the said offences on receipt of the complaint that may be filed by the authorized officer for taking cognizance in respect of the provisions of MMDR Act and Rules. The law thus, clarifies under the MMDR Act, the Special Court would be authorized to conduct proceedings as no Court would be permitted to take cognizance of the matters except on a complaint given in writing by an authorized person of the Central or State Government.

12. Here in both the cases, no such authority has been granted to the defacto complainant and further, the private complaint would lie at the Special Court and not before the Police Station.

13. Reference is also required to be made to Section 23A of the MMDR Act which is with regard to compounding of offences where any offence punishable under this Act or any rule made thereunder may, either before or after the institution

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of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the Court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. The very provision thus, clarifies that the authorized person may compound the offence and there may not be any prosecution on payment of the sum so specified.

14. In the case of Jayant and Others (supra), the Apex Court has clarified that sub-section (2) of Section 23A of the MMDR Act shall not be applicable for the offences punishable under sections of the Indian Penal Code such as Sections 379 and 441 and has observed in the matter, the offences under the MMDR Act or Rules thereunder and the offences under the Indian Penal Code are distinguished and different offences.

15. In view of the above, considering the facts and circumstances of the case, the ratio laid down in the case of Jayant and Others (supra) as also the findings in the penultimate paragraphs of the referred decision, the applications are partly allowed. The

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copy of the charge-sheet/s in connection with the impugned First Information Reports bearing II-C.R. No.3024 of 2011 and II-C.R. No.3025 of 2011 registered with Sutrapada Police Station, Junagadh be sent to the authorized officer appointed under Section 22 of the MMDR Act. On receipt of such report, the charge-sheet/s which shall be in possession of the authorised officer shall file a complaint before the concerned Special Court, if deemed fit.

16. In respect of the offences under the Indian Penal Code, the concerned Court of the learned Magistrate shall be at liberty to take cognizance of the Police Report and shall proceed further in accordance with law. Rule is made absolute to the aforesaid extent. Direct Service is permitted.

17. In view of the order passed in the main matters, no orders are required to be passed in connected matters (for stay) and the same stand disposed of accordingly.

Sd/-

(GITA GOPI, J) CAROLINE