Shri Deepak S/O Vijay Rane vs The State Of Karnataka
2022 Latest Caselaw 2532 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 16TH DAY OF FEBRUARY, 2022

                        BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

         CRIMINAL PETITION NO.101524 OF 2021


BETWEEN:

1.   SHRI DEEPAK
     S/O VIJAY RANE
     AGE:45 YEARS,
     OCC.:BUSINESS
     R/O ADKUR,
     TQ.:CHANDGAD
     DIST.:KOLHAPUR - 416 509.

2.   SHRI BARAKU
     S/O MAHADEV KULAM
     AGE:58 YEARS
     OCC:AGRICULTURE
     R/O:GOLYALI, TQ.:KHANAPUR
     DIST.:BELAGAVI - 591 345.

3.   SHRI NAMDEV
     S/O. RANABA ARADALKAR
     AGE. 42 YEARS,
     OCC. BUSINESS,
     R/O. GANUCHWADI,
     TQ. CHANDAGAD,
     DIST. KOLHAPUR - 416 509.
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4.   SHRI RAMESH
     S/O MARUTI CHEVHAN
     AGE. 44 YEARS,
     OCC. DRIVER,
     R/O. BELGUNDI
     TQ. KHANAPUR,
     DIST. BELAGAVI - 591 345.

5.   SHRI. RAHUL
     S/O NETAJI ANGOLKAR
     AGE 41 YEARS,
     OCC. BUSINESS,
     R/O. BELGUNDI
     TQ. KHANAPUR,
     DIST. BELAGAVI - 591 008.

6.   SHRI.MAYAPPA
     S/O.SIDAPPA MAKALI
     AGE 42 YEARS,
     OCC.: DRIVER,
     R/O. SATTEGERI,
     TQ. SAVADATTI,
     DIST. BELAGAVI - 591 126.

7.   SHRI.HUSENSAB @ BUDANSAB
     S/O. DASTAGIRSAB MULLA
     AGE 46 YEARS,
     OCC. BUSINESS,
     R/O. SATTEGERI,
     TQ. SAVADATTI,
     DIST. BELAGAVI - 591 126.

8.   SHRI RAVI
     S/O. HANMANTH SHIGIHALLI,
     AGE 41 YEARS,
     OCC.: DRIVER,
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       R/O. YARZARVI,
       TQ. SAVADATTI,
       DIST. BELAGAVI - 591 119.
                                        ... PETITIONERS
(BY SRI RAM P.GHORPADE, ADVOCATE)


AND:

THE STATE OF KARNATAKA
BY KHANAPUR POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
                                       ... RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)


     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT RECORDS
AND ALLOW THIS CRIMINAL PETITION BY QUASHING THE
COMPLAINT IN C.C. NO.352/2019 DATED 10.03.2019 OF
KHANAPUR POLICE STATION, KHANAPUR, BELAGAVI, FOR
THE ALLEGED FOR THE OFFENCES PUNISHABLE U/S 4 (1-A),
21 R/W SECTION 22 OF MMRD (MINES AND MINERALS
REGULATION OF DEVELOPMENT) ACT 1957, AND RULES,
(U/S 3, 32, 44,) KARNATAKA MINOR MINERAL CONSISTENT
RULE 1994., THEREBY REGISTERING THE CASE AGAINST
THE     PETITIONERS/ACCUSED       NO.1  TO    8   AND
CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS
PENDING THEREON.


       THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

The petitioners are before this Court calling in question the

proceedings in C.C.No.352 of 2019 pending before the Principal

Civil Judge and JMFC, Khanapur registered for offences

punishable under Sections 4(1-A), 21 r/w Section 22 of the

Mines and Minerals (Regulation of Development) Act, 1957 ('the

Act' for short) and Rules 3, 32 and 44 of the Karnataka Minor

Mineral Concession Rules, 1994.

2. Heard Sri.Ram.P.Ghorpade, learned counsel appearing

for petitioners and Sri.Ramesh Chigari, learned High Court

Government Pleader appearing for State.

3. Brief facts leading to the filing of the present petition, as

borne out from the pleadings, are as follows:-

The petitioners are accused 1 to 8 in the aforesaid

proceedings. What triggered registration of the complaint against

the petitioners is that, on 10-03-2019 it was brought to the

notice of the Police Inspector that in Sy.No.123/1 of Gollyali

village the petitioners were removing Boxite and loading Boxite

with the help of tipper lorry. The complainant conducted a raid

along with his staff and then seized the tipper lorry loaded with

Boxite and another tipper lorry ready for loading Boxite with the

help of the JCB. The staff, drivers and the vehicles were taken

into custody. Based thereon, the subject complaint came to be

registered against the petitioners who are said to be perpetrating

the said illegal act along with their staff. Accused Nos.5 and 7

are said to be owners of the vehicles and others are their staff.

On registration of the said complaint, the petitioners are before

this Court calling in question the aforesaid proceedings.

4. The learned counsel appearing for the petitioners

contends that the impugned proceedings are contrary to law as

what is contemplated under the Act is registration of a private

complaint by the Competent Authority and not a complaint by

the respondent. According to the learned counsel, the

complainant is not the one authorized under the Act to register

the said complaint. In terms of Section 24 of the Act, the learned

counsel would submit that, it is only the authorized person who

has the power of entry, inspection and registration of the

complaint. He would place reliance upon the judgment rendered

by this Court in Criminal Petition No.100525 of 2017 decided on

22nd March 2017 to contend that the issue stands covered.

5. On the other hand, the learned High Court Government

Pleader would submit that the State has issued a notification

empowering the respondent to register the complaint. It is not a

complaint to the Police but a private complaint that is registered

by the authorized officer.

6. I have given my anxious consideration to the

submissions made by the respective learned counsel for the

parties and perused the material on record.

7. The learned counsel for the petitioners has restricted his

submission only to the fact that private complaint has not been

registered and the proceedings have been initiated pursuant to a

complaint before the Police. The said submission runs counter

to the facts. A private complaint, pursuant to the said incident

is registered on 10-03-2019, the date on which the petitioners

were alleged to have been illegally extracting and exporting

Boxite. The private complaint also contained all the necessary

details that would enable registration of the said crime.

Therefore, the solitary contention being contrary to the facts

with regard to registration of the complaint, the subject petition

does not merit any further consideration. It is for the petitioners

to come out clean in the trial registered for offences punishable

as aforesaid, for violation of provisions of the Act.

8. This Court has in the judgment rendered in the case of

VIVEK v. STATE OF KARNATAKA1 held that the private

complaint has to be registered and the special Court has no

jurisdiction to take cognizance and the matter has to be referred

to the learned Magistrate, all of which have happened in the

ILR 2018 KAR 1497

case at hand. The Co-ordinate Bench of this Court holds as

follows:

"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 under Sections.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.

35. In this context it is also worth to mention here the provision under Section 228 of Cr.P.C. which reads as under:

228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for

presuming that the accused has committed an offence which - (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

This provision also empowers the Sessions Judge to transfer the case to Chief Judicial Magistrate or to any other magistrate to try the offences, if the Sessions Court has no jurisdiction to try those offences and the offences are exclusively triable by the Magistrate.

36. Now let me advert to the facts of this case. In this particular case, as penal provisions under the MMDR Act and Rules have been invoked, by the Police the Special Court, as I have noted above, has no jurisdiction to take up the matter unless a private complaint is filed by the competent authority before the JMFC, and there is committal of the case. The Special Court has no jurisdiction to receive the report under Section.173 of Cr.PC neither from the Police nor a private complaint by the authorized officer, directly without committal. If the Court has no jurisdiction and if the Court is of the opinion that some other Court has got

jurisdiction, then the Court has to transfer the case and transmit the records to the Court which is having jurisdiction to pass an appropriate order in accordance with law. Hence, in this particular case, the cognizance taken by the Special Court under MMDR Act and KMMC Rules is bad in law and the same is liable to be set- aside. However, a direction has to be issued to the Special Court to transmit the records to the jurisdictional Magistrate for the purpose of examining whether the Magistrate can take cognizance of any of the offences and to allow the jurisdictional Magistrate to pass appropriate order."

Therefore, none of the grounds urged by the petitioners in the

subject petition are tenable. Accordingly, the petition stands

dismissed.

In view of dismissal of the petition, I.A.No.1/2021 filed for

stay does not survive for consideration and stands disposed.

Sd/-

JUDGE

bkp CT:MJ