Gujarat High Court
Bhavik Kanjibhai Sanghar vs State Of Gujarat on 1 April, 2024
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.MA/14306/2021 ORDER DATED: 01/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14306 of 2021
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BHAVIK KANJIBHAI SANGHAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
NOTICE NOT RECD BACK for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 01/04/2024
ORAL ORDER
1. By invoking inherent jurisdiction of this Court under
Section 482 of the Cr.P.C. the applicant - original accused
Bhavik Kanjibhai Sanghar, has preferred this application
thereby he is seeking quashment of the Criminal Case
No.375 of 2022 pending before the Magisterial Court at
Mandvi, Kutch Bhuj.
2. Brief facts giving rise to present application are that
on 28.07.2021 based on on the secret information the
Police personnel of the Mandavi Police Station raided the
place where the illegal mining activities were undertaken
by the applicant accused and others. The role of the
applicant in the alleged offence is to the effect that for
operation of illegal mining activities he provided the
machine to the worker. After following the procedure, the
NEUTRAL CITATION
R/CR.MA/14306/2021 ORDER DATED: 01/04/2024
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FIR came to be registered with Mandavi Police Station for
the offence punishable udner Sections 379 and 114 of the
IPC and during the investigation, the provision of the
Mines and Mineral (Regulation in Development) Act, 1957
and Rules thereunder have been added and accordingly the
applicant and others have been charge-sheeted for the
offence punishable under Sections 379 and 114 of the IPC
and section 4(1)(A) and 21 of the Mines and Mineral
(Regulation in Development) Act, 1957 and Rule-3 of the
Gujarat Mineral (Prevention of Illegal Mining Storage and
Transportation) Rules 2017. On receiving the said charge-
sheet the Criminal Case No. 375 of 2022 being registered
on the file of Additional Judicial Magistrate Court at
Mandvi Gandhidham, Kutch.
3. By filing this quashing petition, the counsel appearing
for the applicant Ms. Kruti Shah has raised the technical
issue that for the offences under the provision of MMDR
Act and Rules made thereunder, the Court could not have
take cognizance of the offence as there is legal bar to take
cognizance by the Court when the charge-sheet is filed on
the basis of FIR. By drawing the attention of this Court to
the legal provision namely section 22 of the MMDR Act
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R/CR.MA/14306/2021 ORDER DATED: 01/04/2024
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she would urge that no Court shall take cognizance of any
offence punishable under the MMDR Act and Rules
thereunder except upon complaint in writing made by
person authorized in this behalf by the Central or State
Government.
4. In view of the bar as contemplated under Section 22
of MMDR Act, Ms. Kruti Shah, learned counsel has
submitted that the Court having no jurisdiction to take
cognizance offence as no complaint as provided under
Cr.P.C. is being filed by the authorized person, and
therefore, in view of the express legal bar for the
continuation of the proceedings, the proceedings qua the
applicant is required to be quashed and set aside.
5. On the other hand, learned APP Ms. Chetna Shah
would urge that despite the filing of the charge-sheet on
the basis of FIR, still Court has taken cognizance of the
offence, and therefore, instead of filing the application
before the Court concerned the applicant rushed to the
High Court, and therefore, in view of the alternative
remedy, this application is premature and may not be
entertained at this stage.
NEUTRAL CITATION
R/CR.MA/14306/2021 ORDER DATED: 01/04/2024
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6. Having regard the peculiar facts and circumstances of
the present case, this Court finds merits in the submission
raised by the learned counsel Ms. Kruti Shah. In the facts
of the present case no complaint is filed by the authorized
person. Thus, therefore, case is covered by the judgment
of the Apex Court delivered in case of Jayant and others
v. State of Madhya Pradesh (AIR Online 2020 SC 581) . In
the judgment of Jayant and others, the Apex Court has
clarified that the offence under the IPC are distinct and
different offence.
7. In view of the legal express bar as contemplated
under section 22 of the MMDR Act for taking cognizance
for the Court and ratio laid down in the case of Jayant &
others (supra) the proceedings of the Criminal Case No.
375 of 2022 arises out of the aforesaid FIR for the alleged
offences as referred above is quashed qua the applicant
accused Bhavik Kanjibhai Sanghar. However, the
authorized person as referred under Section 22 of MMDR
Act is at liberty to file a fresh proceedings including the
offence of theft in accordance with law.
(ILESH J. VORA,J)
Manoj Kumar Rai
