Karnataka High Court

Gouse Peer vs State Of Karnataka on 12 January, 2021

Author: K.Somashekar

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 12TH DAY OF JANUARY, 2021

                        BEFORE

      THE HON'BLE MR. JUSTICE K.SOMASHEKAR

        CRIMINAL PETITION No.2719/2017

BETWEEN:
Gouse Peer,
S/o. Pyarejan,
Aged about 53 years,
R/at No.6/1, 1st 'A' Cross,
Rahamathnagara, R.T.Nagara,
Bengaluru - 560 032.                       ...Petitioner
(By Sri. Parashuram R. Hattarakihal, Advocate)

AND:

1.    State of Karnataka
      By Dobbespet Police Station,
      Nelamangala Taluk - 562 111,
      Rep. by SPP, High Court Buildings,
      Bengaluru - 01.

2.    Sunil
      S/o. Nataraju,
      Aged about 24 years,
      R/at 'Srirama Nilayai',
      4th Cross, Vidyanagara,
      Tumakuru District.              ... Respondents

(By Smt. Rashmi Jadhav, HCGP)
                               2




     This Criminal Petition is filed under Section 482
of Cr.P.C., praying to quash the proceedings in
C.C.No.1274/2016 pending on the file of the Civil
Judge and JMFC, Nelamangala, insofar as petitioner is
concerned.

      This Criminal Petition coming on for Admission,
this day, the Court made the following:

                          ORDER

Petitioner-Sri. Gouse Peer, who is arraigned as

accused No.2 has sought for quashing of the criminal

proceedings initiated against him in

C.C.No.1274/2016 for the offences punishable under

Sections 42, 43(5), 3(1), 44(1), 44(2) of the

Karnataka Minor Mineral Concession Rules, 1994

(hereinafter referred to as 'KMMC Rules', for short);

Sections 4(1), 4(1A), 21 of the Mines and Minerals

(Development and Regulation) Act, 1957 (hereinafter

referred to as the 'MMDR Act', for short) so also

offence under Section 379 of IPC pending before the

Court of Civil Judge & JMFC, Nelamangala.

2. Heard Sri. Parashuram R. Hattarakihal,

learned counsel for the petitioner and Smt. Rashmi

Jadhav, learned HCGP for respondent No.1.

3. Brief facts of the case are as under:

It is transpired from the complaint that

respondent No.1-Dobbespet Police received a credible

information on 03.10.2015 at around 12.15 A.M. that

accused No.1-Narayanappa and others, who are the

owners of Mahendra MN-25-lorry bearing registration

No.KA-52-6915 and Hitachi machine and Hero Honda

Splendor Plus motor cycle bearing registration No.KA-

06-EH-5760 were removing and transporting stone

blocks in the land bearing Sy.No.9/P1, Government

gomala land of Averahalli Village, Sompura Hobli,

Nelamangala Taluk, Bengaluru Rural District. On

receipt of the information, P.S.I./Cw-16 of Dobbespet

Police Station formed the team consisting of his staff

members and went to the spot and seized the

aforesaid vehicles by drawing the mahazar between

01.00 A.M. and 02.00 A.M. in the presence of panch

witnesses. Subsequent to seizer of the aforesaid

vehicles which are mentioned in the Property Form

and drawing up of the mahazar, the respondent No.1-

police registered the FIR in Crime No.266/2015.

Thereafter, the Investigating Officer has taken up the

case for investigation and thoroughly investigated the

case. During investigation, Investigating Officer has

recorded the statements of Cw1 to Cw16. Cw16 is the

Police Inspector. Subsequent to completion of

investigation, the Investigating Officer has laid the

charge sheet against the accused before the Court of

the Civil Judge & JMFC, Nelamangala in

C.C.No.1274/2016 for the offences punishable under

Sections 42, 43(5), 3(1), 44(1), 44(2) of the KMMC

Rules; Sections 4(1), 4(1A), 21 of the MMDR Act, for

short) so also offence under Section 379 of IPC.

4. Learned counsel for the petitioner, who is

physically present before the Court, during the course

of his arguments has urged that initially, petitioner -

Sri. Gouse Peer, who is arraigned as accused No.2 in

the aforesaid charge sheet, was the owner of

Mahendra MN-25-lorry bearing registration No.KA-52-

6915, which was purchased by him by availing loan of

Rs.6 lakhs from Srirama Finance Co., Ganganagara,

Bengaluru. In support of this contention, learned

counsel has produced copy of the Registration

Certificate vide Annexure - C.

5. Respondent No.2-Sri.Sunil, approached the

petitioner herein and put an offer to purchase the said

lorry. Accordingly, there was a discussion between

petitioner/accused No.2 and respondent No.2 and

after discussion, the petitioner herein agreed to sell

the said lorry in terms of the agreement of sale dated

20.05.2015 for Rs.13,80,000/- to respondent No.2.

Thereafter, respondent No.2 took possession of the

aforesaid lorry by receiving Delivery Note in favour of

him. In support of this contention, the learned

counsel has produced copies of the Agreement of Sale

and Delivery Note vide Annexures - D and E.

6. After taking possession of the aforesaid

lorry, which is alleged to be involved in the offences

mentioned in the charge sheet, respondent No.2 did

not discharge the loan with the above finance

company i.e., Srirama Finance Co., as agreed by him.

Hence, the said finance company issued demand

notice to the petitioner, to discharge the loan. Copy

of the demand notice is also produced by the counsel

vide Annexure - J.

7. The second limb of argument advanced by

the learned counsel for petitioner is that even though

there is no sufficient material to show the involvement

of the petitioner herein in the alleged offences, only to

set up a theory for implicating the petitioner, charge

sheet has been laid against the petitioner by

respondent No.1-police/Investigating Officer. Learned

counsel has particularly taken the Court through

Section 22 of the MMDR Act, relating to cognizance of

the offence, which reads as under:

"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."

In support of his contention, the learned counsel

has placed reliance on the decision in the case

R.M.Siddaroodaswamy Vs. The State of

Karnataka by Sub-Inspector of Police, Thorangal

P.S., Bellary District, reported in 2015(3)

Karnataka Civil & Criminal Reporter 2736 and

submits that the facts and circumstances of the

aforesaid case are squarely applicable to the facts and

circumstance of the present case and on this premise,

seeks for allowing the petition by quashing the

criminal proceedings initiated against the petitioner in

C.C.No.1274/2016.

8. Per contra, learned HCGP for respondent

No.1 has taken me through the ingredients of Section

379 of IPC and submitted that the petitioner herein

was also participating with other accused in the

commission of the offence of theft of property as

indicated in the Property Form, which is said to have

been seized by the Investigating Officer.

9. Learned HCGP further submits that though

respondent No.1-PSI, Dobbespet Police Station, is not

a Competent Officer to register the case under the

aforesaid MMDR Act and KMMC Rules, ingredients

alleged in respect of the offence under Section 379 of

IPC in the charge sheet is intact and the petitioner and

other accused persons are required to face trial before

the Court having jurisdiction to proceed further,

whereunder, prosecution has to proceed with the trial

by examining prosecution witnesses and also by

providing an opportunity to the accused relating to the

defence.

10. On all these premise, learned HCGP for

respondent No.1 submitted that merely because

respondent No.1-Dobbespet Police, who is the

Investigating Officer, has laid the charge sheet against

the petitioner and other accused persons, is not a

competent authority to register the FIR and proceed

with the case for investigation and to lay the charge

sheet under the MMDR Act and KMMC Rules, it cannot

be a ground to quash the entire criminal proceedings

initiated against the petitioner and other accused

persons by exercising power under Section 482 of

Cr.P.C.

11. Lastly, learned HCGP for respondent No.1

submitted that though respondent No.1/police is not

the competent authority to register the FIR and

proceed with the case for investigation and to lay the

charge sheet under the MMDR Act and KMMC Rules,

but, liberty is always vested with the Competent

Authority to register the complaint in accordance with

law.

12. On all these premise, learned HCGP

submits that quashing of the proceedings as sought

for by the petitioner, does not arise as the scope of

Sections 154 and 155 of the Cr.P.C. and Section 379

of IPC has a bearing on the petitioner and other

accused persons, who are required to face the trial.

13. In this context, taking into consideration all

the contentions taken up by the learned counsel for

the petitioner and so also the counter made by the

learned HCGP, it is seen that there is no dispute that

the criminal proceedings has been initiated by

respondent No.1-police and FIR in crime No.266/2015

came to be registered against the petitioner and other

accused persons for the aforesaid offences, based on

the credible information received by the P.S.I. of

respondent No.1-Dobbespet Police Station.

14. The learned counsel for petitioner has

facilitated the order rendered by the co-ordinate

Bench of this Court in Crl.P.No.7636/2016 dated

14.06.2017 wherein it is held that there is no doubt

that when the police officer receives an information

with regard to cognizable offence, then there is no

need for the police officer to take any permission from

the Magistrate under Section 155(2) of Cr.P.C.

However, if the information is only with reference to

non-cognizable offence and police officer wants to

investigate the matter, then it is mandatory under

Section 155(2) of Cr.P.C. that the police officer shall

refer himself to the Magistrate and take permission for

the purpose of investigating the matter.

15. In the instant case, subsequent to drawing

up of the mahazar by Cw16, who is the Investigating

Officer, FIR has been registered as contemplated

under Section 154 of Cr.P.C. and thereafter, charge

sheet has been laid before the Court of Civil Judge &

JMFC, Nelamangala. Though respondent No.1-police

do not have any power or competence to register the

crime against the accused for commission of offence

under Sections 42, 43(5), 3(1), 44(1), 44(2) of the

KMMC Rules and Sections 4(1), 4(1A), 21 of the

MMDR Act, unless there is a complaint by the

Competent authority before the concerned

jurisdictional police. To cope up with such illegal

procedure being followed by the police officer, the

competent authority has to take appropriate action

against the persons being arraigned as accused. In

addition to furnishing of copy of the aforesaid decision

of this Court, the learned counsel has produced copy

of the order passed by the co-ordinate bench of this

Court in Crl.P.No.6279/2017 dated 15.11.2017,

wherein it has extensively addressed the issue relating

to initiation of crime and also in relation to proceeding

with the case for investigation and to lay the charge

sheet against accused. It is held that police cannot

file final report under Section 173 of Cr.P.C. for the

offences under the MMDR Act or KMMC Rules, either

to the jurisdictional Court having jurisdiction or to the

Special Court having jurisdiction to proceed any

further, in view of the bar under Section 22 of the

MMDR Act. However, they can file final report for the

offence under the IPC or any other penal law for the

time being in force before the jurisdictional

Magistrate.

16. The Hon'ble Supreme Court of India in the

case STATE OF NCT OF DELHI Vs. SANJAY

reported in AIR 2015 SC 75 has held that there is no

complete and absolute bar under the MMDR Act, in

prosecuting persons under the IPC where the offences

committed by persons are penal and cognizable

offences. There cannot be any dispute with regard to

restrictions imposed under the MMDR Act and remedy

provided therein. 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 basis of the record submitted by

the police alleging contravention of the said Act.

17. In the aforesaid judgment, chronological

list of cases has been referred upon for arrival of a

conclusion viz., in the case Manohar Lal Sharma vs.

Principal Secretary reported in (2014) 2 SCC

532, in the case of M.Palanisamy vs. The State of

Tamil Nadu reported in 2012 (4) CTC 1, Sengol and

in the case of Charles and K. Kannan, etc. etc. vs.

State Rep. by Inspector of Police reported in 2012

Cri.LJ 1705.

18. Considering the principles of interpretation

and the wordings used in Section 22 of the MMDR Act,

the Hon'ble Supreme Court in the aforesaid judgment

has opined and held that 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. 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. A close reading of the provisions of MMDR

Act and the offence defined under Section 378 of IPC,

it is manifest that the ingredients constituting the

offence are different. The contravention of terms and

conditions of mining lease or doing mining activity in

violation of Section 4 of the Act is an offence

punishable under Section 21 of the MMDR Act,

whereas dishonestly removing sand, gravels and other

minerals from the river, which is the property of the

State, out of the State's possession without the

consent, constitute an offence of theft.

19. But, in the instant case, theft of stone

blocks which has been loaded in the aforesaid lorry, is

said to have been used by the accused for committing

the alleged offence. However, the Investigating

Officer, who has investigated the case thoroughly has

laid the charge sheet as contemplated under Section

173 of Cr.P.C., against the accused, but, the

jurisdictional power was vested with the Civil Judge &

JMFC, Nelamangala, in order to take cognizance as

provided under Section 190 of Cr.P.C. For the

commission of offence under Section 379 Cr.P.C., as

in the aforesaid crime registered by the respondent

No.1/police and then laid the charge sheet against the

accused on receipt of credible information, 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.

20. Whereas in the instant case, respondent

No.1/police have registered the case in Crime

No.266/2015 for the offences under the MMDR Act so

also the offence under the KMMC Rules, besides

Section 379 of IPC which is reflected in the charge

sheet laid by the Investigating Officer and which is

now registered as CC No.1274/2016 before the Court

of the Civil Judge & JMFC, Nelamangala, wherein the

accused are required to face the trial, however, the

respondent No.1/police cannot proceed with the case

under the provisions of the MMDR Act so also the

offence under KMMC Rules unless the competent

authority files a complaint in accordance with rules.

But, can proceed with the case under Section 379 of

IPC, which is always intact.

21. In terms of the aforesaid reasons, in

exercise of power conferred under Section 482 of

Cr.P.C. interference is necessary by this Court, in

respect of the offences under the MMDR Act and so

also the offences under KMMC Rules, if not, certainly

there would be miscarriage of justice. Accordingly, I

proceed to pass the following:

ORDER

Petition filed by the petitioner/accused

No.2 under Section 482 of Cr.P.C. is hereby

allowed-in-part.

          Charge        sheet    laid     against   the

     petitioner/accused                 No.2         in

C.C.No.1274/2016 for the offences under

Section 42, 43(5), 3(1), 44(1), 44(2) of the

Karnataka Minor Mineral Concession Rules,

1994 and Sections 4(1), 4(1A), 21 of the

Mines and Minerals (Development and

Regulation) Act, 1957, is hereby quashed.

           Charge      sheet     laid       against    the

     petitioner/accused    No.2       for     the   offence

     under Section 379 of IPC, is intact.