Karnataka High Court

Sri. Srinivas vs State Of Karnataka on 15 June, 2022

Bench: M.Nagaprasanna

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 15TH DAY OF JUNE, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

              CRIMINAL PETITION No.5289 OF 2022

BETWEEN:

SRI SRINIVAS
AGED ABOUT 46 YEARS
S/O MAYANNA
R/O BHARATHIPURA VILLAGE
SOMPURA HOBLI
NELAMANGALA TALUK
BENGALURU RURAL DISTRICT
BENGALURU - 571 606.
                                                  ... PETITIONER
(BY SRI H.L.JAYARAMU, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY DOBASPET P.S.,
       BY STATE PUBLIC PROSECUTOR
       HIGH COURT BUILDING
       BENGALURU - 560 001.

2.     SMT.N. SHOBHA., GEOLOGIST
       MINES AND GEOLOGY DEPARTMENT
       13TH FLOOR, V.V.TOWERS
       BENGALURU - 560 001.
                                            ... RESPONDENTS
(BY SMT.K.P.YASHODHA, HCGP FOR R1)
                                2



      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASHING THE PROCEEDINGS IN CC NO.
1208/2011 FOR THE OFFENCES PUNISHABLE U/S 3(1), 42, 43,
44(1) OF KMMC ACT, 1994, 4(1), 4(1-a) AND 21 OF THE MMDR ACT
1957 WHICH IS PENDING ON THE FILE OF THE HONBLE PRINCIPAL
CIVIL JUDGE AND JMFC NELAMANGALA AND FURTHER BE
PLEASED TO ORDER FOR CALLING OF LOWER COURT RECORD
FOR THE REASONS STATED ABOVE.

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

                             ORDER

The petitioner calls in question the proceedings in

C.C.No.1208/2011 registered for offences punishable under

Rules 3(1), 42, 43, 44(1) & (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 (for

short 'the Act').

2. Heard Sri H.L.Jayaramu, learned counsel for the

petitioner and Smt. K.P.Yashodha, learned High Court

Government Pleader for respondent No.1.

3. The learned counsel appearing for the petitioner would

contend that the issue stands covered by the judgment rendered

by a Co-ordinate bench of this Court in the case of SRI VIVEK

AND ANOTHER VS. THE STATE OF KARNATAKA AND

ANOTHER reported in ILR 2018 KAR 1497.

4. The learned High Court Government Pleader would not

dispute the position of law.

5. Though the charge sheet is of the year 2011, since the

very order taking of cognizance being contrary to the statute and

it cutting to the root of the matter, I deem it appropriate to

entertain the petition and follow the judgment of the Co-ordinate

Bench and grant the relief that the Co-ordinate Bench has

granted in the afore-quoted judgment.

6. This Court in VIVEK (supra) has held as follows:16 and

17, 36:

"16. It is also worth to mention here a decision of the Hon'ble Apex Court reported in between STATE OF NCT OF DELHI Vs. SANJAY (AIR 2015 SC 75), wherein the Hon'ble Apex Court has elaborately discussed with regard to the jurisdiction of a Special Court, and under what circumstances, the Special

Court can take cognizance of the offence under the MMDR Act and under what circumstances, the Jurisdictional Magistrate can take cognizance of the offence under Section 379 of IPC with reference to the land mafia and transporting of the sand stealthily by some people. It is worth mentioning here the guidelines issued at para Nos.68 to 72, which has in detail, dealt with these aspects and the same are extracted hereunder:

"68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate.

It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. 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. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of

Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.

69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code.

70. From 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 State's possession without the consent, constitute an offence of theft.

71. 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 person. In other words, in case where there is a theft of sand and gravels 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.

72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-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 river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378, Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD 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."

Further, the Hon'ble Apex Court in the said case has made it amply clear that in a case of breach or violation of the provisions of Section 4 of the MMDR Act, there is a bar under Section 22 of the Act to investigate and submit report to the Police under Section 173 of Cr.PC., because Section 22 of the MMDR Act says that;

"Sec.22. No court shall take cognizance of any offence punishable under this Act or any rules made there under except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Government."

17. Therefore, in order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules thereunder.

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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.P.C. 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.

37. Before concluding even at the cost of repetition, I, feel it just and necessary to summarize the guidelines to be born in mind by the police, Magistrates and the Special Courts, and the same are briefly enumerated hereunder.

GUIDELINES:

(1) The Special Court constituted under the MMDR Act, has no jurisdiction to directly take cognizance of the offences under the MMDR Act and KMMC Rules, even along with any other penal offences unless the case is committed by the jurisdictional Magistrate. It is made clear that the Special Court has no jurisdiction to receive a final report from the Police under Section 173 of Cr.P.C. or to receive any private complaint under the MMRD Act, directly from the authorized officer and take cognizance of the offences either under the MMRD Act or any other penal laws. If any such complaint is erroneously received and pending, the Special Court has to follow the procedure as contemplated under Section 201 of Cr.P.C. and return the complaint for presentation to the proper Court with an endorsement to that effect. Like wise if any police report is received the same has to be transferred to the jurisdictional Magistrate invoking the provisions under Section 228 (1)

(a) of Cr.P.C. for appropriate action.

(2) The Police cannot file a final report under Section 173 of Cr.P.C. for the offences under the MMRD Act & KMMC Rules either to the jurisdictional JMFC Court or to the Special Court. However, they can file the report for the offences under the IPC or any other penal law for the time being in force before the jurisdictional Magistrate.

(3) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act &

KMMC Rules on the basis of any Police report u/s.173 of Cr.P.C. However, if any penal provisions under the IPC or any other penal laws are available in the final report of the police, if there is no other legal bar; the Magistrate can take cognizance of such offences under the IPC or other penal laws for which he is empowered, except for the offences under MMDR Act & KMMC Rules.

(4) A private complaint is only contemplated under the MMDR Act & KMMC Rules and thus it has to be filed under Section 22 of the Act by the competent authorized officer under the MMDR Act & KMMC Rules. Even if other offences under any other penal laws, are also included along with offences under MMDR Act and Rules, the jurisdictional Magistrate, has to take cognizance of the offences under MMDR Act & KMMC Rules only on the basis of the private complaint even though other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.P.C., the Magistrate has to commit the entire case to the Special Court for trial.

(5) The Special Court gets jurisdiction to try the offences under the MMDR Act & KMMC Rules there under including any other offences under any other penal laws for the time being in force only after the case is committed to it for trial by the jurisdictional Magistrate.

(6) If the authorized officer under Section 22 of the MMDR Act, has filed a private complaint, and the Magistrate has taken cognizance of

the same, and during the course of inquiry or trial of private complaint, it is made to appear to the Magistrate that an investigation by the police in the same case is pending in relation to the offence which is the subject matter of inquiry or trial held by him then the Magistrate has to stay the proceedings of such inquiry or trial and call for the report on the matter from the police, and there after commit both the cases to the Special Court, for trial.

(7) If the police have already filed the report under Section 173 of Cr.P.C. for the offences under the MMDR Act and also under Other penal laws, like I.P.C. Motor vehicles Act or under any other penal law for the time being in force where the Magistrate has taken cognizance of the offences under other Penal laws, during inquiry or trial of such case, if any Private complaint is filed as per Section 22 of the said Act, by the authorized officer for the offences under MMDR Act and Rules arising out of same incident, the Magistrate shall stay all further proceedings, and commit both the cases to the Special Court for trial of both the cases, as per Section 323 of Criminal Procedure Code, after following the procedure as contemplated under section 202 (2) of Cr.PC.

(8) The Special Court on receipt of the cases as noted at Guidelines 6 and 7, relating to the same incident, as the case may be has to try both the cases together, in accordance with law, adopting the procedure of a sessions

trial, in view of the powers vested as per section 30 C of MMDR Act.

(9) The provisions and powers of the Magistrate with regard to the bail and also with regard to the interim custody of the seized properties can be exercised by the Magistrate during the inquiry till the committal of the case to the Special Court.

(10) After committal of the case, the Special Court being the Trial Court shall have all the powers of the Sessions Court regarding bail and disposal of the properties involved in the case, as provided under the provisions of the Code of Criminal Procedure."

This Court was interpreting Section 22 of the Act, which

mandates that no Court shall take cognizance of any offence

under the Act except on a complaint in writing made by an

authorized person on behalf of Central Government or State

Government. Admittedly, in the case at hand, the concerned

Court has taken cognizance based upon a police report after

registration of the FIR. Therefore, the issue stands completely

covered by the judgment quoted (supra).

6. For the aforesaid reasons, the following:

ORDER

i. The criminal petition is allowed. ii. The proceedings in C.C.No.1208/2011 pending before the Principal Civil Judge and JMFC, Nelamangala and all further proceedings thereon, are hereby quashed.

iii. However, the Principal Civil Judge and JMFC, Nelamangala, is hereby directed to transfer and transmit the entire records along with the report filed by the Police under Sections 173 of Cr.P,C. to the Learned JMFC who has jurisdiction to take cognizance of the offences under Sections 378 and 379 of IPC and Rules 3(1), 42, 43, 44(1) & (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.

iv. In such an eventuality, the jurisdictional Magistrate has to apply his judicious mind to the facts and circumstance of the case and the entire charge sheet papers and thereafter, pass appropriate orders with regard to taking of cognizance and issuance of process against the accused in accordance with law.