Chandrappa Hombale vs The State Of Karnataka By Psi
2022 Latest Caselaw 3081 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 23RD DAY OF FEBRUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

              CRIMINAL PETITION NO.100487/2022

BETWEEN:

1.   CHANDRAPPA HOMBALE S/O. TIRAKAPPA
     AGE. 45 YEARS
     OCC. AGRICULTURIST/COOLIE
     R/AT KANCHRAGATTI VILLAGE
     TQ: & DIST: HAVERI-581115

2.   GUDDAPPA DODDANINGAPPANAVARA
     WRONGLY SHOWN AS DODDANINPPANAVR
     S/O. ADIVEAPPA
     AGE. 26 YEARS
     OCC. AGRICULTURIST/COOLIE
     R/AT. KANCHRAGATTI VILLAGE
     TQ: & DIST: HAVERI-581115

3.   MAHADEVA KALASA S/O. NAGAPPA
     AGE. 36 YEARS
     OCC. AGRICULTURIST/COOLIE
     R/AT. KANCHRAGATTI VILLAGE
     TQ: & DIST: HAVERI-581115

4.   JABIULLA MUJAVAR S/O. BADESAB
     AGE. 41 YEARS
     OCC. AGRICULTURIST/COOLIE
     R/AT KANCHRAGATTI VILLAGE
     TQ: & DIST: HAVERI-581115

5.   PRAKASH SHEKAPPA GABAGADI
     S/O. SHEKAPPA
     AGE. 35 YEARS
     OCC. AGRICULTURIST/COOLIE
                               2




      R/AT KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

6.    KOTYAPPA NEGALUR S/O. SHEKAPPA
      AGE. 34 YEARS
      OCC. AGRICULTURIST/COOLI
      R/AT KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

7.    SHANKRAPPA CHOUDAPPA AMBIGER
      S/O. CHOUDAPPA
      AGE. 38 YEARS
      OCC. AGRICULTURIST/COOLIE
      R/AT KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

8.    HANUMANTHAPPA CHOUDAPPA AMBIGER
      S/O. GANGAPPA AMBIGER
      AGE. 43 YEARS
      OCC. AGRICULTURIST/COOLIE
      R/AT. KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

9.    NAGAPPA HARVI S/O. RAMAPPA
      AGE. 45 YEARS
      OCC. AGRICULTURIST/COOLIE
      R/AT KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

10.   HANUMANTHA BHEEMANNA BARKI
      S/O. BHEEMAPPA
      AGE. 42 YEARS
      OCC. AGRICULTURIST/COOLIE
      R/AT KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115

11.   HANUMANTHAPPA DODDA NINGAPPANAVAR
      S/O. NINGAPPA
      AGE. 39 YEARS
      OCC. AGRICULTURIST/COOLI
      R/AT. KANCHRAGATTI VILLAGE
      TQ: & DIST: HAVERI-581115
                                 3




                                                  ...PETITIONERS.

(BY SHRI ARAVIND H, ADVOCATE.)


AND:

THE STATE OF KARNATAKA
BY PSI,
HIREHADAGALI POLICE STATION
HUVINAHADAGALI TALUK
DIST. VIJAYANAGARA
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.

                                                  ...RESPONDENT.

(BY SHRI RAMESH CHIGARI, HCGP.)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
FIR AND COMPLAINT IN CRIME NO.0025/2022 ON THE FILE OF THE
CIVIL JUDGE AND JMFC AT HUVINHADAGALI, REGISTERED FOR
OFFENCE PUNISHABLE UNDER SECTIONS 4(1) 4(1A) AND 21 OF
MMRD ACT 1957 AND UNDER SECTION 379 OF IPC, ETC.,.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:


                             ORDER

Both the learned counsel appearing for the petitioners and

the State would in unison submit that the issue in this petition

stands covered by the judgment rendered by a co-ordinate

Bench of this Court in Crl.P.No.201296/2017, disposed off on

25.7.2018, wherein the co-ordinate bench of this court has held

as follows:

3. The records disclose that, a person by name C. Jayaramegowda, a Geologist attached to Mines and Geology Department, Raichur has lodged a first information report against the accused persons stating that, they were indulged in committing theft of sand in Sy. Nos.92/A to 90/U of Chikasugur village in Raichur District and found that the accused persons have lifted the sand worth Rs.4,05,000/-. On the basis of the said first information report, the respondent No.1-police have registered a case in Crime No.91/2016 for the offences punishable under Section 379 of IPC, Sections 4(1), 4(1A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'MMDR Act') and also under Rules 3, 42, 43 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 (hereinafter referred to as 'KMMC Rules'). The police infact have investigated the matter and submitted a charge- sheet before the III Additional Civil Judge (Jr.Dn.) and JMFC Court, Raichur.

4. The learned Magistrate having found that the offences under the MMDR Act are not triable by the Magistrate and it is triable by the said Court i.e., designated Special Court/Principal Sessions Judge at Raichur, the said case was committed to the Principal Sessions Judge at Raichur and the said Court has taken cognizance against the petitioners in Special Case (MMRD) No.224/2017 and posted the case for framing of charges against the accused persons.

5. Before both the Courts below, the entire proceedings so far as the MMDR Act and KMMC Rules are concerned, are vitiated by serious procedural

irregularities, which amounts to an illegality and not curable in nature.

6. It is worth to refer here the decision of this Court reported in ILR 2018 KAR 1497 between Sri Vivek and Another vs. The State of Karnataka, by Kunigal Police Station and Another. Wherein, this Court after detailed consideration of the provisions under MMDR Act and KMMC Rules particularly, referring to Section 22 of the MMDR Act, has categorically held that, the police have no jurisdiction to investigate by registering any case under Section 154 of Cr.P.C. and file any final report under Section 173 of Cr.P.C., nor the learned Magistrate has got any jurisdiction to take cognizance for the above said offences on the basis of the police report in view of the bar contained under Section 22 of the MMDR Act. Further, this Court has also observed that Section 22 of the MMDR Act clearly mandates that, no Court shall take cognizance of any offence under the MMDR Act or KMMC Rules, unless a private complaint is filed by a person authorized in this behalf by the Central Government or the State Government.

7. On applying the above said principles to the present case, it is clear that, the Police without jurisdiction had investigated the offences under the provisions of MMDR Act and KMMC Rules and filed a charge sheet and the learned Magistrate even without looking into any provisions of the law had taken cognizance and committed the case to the Court of Sessions. Even the Principal Sessions Judge without looking to the relevant provisions of MMDR Act, had taken cognizance and issued process against the accused and set down the case for framing the charges. Wholly the above said proceedings right from the time of filing of FIR, to investigation and taking of cognizance by Magistrate and committal proceedings and taking of cognizance by the special Judge, are all vitiated by serious irregularities, which are not curable in nature.

However, the police have invoked Section 379 of IPC. The Apex Court in a decision reported in AIR 2015 SC 75 between State of NCT of Delhi vs. Sanjay, has held that Section 22 of the MMDR Act, is not a complete and absolute bar for the police for taking action for illegal and unauthorized theft of sand and gravels from the river and investigate the matter for the offence under Section 379 of IPC and file a charge sheet to the Court.

8. Therefore, the apex Court has observed that, the police can investigate the offences under Section 379 and file appropriate report to the Magistrate and Magistrate having jurisdiction can take cognizance for the offence under Section 379 and deal with the matter.

In the light of the afore-extracted judgment of the co-

ordinate Bench of this Court, which covers the issue involved in

the subject petition on all its fours, the petition is disposed off in

the same terms as is directed in the judgment of the co-

ordinate Bench of this Court (supra).

Ordered accordingly.

SD JUDGE Mrk/-