Karnataka High Court
Shri.Lagama S/O Shivappa ... vs The State Of Karnataka on 30 July, 2021
Author: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
DATED THIS THE 30 T H DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE S HIVASHANKAR AMARANNAVAR
CRL.PET .NO.102340/2018
BETWEEN:
1. SHRI. LAGAMA S/O.SHIVAPPA BADAVAGOL
AGE: 27 YEARS, OCCUPATION: AGRICULTURE
R/O: YAMAKANMARDI RC, TALUKA: HUKKERI,
DIST: BELAGAVI.
2. SMT. GODAVVA W/O. YALLAPPA DHANASI
AGE: 45 YEARS, OCCUPATION: AGRICULTURE
R/O: YAMAKANMARDI RC, TALUKA: HUKKERI,
DIST: BELAGAVI.
...PETITIONERS
(BY SMT. S UNANDA P. PATIL, ADV .)
AND:
THE STATE OF KARNATAKA
BY STATE PUBLIC PROSECUT OR
HIGH COURT OF K ARNATAKA
DHARWAD BEN CH
FOR YAMAKANMARDI POLICE STATION.
... RES PONDENT
(BY SRI.R. RAVINDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CR.P.C. SEEKING TO ALLOW THE
CRIMINAL PETITION BY QUASHIN G THE FIR AND
COMPLAINT AND FURTHER PROCEEDINGS IN CRIME
2
NO.18/ 2018 REGISTERED BY THE YAMAKANMARDI
POLI CE STATION , FOR THE OFF ENCES P/ U/S/ 379 OF
IPC AND SECTION S 4(1), 4(1-A) R/ W SECTION 21 OF
MINES AND MINERALS (DEV ELOPMENT AND
REGULATION) ACT, 1957 IN RESPECT OF THE
PETITIONERS PENDING BEFORE THE ADDL. CIVI L
JUDGE AND JMFC COURT , SANKES HWAR.
THIS CRIMINAL PETITION IS COMING ON FOR
ADMISSION , THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioners and
learned HCGP.
2. This petition is filed seeking to quash the
FIR and complaint dated 19.01.2018 in Crime
No.18/2018 of Yamakanmaradi Police Station
registered for the offence under Section 379 of IPC
and Section 4(1), 4(1-A) and Section 21 of Mines and
Minerals (Development and Regulation) Act,
(hereinafter referred to as the 'MMDR Act', for brevity)
1957 as against the petitioners. The said FIR has been
registered on the information filed by CPI Hukkeri
circle.
3. It was alleged that on the basis of credible
information of illegal mining and transporting of sand
on 19.01.2018 at 9.00 a.m., the complainant along
with his staff intercepted the TATA 407 Tempo bearing
registration No.KA-26/4809 coming form Narasingpur
towards Managutti cross, within the limits of
Yamakanmaradi Police Station. Upon checking, the
said vehicle was found transporting sand worth
Rs.3,000/-. Upon enquiry, the crew of the said vehicle
407 Tempo it is revealed that the sand was illegally
extracted from backwater of Ghataprabha river, Hidkal
Dam within limits of Beeranaholi.
4. The learned counsel for the petitioners
relying on Section 22 of the MMDR Act and Section
2(d) of Code of Criminal Procedure, 1973 and Rules
2(1)(a-1-a) of The Karnataka Minor Mineral
Concession Rules, 1994 submits that Police Inspector
was not competent to file complaint and register the
first information report.
5. Learned HCGP submits that the case is
registered for the offence under Section 379 of IPC
also and the Police Officer is competent to register a
case for the said offence.
6. Section 22 of MMDR Act bars taking
cognizance of the offence punishable under the said
Act, except upon the complaint in writing made by a
person authorized in that behalf by the Central
Government or the State Government. Complaint as
defined under Section 2(d) of Cr.P.C. excludes a
Police report.
7. Firstly, the Police Inspector who has filed
the complaint does not state in the complaint that he
is authorized by the State to file such complaint.
Secondly, even if he is an authorized person, he has
to file a complaint before the concerned Court and not
before the police as the definition of complaint
excludes the police report. Therefore, the impugned
first information report for the offence under the
provisions of MMDR Act is incompetent.
8. So far as the sustainability of first
information report for the offence punishable under
Section 379 of IPC, the Hon'ble Supreme Court in
paragraphs 72 & 73 of the judgment in State (NCT of
Delhi) Vs. Sanjay, (2014) 9 SCC 772, has held as
follows:
"72. From a close reading of the
provisions of MMDR Act and the offence
defined under Section 378 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, gravel and other minerals
from the river, which is the property of
the State, out of State's possession
without the consent, constitute an offence
of theft. 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 persons. In other
words, in a case where there is a theft of
sand and gravel 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.
73. 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 riverbeds
without consent, which is the
property of the State, is a distinct
offence under IPC. Hence, for the
commission of offence under Section
378 IPC, 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 authorised officer for taking
cognizance in respect of violation of
various provisions of the MMDR 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."
(Emphasis supplied)
9. In the light of the aforesaid judgment and
discussion, the first information report requires to be
quashed only so far it relates to the offences
punishable under Sections 4(1), 4(1A) and 21 of
MMDR Act.
Therefore, petition is partly allowed. The FIR in
crime No.18/2018 of Yamakanmaradi Police Station is
quashed only so far as it relates for the offence under
Sections 4(1), 4(1A) and 21 of MMDR act.
Liberty is reserved to the Government to take
appropriate measures to comply with Section 22 of
MMDR Act.
Sd/-
JUDGE
MN S /
