Karnataka High Court

Sri.Guru vs The State Of Karnataka on 8 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 8th DAY OF FEBRUARY 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO. 100797/2016

BETWEEN

SRI GURU S/O SANGANAGOUDA PATIL,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: SAVADI, TQ: ATHANI,
DIST: BELAGAVI.
                                          ...PETITIONER
(BY SRI SRINAND A.PACHHAPURE, ADVOCATE)

AND

THE STATE OF KARNATAKA,
BY ATHANI POLICE STATION,
NOW REP. BY S.P.P.,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
                                          ...RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO QUASH THE FIR & COMPLAINT IN
ATHANI POLICE STATION CRIME NO. 37 OF 2015 REGISTERED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF IPC
AND SECTION 31(R) OF KARNATAKA MINOR MINERAL
CONSISTENT RULE 1994 AND FURTHER PROCEEDINGS
PURSUANT TO THE SAID FIR & COMPLAINT MARKED AT
ANNEXURE-A & B RESPECTIVELY INSOFAR AS PETITIONER IS
CONCERNED.
                                         2




       THIS PETITION COMING ON FOR FINAL HEARING THIS
  DAY, THE COURT MADE THE FOLLOWING:

                                  ORDER

1. The petitioner is before this Court calling in question

the proceedings in Crime No.37/2015 registered for the

offences punishable under Section 379 of IPC and Section

31(r) of Karnataka Minor Mineral Concession Rules, 1994.

2. Heard Sri.Srinand A Pachchapure, learned counsel for

petitioner and Sri.Ramesh Chigari, learned HCGP for

respondent.

3. The learned counsel appearing for the petitioner

would submit that the entire proceedings initiated right from

the registration of the complaint is one without jurisdiction as

the complaint is registered before the police. This runs

counter to Section 22 of the Mines and Minerals

(Development and Regulation) Act, 1957 (for short the Act),

Section 22 of the Act reads as follows:

22. Cognizance of offences-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.

4. Section 22 the Act mandates that no Court shall take

cognizance of any offence punishable under this Act except

on a complaint in writing made by a person authorized in this

behalf. The complaint would mean a private complaint not

the one registered in the case at hand.

5. The issue whether the proceedings could be initiated

by registration of a private complaint or a complaint need not

detained this Court for long, the issued stands covered by the

judgment of a Co-ordinate bench reported in (2018) 3 AKR

129 2 KCCR 1239, wherein co-ordinate Bench has held as

follows:

" 28. Therefore, it is clear from the above that, the Session's Court designated as Special Court, has no jurisdiction to take cognizance directly of the offences under the MMRD Act and Rules.

The cases can be tried only after the committal proceedings.

29. The learned Counsel for the petitioner has submitted that this Court has taken a different view earlier in two Criminal Petitions with regard to the jurisdiction of the Special Court and also the Magistrate Court. I have carefully gone through the order passed by me in CRL.P. No. 100525/2017 dated 22.3.2017 pertaining to Dharwad Bench, wherein at paragraph 4, this Court has come to the conclusion that -"The Judicial Magistrates of First Class have no right to entertain any complaint where the allegations fall under the MMDR Act or Rules thereunder and with allied offences....... And also observed that Judicial Magistrate of I Class could not have entertained the complaint directly by taking cognizance and issuing summons to the accused."

In another case i.e., in Crl.RP No. 100191/2016 disposed of on 14.2.2017 at Dharwad Bench, I have taken the view that the Judicial Magistrate of I Class, has no jurisdiction to entertain the bail petition and grant regular bail.

30 The above said two opinions are rendered by me without referring to or considering the decision of the Hon'ble Apex Court reported in AIR 2015 SC 75 between NCT Delhi v. Sanjay,

which is extensively relied upon in this case. The above said observation made by this Court in the two cases is not correct in view of contrary view taken by the Hon'ble Apex Court in the decision cited. Perhaps, due to lack of any assistance and in non-referring of the said decision to me at the time of rendering the said judgment, the said orders were passed.

31. In this particular case, as I have noted above, the Hon'ble Apex Court has considered in detail the powers of the Judicial Magistrates and also the Special Courts.

32. It is to be noted here that our judiciary is constantly trying to make the concept of justice real in accordance with the legal pronouncements of the Hon'ble Apex Court. The judicial system even though it is said to be perfectly structured, may not yet be so perfect in interpreting the law. Therefore, we have to be always innovative and reformative in our endeavor. If there is any mistake committed, we should fairly correct it to bring it in consonance with the correct interpretation of law. It is relevant to refer to the decision of the Apex Court in the case of Hotel Balaji v. State of U.P (1993 Supl 4 SCC 537) wherein the following observation of Justice Bhagawathi in an early case is extracted at page 551:

"To perpetuate an error is not heroism. To rectify it is the compulsion of judicial conscience". Therefore, introspection and improvement are the two eyes of our system to see what corrective measures are absolutely necessary for the purpose of almost making the judgment/order nearly to ZERO DEFECTIVE. There may be circumstances where the Court may commit mistake, but if the said mistake is brought to the notice of the Court subsequently and if the Court has got an opportunity to correct the same, the Court should not lag behind in correcting its mistake so as to proceed in the right path. Therefore, it should be borne in mind by the Courts that - "A saner thought will always throw more light even on the same subject". Bearing in mind the above said aspects, I am of the opinion that the above said orders passed by me is not in consonance with the law laid down by the Hon'ble Apex Court. Every day, law is developing by virtue of saner interpretation of the laws by the higher Courts and the Hon'ble Apex Court. The Court should always lean in favour of correcting its mistake when need arises in accordance with the development and interpretation of laws by the Hon'ble Apex Court, more so said interpretation is particularly and purely based on legal aspects. Therefore, as the above observations

made by me earlier in the two decisions are not correct and in consonance with the Hon'ble Apex Court, I have ventured upon to discuss this matter in detail so as to correct the mistakes and guidelines are properly laid down in this case.

33. In order to avoid this anomaly and unnecessary cumbersome procedure of committal of the case by the Magistrate, the appropriate Governments have to take necessary steps to amend the MMRD Act and Rules, to confer original jurisdiction on the Special Courts constituted under the Act.

34. Once the Court comes to the conclusion that the accused has committed some offence under any law for the time being in force, he should not be allowed to go Scot free without following the procedure contemplated under law. If for the offences under the MMDR Act and KMMC Rules and the offences under the IPC, the Special Court ignorantly or erroneously takes cognizance, either directly or on the private complaint directly or entertains the proceedings, and later if it comes to know that the said Court had no jurisdiction to entertain such complaint or the report by the police, in the absence of private complaint filed by the competent authority before the Jurisdictional Magistrate as

per Section 22 of the Act and the committal of the case there on, it does not mean to say that the proceedings are to be closed there itself. In such situation the Special Court has to transfer the said report of the police to the Jurisdictional Magistrate for the purpose of passing appropriate orders with regard to the cognizance of the offence under IPC and any other penal provision other than the offences under MMDR Act or Rules. In such an eventuality, the Magistrate has to once again apply his mind to the entire charge sheet papers filed by the police and if any case is made out u/ss. 378 and 379 of IPC, or any other penal law for the time being in force, where it empowers the Magistrate to take cognizance, then he can take cognizance and issue process against the accused persons. "

6. Therefore the proceedings that the initiated pursuant

to the complaint registered before the jurisdictional police

would lose its legs to stand. If the complaint itself was

contrary to law all further proceedings taken there to would

be a nullity and without jurisdiction.

7. For the aforesaid reasons the following: