Karnataka High Court
Srinivas vs State By Bagepalli Ps on 13 December, 2023
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CRL.RP No. 504 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE ANIL B. KATTI
CRIMINAL REVISION PETITION NO.504 OF 2015
BETWEEN:
1. SRINIVAS
S/O NARAYANAPPA
AGED ABOUT 24 YEARS
TRACTOR DRIVER
R/O PICCHALAVARAPPALLI
BAGEPALLI TALUK
CHIKKABALLAPURA-561 207.
Digitally
signed by 2. VENKATARAMANA REDDY
SUMITHRA R S/O VENKATANARASA REDDY
Location: AGED ABOUT 55 YEARS
HIGH R/O PICCHALAVARAPALLI
COURT OF BAGEPALLI TALUK
KARNATAKA CHIKKABALLAPURA-561 207.
...PETITIONERS
(BY SRI. KARTHIK SHANKARAPPA, ADV., FOR
SRI. SHANKARAPPA S, ADV.,)
AND:
1. STATE BY BAGEPALLI P.S.
CHIKKABALLAPURA -561207
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE-560 001.
...RESPONDENT
(BY SMT. ANITHA GIRISH N, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
PASSED IN C.C.NO.77/2013 BY THE JUDGMENT DATED
17.7.2014 ON THE FILE OF CIVIL JUDGE AND JMFC, BAGEPALLI
AND THE JUDGMENT OF CONFIRMATION BY APPELLATE COURT
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CRL.RP No. 504 of 2015
IN CRL.A.NO.45/2014 BY ITS JUDGMENT DATED 25.4.2015 ON
THE FILE 1ST ADDL. DIST. & SESSIONS JUDGE,
CHIKKABALLAPURA, AND THE PETITIONERS MAY BE
ACQUITTED.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioners/accused Nos.1 and 2 feeling
aggrieved by the judgment of first appellate Court on the
file of I Additional District & Sessions Judge,
Chikkaballapura in Crl.A.No.45/2014 dated 25.04.2015 in
confirming the judgment of the trial Court on the file of
the Civil Judge & JMFC, Bagepalli in C.C.No.77/2013 dated
17.07.2014 preferred this revision petition.
2. Parties to the revision petition are referred with
their ranks as assigned in the trial Court for the sake of
convenience.
3. Heard the arguments on both sides.
4. After hearing the arguments of both sides and
on perusal of the trial Court records, so also the judgment
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of both the Courts below, the following points arise for
consideration:
i. Whether the impugned judgment of first
appellate Court in confirming the judgment
of the trial Court for the offence punishable
under Section 379 of IPC and Section 21 of
the Mines and Minerals (Development and
Regulation) Act, 1957 (hereinafter referred
to as 'the MMDR Act', for brevity) is
perverse, capricious and legally not
sustainable?
ii. Whether any interference of this Court is
required?
5. On careful perusal of oral and documentary
evidence placed on record by the prosecution, it would go
to show that on 18.09.2011 at 10.30 a.m. PW-1
R.Narayana, the Deputy Tahasildar of Bagepalli, received
credible information that some unknown persons are
unauthorizedly extracting and loading the sand into the
Tractor Trailer bearing Reg.No.KA-40-T-7026 and KA-40-
T-7027 from the canal situated near Devikunte forest area
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on the way to Picchalavaripalli Village in Sy.No.28 of the
said village. Accordingly, PW-1 Sri.R.Narayana along with
staff and H.C.No.108 of Bagepalli Police Station, visited
the place of incident at Devikunte forest area. On keeping
watch, they found accused Nos.1 and 2 were extracting
and loading the sand into the trailer attached to the
tractor. On seeing PW-1 R.Narayana with his staff and the
Police, the persons who were loading the sand ran away
from the place. On enquiry with the villagers, PW-1
R.Narayana came to know the name of driver of the
tractor is one Srinivas S/o.Narayanappa and the owner of
the tractor's name is Venkataramana Reddy
S/o.Venkatanarasa Reddy. Therefore, the tractor and
trailer loaded with sand came to be seized under the
panchanama. On coming to the police station, R.Narayana,
the Deputy Tahasildar, filed the complaint. On these
allegations made in the complaint, the Investigating
Officer, after having completed the investigation, filed the
charge sheet.
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6. The trial Court, after hearing the arguments of
both sides and on appreciation of oral and documentary
evidence, convicted the accused for the offences alleged
against them and imposed sentence as per the order of
sentence. The said judgment of conviction and order of
sentence was challenged by the accused before the first
appellate Court. The first appellate Court, after re-
appreciation of evidence, has dismissed the appeal and
confirmed the judgment of conviction and order of
sentence passed by the trial Court.
7. Learned counsel for revision petitioners/accused
has vehemently argued that taking cognizance on the
charge sheet filed by the Investigating Officer for the
offence punishable under Section 379 of IPC and Section
21 of the MMDR Act itself is unsustainable in law. It is only
the authorized officer under the MMDR Act has power to
file the complaint and investigate the offence under the
MMDR Act. The independent material witness for seizure of
sand loaded in the tractor have not supported the case of
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prosecution. The Courts below have not properly
appreciated the evidence on record and erroneously
recorded the finding in convicting the accused. Therefore,
interference of this Court is required.
8. Per contra, learned HCGP submits that there is
no legal bar for the concerned Police Station to file the
charge sheet for the offence punishable under Section 379
of IPC. The seizure of tractor in question loaded with sand
without there being any pass or permit, has been proved
by the prosecution and the findings recorded by both the
Courts below are based on legal evidence on record and
same does not call for interference by this Court.
9. The independent witness PW-3 Venkatesh has
not supported the case of prosecution. PW-4 Ameer
Basha, PW-5 Narasimha Reddy panch witnesses to the
seizure panchanama Ex.P-8 and PW-6 Nanji Reddy and 7
Venkatarama Reddy, panch witnesses to Spot mahazar
Ex.P-9 have not supported the case of the prosecution.
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PW-9 Mohammed Amanulla, Forest Officer, has also not
supported the case of prosecution.
10. Learned counsel for revision petitioners/accused
relied on the judgment of co-ordinate bench of this Court
in Narayanaswamy S/o.Gangappa vs. The State of
Karnataka in Crl.RP.558/2015 dated 04.11.2019, wherein
judgment of Hon'ble Apex Court in State of NCT of Delhi
vs. Sanjay reported in AIR 2015 SC 75 has been taken
into consideration and guidelines have been laid down for
taking cognizance of offence punishable under Section 21
of the MMDR Act and Section 379 of IPC, wherein it has
been held that so far as theft of minor minerals including
the sand from the river bed, taking action by the Police
under Section 22 is not absolute bar for such action. The
restriction imposed under the MMDR Act and remedy
provided therein is only for initiation criminal prosecution
against the accused by filing complaint before the
competent authority. In case of offence covered under
Section 4 of the MMDR Act, it is only the Officer
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empowered and authorized under the Act shall exercise all
powers including making complaint before the
jurisdictional Magistrate. Where the case is based on theft
of sand from the Government land, the Police can register
the case, investigate the same and submit final report as
contemplated under Section 173 of Cr.P.C. before the
jurisdictional Magistrate for taking cognizance as
contemplated in terms of Section 190(1)(d) of Cr.P.C. It is
made clear that the Special Court has no jurisdiction to
receive the report from the Investigating Officer and to
receive any private complaint under the MMDR Act directly
from the authorized officer for taking cognizance of the
offence either under the MMDR Act or any other penal
laws.
11. In the present case, PW-1 R.Narayana along
with his officials effected raid and drawn panchanama,
further seized incriminating materials in the presence of
panch witnesses. The charge sheet is also filed for the
offence punishable under Section 379 of IPC and Section
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21 of the MMDR Act. The trial Court has also framed the
charge under Section 379 of IPC and Section 21 of the
MMDR Act and trial has taken place. The trial Court has
convicted both the accused for the offence punishable
under Section 379 of IPC and Section 21 of the MMDR Act.
When the Magistrate Court has no jurisdiction to try the
offence punishable under Section 21 of the MMDR Act, the
conviction of accused Nos.1 and 2 for the said offence
cannot be legally sustained.
12. The taking of cognizance by Trial Court for the
offence punishable under Section 21 of MMDR Act and the
trial for the said offences is contrary to the procedure
contemplated for contravention of Section 4 under MMDR
Act and conviction under the MMDR Act cannot be legally
sustained. The independent panch witnesses PW.3
Venkatesh and PW.6 Nanjireddy to the seizure
panchanama Ex.P.9, further PW.4 Amir Pasha and PW.5
Narasimhareddy panch witnesses to the spot panchanama
Ex.P.9 have not supported the case of prosecution. The
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other independent witnesses PW.9 Mohammed Amanulla
range forester, PW.11 Venkatnarayana forest guard have
not supported the case of prosecution. The search and
seizure has to be followed in terms of the provisions under
the MMDR Act. The Investigating Officer has not filed the
charge sheet only for the offence punishable under Section
379 of IPC for theft of sand, but the charge sheet is also
filed under Section 21 of the MMDR Act and for the said
offence also cognizance was taken and trial has been
conducted. The search and seizure of the sand alleged to
have been committed theft has not been proved by the
prosecution out of the evidence placed on record. The
contrary findings recorded by both the Courts below
cannot be legally sustained and same requires interference
by this Court. Consequently, proceed to pass the
following:
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ORDER
Revision petition filed by revision petitioners/accused
Nos.1 and 2 is hereby allowed.
The judgment of the first appellate Court on the file
of I Additional District & Sessions Judge, Chikkaballapura
in Crl.A.No.45/2014 dated 25.04.2015 in confirming the
judgment of the trial Court on the file of the Civil Judge &
JMFC, Bagepalli in C.C.No.77/2013 dated 17.07.2014 are
hereby set aside.
The revision petitioners/accused Nos.1 and 2 are
hereby acquitted for the offence punishable under Section
379 of IPC and Section 21 of the MMDR Act.
The bail bonds of accused Nos.1 and 2 shall stand
discharged.
The fine amount, if any, deposited by the revision
petitioners/accused Nos.1 and 2 before the trial Court is
ordered to be refunded to the accused.
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Registry to transmit the records along with copy of
this order to the trial Court forthwith.
SD/-
JUDGE
BSR
