Sri N Parthasarathi vs The State By
2021 Latest Caselaw 203 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 06TH DAY OF JANUARY, 2021

                        BEFORE

          THE HON'BLE MR.JUSTICE K.SOMASHEKAR

                  CRL.P. NO.2400/2017

BETWEEN

1.   SRI N PARTHASARATHI
     S/O LATE R.NATESHAN,
     AGED ABOUT 64 YEARS,
     PROPRIETOR: M/S MOOKAMBIKA
     STONE CRUSHER,
     BEERAHALLI VILLAGE,
     NANDAGUDI HOBLI,
     HOSAKOTE TALUK - 562 122
     BANGALORE RURAL DISTRICT,
     R/AT NO. 475, 3RD CROSS,
     11TH MAIN, HAL II STAGE,
     INDIRA NAGAR, BANGALORE - 560 008.

2.   SRI B. V. BYRE GOWDA
     S/O LATE B.N.VENKATARAMANAGOWDA,
     AGED ABOUT 52 YEARS,
     PROPRIETOR: M/S CHANAKESAVA
     STONE CRUSHER,
     RESIDENT OF
     THAMME GOWDA EXTENSION,
     HOSKOTE TOWN - 562 114
     BANGALORE RURAL DISTRICT.
                                          ...PETITIONERS

(BY SRI Y.R.SADASHIVA REDDY, SENIOR COUNSEL FOR
    SRI DEEPAK J, ADV.)
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AND

1.    THE STATE BY
      NANDAGUDI POLICE STATION
      REPRESENTED BY SPP,
      HIGH COURT OF KARNATAKA
      BANGALORE - 560 001.

2.    SRI MUNINARAYANAPPA
      S/O LATE PAPANNA,
      AGED ABOUT 54 YEARS,
      R/AT BEERAHALLI VILLAGE,
      NANDAGUDI HOBLI,
      HOSAKOTE TALUK - 562 114.
                                          ...RESPONDENTS

(BY SRI ROHITH B.J, HCGP FOR R1,
 SRI LETHIF.B, ADV. FOR
 SRI NISHIT KUMAR SHETTY, ADV. FOR R2.)


     THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE FIR IN CR.NO.57/2017 ON THE FILE OF ADDL. CIVIL
JUDGE (JR.DN.) AND J.M.F.C., HOSAKOTE, BANGALORE RURAL
DIST., BANGALORE FOR THE OFFENCE P/U/S 5, 9B OF THE
EXPLOSIVE ACT, UNDER SECTIONS 43 AND 44 OF KARNATAKA
MINOR MINERAL CONSISTENT RULE 1994, UNDER SECTIONS
4(1A), 4(1) OF MINES AND MINERALS REGULATION OF
DEVELOPMENT ACT, 1957 AND U/S 286 OF IPC, 1860.

     THIS CRL.P COMING ON FOR 'ADMISSION', THROUGH
VIDEO CONFERENCING THIS DAY THE COURT MADE THE
FOLLOWING:
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                            ORDER

The petitioners No.1 and 2 arraigned as Accused Nos.1 and

2 in Crime No.57/2017 registered by the Nandagudi Police

Station, Bengaluru, whereby these accused are seeking

quashment of the Criminal Proceedings initiated against them in

Crime No.57/2017 for the offences punishable under Sections 5

and 9B of Explosive Act, 1884, Sections 43 and 44 of the

Karnataka Minor Mineral Concession Rules, 1994, Sections 4(1A)

and 4(1) of the Mines and Minerals (Regulation of Development)

Act, 1957 and so also the offence under Section 286 of IPC,

1860 which is pending before the court of Addl. Civil Judge (Jr.

Dvn.) and JMFC, Hoskote, Bengaluru Rural District.

2. Heard the learned senior counsel Sri. Y.R. Sadashiva

Reddy for the petitioners who is appearing through video

conferencing and so also the counsel for respondent No.2 Sri.

Lethif .B & the learned Government Pleader for respondent No.1

who are present before the court physically, for quashment of

the proceedings.

3. Whereas, the learned senior counsel for the petitioners has

taken me through the initiation of the crime against the accused

by the first respondent police submitted that the petitioners are

no way concerned with the alleged crime arraigned as accused

relating to blasting of the rocks and they have entered into an

agreement between one S.L.N Company who is having the

licence for blasting of rocks and if any blast were made by the

agreement holder who is responsible for any incident, but in the

complaint a specific allegation made against the accused. In the

report, it has observed that the Government Primary School of

Huluvanahalli and Beerahalli village is located at a distance of

400 mtrs. and 500 mtrs. respectively from Chennakeshava

Stone Crushers. It has also further observed from M/s.

Mookambika Stone Crushers nearest lease boundary at a

distance of about 300 mtrs. and 500 mtrs. respectively. In

addition to the private building belongs to one Narayanappa

Oblahalli is also located at a distance of 600 mtrs. from the

nearest lease boundary. But the complainant registered a case

against the accused with the influence of persons those who are

inimical terms towards them and because of the reason the case

in Crime No.57/2017 came to be registered for the offences

which reflective in the FIR said to have been recorded by

Nandagudi P.S.

4. The second limb of the argument advanced by the learned

senior counsel is that the complaint has been filed against the

petitioners by the complainant with an ulterior motive in order to

cause some harassment to the petitioners, they were arraigned

as accused in the Crime registered by the Nandagudi Police

Station by suppressing all the reports relating to the allegation

made in the complaint and also B report filed on the force of

some sort of political factors with an only intention to cause

some harassment to the accused persons without any material

evidence.

5. Lastly, the senior counsel submitted that neither the

nearest dwellers nor the villagers have come forward to file a

complaint against the accused but only the theory has set-up for

filing a complaint against the accused before the Nandagudi

Police Station only with an ulterior motive to cause some sort of

harassment to the accused persons alleging vibration and also

causing some harassment to the dwellers in that locality. These

are all the allegations even though it has been stated in the

complaint that complainant has suppressing the report relating

to the allegation made in the complaint filed before the

Nandagudi Police Station where the crime came to be registered

against the accused persons.

6. In support of his contention the senior counsel has taken

me through the report i.e. final report submitted relating to the

letter dated 23.03.2016 addressed to one Dr.H.S. Venkatesh,

HOD RBEE, National Institute of Rock Mechanics, Bengaluru

wherein, requested him to verify scientifically the intensity and

severity of blasting in the quarries in Beerahalli, Oblahalli and

Huluvanahalli, Hoskote Taluk as such, seeking reporting of the

same. Accordingly, the inspection has been made and also

conducted a scientific survey relating to quarries in the

mentioned area and prepared a technical report which leads to

proceeding in for the harassment, this final report. The senior

counsel Sri. Y.R. Sadashiva Reddy who has specifically taken me

through that point 5.4 in the final report captioned as

"Recommended Safe Permissible Particle Velocity". In this point

wise said that considering the frequency of recorded ground

motion being greater than 8 Hz, the permissible level of ground

vibration as per DGMS (Table 1) standards happens to be 10

mm/s for domestic house/structure (Kuchha, brick and cement)

structures. In order to enforce a higher decree of factor to safety

and keeping in view the current MCD used, a conservative safe

permissible limit of 5 mm/s which recommended though the final

report consisting several sheets relating to inspection of the

quarry areas which indicates in that letter. However, this report

has not been considered by the Nandagudi Police Station but

registered a Crime against the accused for the offences which

reflected in the FIR which is nothing but creating a theory and to

set-up a theory against the accused in the alleged crime, on

these premises the learned senior counsel for the petitioners

seeks intervention by exercising the power under Section 482 of

Cr.P.C. If not certainly the gravamen of the accused would be

sufferer regarding registration of crime and then proceeding case

for investigation, mere because to proceed with the case for

investigation as akin to Section 173 (2) of Cr.P.C. which cannot

be specifically said that the accused alleged to have committed

the alleged offences. In all these premises the learned senior

counsel Sri. Y.R. Sadashiva Reddy seeking to allow the petition

and quashment of the Criminal Proceedings initiated against the

accused by registering the case in Crime No.57/2017 by

Nandagudi Police Station.

7. The learned High Court Govt. Pleader for State who has

countered to the arguments advanced by the learned senior

counsel for the petitioners by referring the final report submitted

by Dr.H.S. Venkatesh, HOD RBEE, National Institute of Rock

Mechanics. The said Dr.H.S. Venkatesh who has visited the

quarries of the mentioned area in the letter dated 23.03.2016

and the quarry using heavy blasting received public complaint

regarding blasting resulting to the cracks developed in their

houses of nearby villages. The Assistant Commissioner of

concerned sub-division was also inspected the houses affected

the villages on the ground of these public complaint. However,

the crime came to be registered based upon the complaint filed

by the complainant on 20.02.2017 wherein that one N.

Parthasarathi and B.V. Byre Gowda said to have been engaged in

these activities for crushing of rock areas which caused some

sort of health hazardous to the dwellers in the nearby village and

also causing some sort of a disease to the cattle's as there was

some explosive of a rocky powder due to blasting of rocky areas.

Unless the investigating agency proceeds with the case for

investigation in order to secure the material evidence, at this

stage it cannot be proper, for that, there are no prima-facie

materials against the accused to committing the alleged offences

which reflected in the FIR. On these premises, the learned High

Court Govt. Pleader for State submitted that at this stage it

cannot be a right for intervention by exercising the power under

Section 482 of the Cr.P.C. but can be exercised only sparingly

judicially & judiciously. However, in the instant case, the crime

came to be registered based upon the complaint filed by one P.

Narayanappa S/o late Papanna of Beerahalli village. This

complaint has filed by him on behalf of dwellers of that village.

These are the contentions taken by the learned High Court Govt.

Pleader for State while seeking for dismissal of this petition and

the investigating agency has to proceed with the case for

investigation and for laying a charge sheet as contemplated

under Section 173(2) of Cr.P.C. or if any other report as

contemplated under the Cr.P.C.

8. It is in this context of the contention taken by the learned

senior counsel relating to the case in Crime No.57/2017

registered by Nandagudi Police Station. The second respondent

who has approached the Nandagudi Police Station on 20.02.2017

and accordingly, he filed a complaint alleging that the petitioners

said to be arraigned as accused involving in the blasting out the

rocky area quarrying in survey No.25, situated in the limit of

Huluvanahalli village. Therefore, the first respondent police have

visited the spot on the basis of the complaint lodged by the

dwellers nearby the rocky area of accused Nos.1 and 2 involved

in a quarry work by blasting of the rocky in survey No.25 of the

Huluvanahalli village. The complainant in his complaint alleging

that they have to obtain licence to blast the rocks under the

Explosive Act, 1984 and also Explosive Rules of 2008, but it is

relevant to refer Section 43 and 44 of the Karnataka Minor

Mineral Concession Rules, 1984, which reads as under:-

"43.Checkposts and checking of minerals in transit:- (1) The State Government may, by notification, direct the establishment of checkpost or erection of barriers or both at such place or places as it thinks fit with a view to prevent or check unauthorised transportation of minor minerals and evasion of royalty or commission of any other offence in respect of minor minerals:

Provided that till such checkposts are established or barriers are erected in any place or places, the State Government may, notify the check posts already established or barriers erected in such place or places under the Karnataka Sales tax Act, 1957 or the Karnataka Forest Rules 1964 to be the checkposts or barriers for the purposes of these rules also.

(2) Every driver or person in-charge of a vehicle carrying minor mineral shall be in possession of a valid permit and waybill, sale or delivery note and Form-39 issued by Commercial Taxes Department containing necessary particulars in

respect of such minerals and shall produce the same before any authorised officer in-charge of a check post or barrier.

(3) Any officer authorised by the State Government in this behalf (hereinafter referred to as authorised officer) may check a vehicle carrying minor mineral at any place, and the owner or person in-charge of the vehicle shall produce the permit and other documents such as waybill etc. as demanded by the authorised officer.

(4) At every checkpost or barrier set up or notified under sub-rule (1) or at any other place, when so required by any authorised officer, the driver or any other person in-charge of the vehicle carrying minor mineral shall stop the same and keep the vehicle stationed so long as may reasonably be necessary, and allow the officer in-charge of the checkpost or the barrier or, as the case may be, the authorised officer to examine and take measurements of the minor minerals in transit and inspect all records relating to the minerals in possession of such driver or other person. The driver or other person shall, if so required by the officer in- charge of the checkpost or the barrier or the

authorised officer, give his name and address and also that of the owner or the consignor and consignee. After checking the minerals and vehicle, the officer shall put his signature and rubber stamp on the permit so as to avoid any further checking at another checkpost.

(5) If the driver or person in-charge of the vehicle fails to produce a valid permit, the officer in- charge of the checkpost or barrier may require the driver or the owner or person in-charge of the vehicle to pay penalty equal to five times the amount of royalty payable as per Schedule-2.

(6) The Officer in-charge of the checkpost or the barrier or the authorised officer may seize and confiscate any minor mineral which is under transit by a vehicle if the owner or the driver or person in- charge of the vehicle refuses to make payment as required under sub-rule(5).

(7) The officer in-charge of the checkpost or the barrier or the authorised officer shall give a receipt for having seized such minor mineral to the person from whose possession or control it is seized.

(8) Whenever an order of confiscation in respect of minor mineral seized under sub-rule (6) is made, the confiscating officer shall give an option to the owner or driver or person in charge of the vehicle to pay the amount as required under sub- rule (5) in lieu of such confiscation. In case of failure of the driver, owner or person in-charge of the vehicle to exercise such option, the confiscated material may be disposed of by the officer by auction sale:

Provided that no such minor mineral confiscated under sub-rule (6), shall be disposed of by the confiscating officer before expiry of three days from the date of such confiscation and, till such time option shall remain with the owner or person in charge of the vehicle to carry the minor mineral after paying the penalty assessed.

44.Offenses:- [(1)] Any person who contravenes the provisions of Sub-rule (1) of rule 42 shall, on conviction be punished with imprisonment for a term which may extend to one year or with fine which may extend to rupees five thousand or with both, and in the case of a continuing contravention with an additional fine which may extend to five

hundred rupees for every day during which such contravention continues after first such contravention.

(2) Any persons who undertakes any quarrying operation in respect of any minor mineral either without a licence or quarrying permit granted under these rules or in contravention of the terms and conditions of any licence or permit shall be punishable with imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both and in case of a continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.]"

9. However, Section 154 of Cr.P.C. reveals that complaint

filed by the Complainant then only to register the crime and

proceed with the case for investigation, but in the instant case,

after filing of complaint by respondent No.2 the crime came to

be registered by Nandagudi Police Station and hence, proceeded

by recording the FIR. But the letter dated 23.03.2016 addressed

by the Deputy Director, Dept. of Mines and Geology, Bengaluru

Rural District to one Dr.H.S. Venkatesh, HOD RBEE, National

Institute of Rock Mechanics, whereas in his letter requesting to

verify scientifically the intensity and severity of blasting in the

quarries in Beerahalli, Oblahalli and Huluvanahalli, Hoskote Taluk

and submitting a report due to blasting activities in these

quarries using heavy blasting. In pursuance of this letter issued

by the Deputy Director of Dept. of Mines and Geology, Bengaluru

Rural District that the report has submitted as a final report

study on ground vibration and air overpressure due to blasting

at two quarries located at Beerahalli, Oblahalli and Huluvanahalli

villages of Hoskote taluk. As already referred point 5.4 in the

final report relating to Recommended Safe Permissible Particle

Velocity. The recorded peak particle velocity versus distance is

printed in Figure 11 and it may be noted that the vibration level

attenuates to less than 5 mm/s beyond a distance of about 150

mtrs. from the blasting area.

In conclusion and recommendations in the final report it

indicates as follows:-

a. All the blasts monitored during the study period were safe

with respect to ground vibration and air overpressure.

b. The frequency of recorded ground motion is greater than 8

Hz.

c. The suggested permissible ground vibration level is 5

mm/s for the structures located in the nearby villages of the two

quarries.

d. Based on the IS Code and USBM guidelines, permissible air

overpressure level is 133 dB for the structures located in the

nearby villages of the two quarries.

e. The ground vibration due to blasting at the two quarries of

Channakeshava and Mookambika Stone Crushers attenuates

below 5 mm/s beyond a distance of 150 m from the blast.

f. Ground vibration in terms of peak particles velocity can be

estimated from the predictor equation 2 or Figure 8 for both the

quarries.

g. It is recommended that the maximum charge per delay

and total charge shall not exceed 25 kg in any of the blast.

10. In the final report Dr.H.S. Venkatesh who has visited the

blasting area and thoroughly inspected and studied the area

where the blasting of rock activity involving as alleged in the

complaint filed by the complainant and then submitted a

comprehensive report which consists several pages and

important portions have been referred as aforesaid keeping in

view the contention as taken by the learned senior counsel Sri.

Y.R. Sadashiva Reddy who represents the petitioners.

11. Section 482 of the Cr.P.C. it is saving of inherent power of

High Court exercising the jurisdiction. Under this Section the

High Court would not ordinarily embark upon an enquiry;

whether the evidence in question is reliable or not; whether a

reasonable apprehension of it acquisition could not be

sustainable but the ends of justice would better serve if the

valuable time of this court is saved by entertaining the petition

under Section 482 of Cr.P.C. It is well settled principles of law

that the inherent power under Section 482 of Cr.P.C. can be

exercised only when no other remedy is available to the litigant

and not when various specific remedies provided by the statute.

Whereas in this Section 482 of Cr.P.C. the power can be

exercised to prevent abuse of the process of the court. The High

Court in exercise of its inherent power under Section 482 of

Cr.P.C. for quashing the proceeding but there would be

justification for interference, when the complaint did not disclose

any offence or was frivolous, vexatious and or oppressive which

is found in the allegation made and the complaint filed by the

complainant against the accused persons. But it is relevant to

refer that the judgment reported in AIR 2019 Supreme Court

210, in the case of Anand Kumar Mohatta and Another Vs. State

(Govt. of NCT of Delhi) Department of Home and Another,

whereas in this judgment the Hon'ble Supreme Court have been

extensively addressed the power under Section 482 of Cr.P.C.

that quashing of FIR as inherent powers nothing in words of

Section 482 restricting exercise of power of Court to prevent

abuse of process of court or miscarriage of justice only to the

stage of the FIR. The High court can exercise jurisdiction under

Section 482 of Cr.P.C even if charge sheet is filed during the

pendency of the application. In this judgment the Hon'ble

Supreme Court has referred; AIR 2014 SC 1106 (Umesh Kumar

Vs. State of Andhra Pradesh and Another), AIR 2006 SC 2780

(Indian Oil Corporation Vs. NEPC India Ltd. And Others).

However, it is relevant to refer the judgment of AIR 1977 SC

1489 (State of Karnataka Vs. L. Muniswamy and others) where it

is held as in the exercise of this wholesome power, the High

Court is entitled to quash a proceeding if it comes to the

conclusion that allowing the proceeding to continue would be an

abuse of the process of the Court or that the ends of justice

require that the proceeding ought to be quashed. The savings of

the High Court's inherent powers, both in civil and criminal

matters, is designed to achieve a salutary public purpose which

is that a court proceeding ought not to be permitted or

persecution. In a criminal case, the veiled object behind a lame

prosecution, the very nature of the material on which the

structure of the prosecution rests and the like would justify the

High Court in quashing the proceeding in the interest of justice.

12. Whereas, in the instant case, where a criminal proceeding

has been initiated by the second respondent by filing a complaint

before the first respondent Nandagudi Police Station and based

upon his complaint the crime came to be registered but on the

cursory glance from allegations made in the complaint and so

also the report submitted by Dr.H.S. Venkatesh made an

inspection at the spot as where alleged quarry activities have

been done by the accused persons and even at a cursory glance

of materials, a criminal proceeding is manifestly attended with

malafides and where the proceeding is maliciously instituted with

an ulterior motive for wrecking vengeance on the accused with a

view to spite him due to personal grudge.

13. Whereas in the instant case, 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. Therefore, keeping in view the ratio of reliance and

also the final report submitted by Dr.H.S. Venkatesh which

consists of several sheets, prepared a report with point-wise,

there is no hesitation in quashing the FIR which registered by

Nandagudi Police Station in Crime No.57/2017 against the

accused.

In terms of the aforesaid reasons, I proceed to pass the

following:

ORDER

i) The petition filed by the petitioners/accused Nos.1 and

2 under Section 482 of Cr.P.C. is hereby allowed;

ii) Consequently, the case in Crime No.57/2017 registered

by Nandagudi Police Station is hereby quashed.

Sd/-

JUDGE

Chs CT-HR