Bharatbhai Dhirubhai Pandit vs State Of Gujarat
2023 Latest Caselaw 8171 Guj

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     R/CR.RA/1405/2023                                 ORDER DATED: 09/11/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
            SUBORDINATE COURT) NO. 1405 of 2023

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                         BHARATBHAI DHIRUBHAI PANDIT
                                    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 S.V. PINTO

                               Date : 09/11/2023

                                ORAL ORDER

1. The applicants herein are challenging the order

dated 28.6.2023 passed by the learned Additional Sessions

Judge below Exh.1 in Criminal Inquiry no.1/23. 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

Concession Rules, 2017 (hereinafter referred to as "the

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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 applicants

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 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

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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 applicants 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 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

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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 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

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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 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.

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5. Clause (b) of sub-section (2) provides about the

conduct of the investigation and if the 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

applicants 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

completion of the investigation whichever is earlier shall

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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 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.

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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 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

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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.

(S. V. PINTO,J) H.M. PATHAN