Gujarat High Court
Rajsibhai Ramsibhai Khodbhaya vs State Of Gujarat on 22 April, 2025
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6643 of 2014
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RAJSIBHAI RAMSIBHAI KHODBHAYA & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
SHRIRAM K BHARGAW(9436) for the Applicant(s) No. 1,2,3,4,5,6,7
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/04/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973, the applicants have prayed to quash
and set aside the FIR being C.R.No.I-4 of 2014 registered with
Patanvav Police Station, Rajkot for the offences under Sections
379, 186, 114 of Indian Penal Code and sections 4(1) of the
Mines and Minerals (Development and Regulation) Act and all
the consequential proceedings arising therefrom.
2. Brief facts of the case is as under :-
2.1. That on 20.02.2014, Head Constable and other staff
members of Patanvav Police Station has taken visit of Bhadar
river and they found that the accused persons i.e. petitioners
were illegally excavating sand from River Bhadri and used
vehicle for that purpose. Hence, FIR was registered.
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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3. Learned advocate for the petitioners relying upon judgment
of Co-ordinate Bench in the case of Prahladbhai Jyantibhai
Raval v/s. State of Gujarat [2022 (0) Supreme (Guj) 1210] would
submit that in the present case, accused is charged with offence
under Sections 379, 186, 114 of Indian Penal Code, sections
4(1) of the Mines and Minerals (Development and Regulation) Act
(for short "MMDR Act").
3.1. Learned advocate for the petitioners at the outset would
submit that he is not pressing present petition so far as offence
under section 379, 186, 114 of IPC is concerned. He would
submit that in the present case, Investigating Officer after
investigating the offence has also filed charge-sheet under the
MMDR Act. He would further submit that in view of section 22 of
the MMDR Act, the Court cannot take cognizance of offence
under the Act and Rules made thereunder except in case of
written complaint filed by Authorized Officer. He would further
submit that since authorized officer has not filed written
complaint as defined under section 2(d) of Cr.P.C., Investigating
Officer cannot file charge-sheet for the offence under the MMDR
Act and the Court cannot take cognizance of said Act. Therefore,
he submits to quash the proceedings qua the offence under the
Act and Rules made therein.
4. Learned APP for the respondent State would submit that
the petitioner cannot seek quashment of FIR on this ground and
therefore submitted not to exercise inherent power of this Court
to quash the complaint and submitted to dismiss the petition.
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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5. Having heard learned advocates for the parties, what could
be notice that chief allegations against the petitioners is in
regard to illegal theft of minerals including sand from the
riverbed of river Bhadri without taking license from authority
under the MMRD Act. Property indisputably is of the State
Government. In view of that, offence under section 379 of IPC is
already registered. However, whether offence under the MMDR
Act can be taken cognizance by learned Trial Court in absence of
written complaint is issue to be decided in the matter .
6. Section 22 of the Mines and Minerals (Development and
Regulation) Act reads as under :-
"22. 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
authorized in this behalf by the Central Government or the
State Government."
6.1. Specific bar has been raised that no Court shall take
cognizance of any offence under the Act or Rules made
thereunder except upon complaint in writing made by authorized
person.
7. Complaint has been defined in section 2(d) of the Cr.P.C. It
reads as under :-
"(d)"complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report."
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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7.1. The complaint means any allegation made orally or in
writing to Magistrate with a view to his taking action under the
Code or Cr.P.C.
8. At this juncture, I may refer to judgment of Hon'ble Apex
Court in the case of State of NCT of Delhi Vs. Sanjay reported
in AIR 2015 SC 75, wherein, the Hon'ble Apex Court in identical
issue observed as under:
"66. Considering the principles of interpretation and the
wordings used in Section 22, in our considered opinion,
the provision is not a complete and absolute bar for taking
action by the police for illegal and dishonestly committing
theft of minerals including sand from the river bed.
67. The Court shall take judicial notice of the fact that over
the years rivers in India have been affected by the alarming
rate of unrestricted sand mining which is damaging the
eco-system of the rivers and safety of bridges. It also
weakens river beds, fish breeding and destroys the natural
habitat of many organisms. If these illegal activities are not
stopped by the State and the police authorities of the
State, it will cause serious repercussions as mentioned
hereinabove. It will not only change the river hydrology but
also will deplete the ground water levels.
68. There cannot be any dispute with regard to restrictions
imposed under the MMDR Act and remedy provided
therein. In any case, where there is a mining activity by
any person in contravention of the provisions of Section 4
and other sections of the Act, the officer empowered and
authorized under the Act shall exercise all the powers
including making a complaint before the jurisdictional
magistrate. It is also not in dispute that the Magistrate
shall in such cases take cognizance on the basis of the
complaint filed before it by a duly authorized officer. In
case of breach and violation of Section 4 and other
provisions of the Act, the police officer cannot insist
Magistrate for taking cognizance under the Act on the
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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basis of the record submitted by the police alleging
contravention of the said Act. In other words, the
prohibition contained in Section 22 of the Act against
prosecution of a person except on a complaint made by the
officer is attracted only when such person sought to be
prosecuted for contravention of Section 4 of the Act and
not for any act or omission which constitute an offence
under Indian Penal Code.
71. Hence, merely because initiation of proceeding for
commission of an offence under the MMDR Act on the
basis of complaint cannot and shall not debar the police
from taking action against persons for committing theft of
sand and minerals in the manner mentioned above by
exercising power under the Code of Criminal Procedure
and submit a report before the Magistrate for taking
cognizance against such person. In other words, in a case
where there is a theft of sand and gravels from the
Government land, the police can register a case,
investigate the same and submit a final report under
Section 173, Cr.P.C. before a Magistrate having jurisdiction
for the purpose of taking cognizance as provided in Section
190 (1)(d) of the Code of Criminal Procedure.
72. After giving our thoughtful consideration in the matter,
in the light of relevant provisions of the Act vis-à-vis the
Code of Criminal Procedure and the Indian Penal Code, we
are of the definite opinion that the ingredients constituting
the offence under the MMDR Act and the ingredients of
dishonestly removing sand and gravel from the river beds
without consent, which is the property of the State, is a
distinct offence under the IPC. Hence, for the commission
of offence under Section 378 Cr.P.C., 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 authorized officer for
taking cognizance in respect of violation of various
provisions of the MMRD Act. Consequently the contrary
view taken by the different High Courts cannot be
sustained in law and, therefore, overruled. Consequently,
these criminal appeals are disposed of with a direction to
the concerned Magistrates to proceed accordingly."
NEUTRAL CITATION
R/CR.MA/6643/2014 ORDER DATED: 22/04/2025
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9. Applying ratio stated herein above, filing of charge-sheet
against the petitioner under the provisions of MMDR Act is not
maintainable in view of bar under section 22 of the MMDR Act.
Therefore, charge sheet qua said offence is required to be
quashed.
10. For the reasons stated herein above, I pass the following
order :-
10.1. The petition is partly allowed. Charge-sheet and
consequential proceedings filed in FIR being C.R.No.I-4 of 2014
registered with Patanvav Police Station, Rajkot for the offence
under the provisions of Mines and Minerals (Development and
Regulation) Act and Rules made thereunder is hereby quashed.
However, it is made clear that this Court has not examined
merits of the case. It would be open for the concerned authority
to file written complaint subject to provision of law in regard to
investigation and material collected during investigation of
offence under Mines and Minerals (Development and
Regulation) Act and Rules made thereunder. If such complaint is
filed by officer as stated under section 22 of Mines and Minerals
(Development and Regulation) Act, it shall be dealt with in
accordance with law by competent Court without being
influenced by quashing of offence.
10.2 The petition stands disposed of as not pressed for offence
under section 379, 186 and section 114 of IPC.
(J. C. DOSHI,J)
SATISH
