V Selvaraj vs The State Of Karnataka
2023 Latest Caselaw 5044 Kant

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                                                        NC: 2023:KHC:26651
                                                         CRL.P No. 1925 of 2023




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 31ST DAY OF JULY, 2023

                                               BEFORE
                                THE HON'BLE MR JUSTICE K.NATARAJAN
                                CRIMINAL PETITION NO. 1925 OF 2023
                      BETWEEN:

                      1.    V SELVARAJ
                            AGED ABOUT 67 YEARS,
                            S/O LATE MR.VEDAN
                            PROPRIETOR, M/S. SUN MINERALS,
                            R/AT IN FRONT OF TALUK OFFICE,
                            CHIKKANAYAKANAHALLI TOWN,
                            TUMKUR DISTRICT - 572 214.
                                                                  ...PETITIONER
                      (BY SRI. SATYANARAYANA S. CHALKE, ADVOCATE)

                      AND:

                      1.    THE STATE OF KARNATAKA
                            REPRESENTED BY THE
                            STATION HOUSE OFFICER
                            CHIKKANAYAKANAHALLI POLICE STATION
Digitally signed by         REPRESENTED BY THE SPP
BHAVANI BAI G
Location: High              HIGH COURT BUILDING,
Court of Karnataka
                            DR B.R. AMBEDKAR VEEDHI,
                            BENGALURU - 560 001.

                      2.    SRI. O. YAYAPPA
                            S/O. OBANAIKA
                            AGED MAJOR,
                            JOINT DIRECTOR,
                            MINES AND GEOLOGICAL SCIENCE DEPARTMENT
                            KANIJA BHAVAN,
                            SPOORTHY LAYOUT,
                            TUMKURU-572 104.
                                                              ...RESPONDENTS
                      (BY SRI. K. NAGESHWARAPPA, HCGP FOR R1 AND R2)
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                                            NC: 2023:KHC:26651
                                            CRL.P No. 1925 of 2023




     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING TO A. SET ASIDE THE ORDER DATED
08.06.2018 IN C.C.NO.76/2010, PASSED BY THE LEARNED
PRINCIPAL CIVIL JUDGE AND JMFC AT CHIKKANAYKANAHALLI
AND FURTHER TO DISCHARGE THE PETITIONER, UNDER SUCH
TERMS CONDITIONS THAT THIS HONBLE COURT DEEMS
NECESSARY.

     THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
                               ORDER

This petition is filed by the petitioner under Section 482

of Cr.P.C. for setting aside the order of taking cognizance dated

08.06.2018 in C.C.No.76/2010 passed by the Principal Civil

Judge and JMFC, Chikkanayakanahalli for dismissing the

discharge application and also to set aside the order dated

28.11.2022 in Crl.R.P.No.10020/2018 passed by the V

Additional District and Sessions Judge, Tiptur.

2. Heard the arguments of learned counsel for the

petitioner and learned High Court Government Pleader for the

respondent Nos.1 and 2.

3. The case of the prosecution is that on the complaint

filed by the one Jayappa, the Deputy Director of Mines and

Geology Department, Tumkur on 25.02.2006 before the

Chikkanayahalli Police alleging that this petitioner is said to be

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

a Contractor working under M/s. Balaji Mining produce

Company illegally extracted the Iron ore and transported along

with the other mining companies belongs to one Basanth

Poddar of Mining Licence No.2187. After filing the complaint,

the Police investigated the matter and filed the charge sheet.

The petitioner have filed application before the Magistrate

under Section 239 of Cr.P.C for discharging the petitioner which

came to be dismissed and also filed revision which is also came

to be dismissed. Hence, the petitioner is before this Court.

4. The learned counsel for the petitioner has

contended mainly on the ground that though there was a bar

under Section 22 of the Mines and Mineral (Development and

Regulation) Act, 1957 (for short 'MMDR Act') taking cognizance

by the Court on the Police report except on the complaint filed

under Section 2(d) of the Cr.P.C. The Trial Court proceeded

with the taking cognizance which is not correct and further

contended that the very mining Department have themselves

written a letter to the Investigation Officer on 6.6.2008 stating

that the name of M/s. Balaji Produce Company was mentioned

by mistake in the complaint and there is no offence committed

by either M/s. Balaji Produce Company or through their

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

contractors represented by this petitioner and in spite of the

same, the Trial Court as well as the Revisional Court dismissed

the application which is not correct. Learned counsel further

contended that one Nawab who is also a Manager of M/s. Balaji

Minerals filed the petition and got quashed the criminal

proceedings in Crl.P.No.389/2013 dated 6.11.2013 and

therefore, prayed for allowing the petition.

5. Per contra, learned High Court Government Pleader

objected the petition and contended that though the cognizance

cannot be taken as against the MMDR Act, but under Section

379 of IPC, the Court can take cognizance and the case against

this petitioner is all together different from the person against

whom the case was quashed by this Court and therefore,

prayed for dismissing the petition.

6. Having heard the arguments and on perusal of the

records, which reveals, the complainant-the Deputy Director of

Mines and Geology Department has filed a complaint to the

Police on 25.02.2006 alleging that M/s. Balaji Produce Company

is said to be raising contract for extraction of Iron Ore and the

said company has been granted the Mining Lease under the

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

M.L.No.2208 and when they visited the spot, there was a

"Biscuit Pit" and huge quantity of Mining Ores were stored and

it was removed and therefore, the complaint came to be filed

against all the three companies. The Police also investigated

the matter and filed the charge-sheet against the petitioner and

others. Subsequently, Nawab, one of the person belong to the

Balaji Producing Company filed a criminal petition before this

Court where the Co-ordinate Bench of this Court quashed the

criminal proceedings on 6.11.2013 by considering the letter

issued by the Mining Department to the Investigating Officer on

6.6.2008. The letter referred by the Co-ordinate Bench at

paragraph No.3 of the order is read as under:

" 3. Investigation is completed and charge sheet is filed in C.C.No.76/2010. The Deputy Director, Department of Mines and Geology, Tumkur in his letter dated 06.06.2008 addressed to the respondent-police stated that by mistake they have included the name of the petitioner and others. They want to withdraw the complaint against them and requested not to proceed any investigation against them. The same reads as under:

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

"We refer to our above complaint letter addressed to you regarding illegal mining, extracting iron ore, transporting storing out of government land bearing Survey No.130 of Honnebagi Village, Chikkanayakanahalli Taluk by adjacent mining lease holders from a pit called as "Biscuit Pit". In the said letter we accused, among other, M/s.Balaji Produce Company, Chennai of being involved in the illegal mining through one Mr.V.Selvaraj, Proprietor of M/s.Sun Minerals.

Subsequently a FIR No.20/2006 was registered under Section 379 of the Indian Penal Code and Section 21 of the Mines & Minerals (Development and Regulation) Act. The FIR named six persons as accused; one among who were Mr. Ravindra Kumar Bhuwalka, Partner, Balaji Produce Company and another was Mr.B.S.Nawab, Manager, Balaji Produce Company.

        Based        on      representations         made       by
M/s.Balaji Produce           Company including vide their

letter dated 28/04/2008 and by studying various legal court papers, documents, and letters including the Joint Director (South Zone) report dated 25/11/2004 to the Director Department of Mines & Geology, we are now of the opinion that M/s.Balaji Produce Company's name in the complaint letter was given by mistake. There

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

seems to be no evidence to accuse M/s.Balaji Produce Company to have committed the crime either themselves or through their alleged contractor M/s.Sun Minerals.

Hence we wish to withdraw the name of M/s.Balaji Produce Company as accused from our complaint letter. We request you to kindly delete the names of Mr. Ravindra Kumar Bhuwalka and Mr.B.S.Nawab from the said FIR 20/2006. Further in the interest of justice, we also request you not to proceed on any investigation nor file any charges against M/s.Balaji Produce Company, Mr. Ravindra Kumar Bhuwalka or Mr.B.S.Nawab or any other partners or employees of the mentioned company."

7. On perusal of the said order, it is categorically

mentioned by the Mining Department that they have

mistakenly mentioned the name of M/s. Balaji Produce

Company and the said M/s. Balaji Produce Company not

committed any Crime either themselves or through their

alleged contractors M/s. Sun Minerals. The said M/s. Sun

Mineral companies represented by this petitioner-V.Selvaraj.

Such being the case, the question of proceeding the case

against the petitioner does not arise as there is a categorical

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letter and admission made by the Mining Mineral Department

forwarding to the Investigating Officer. That apart, to

corroborate the said contention, paragraph 4 of the complaint

is also referred as under:

"4. The Joint Director in his Inspection report dated 25.11.2004, has indicated that on 17-7-04, it was noticed that Sri Basanth Poddar was doing illegal mining in the area using sophisticated mining Machineries and it was stopped by him. The Joint Director also reports that he has also instructed Sri Balakrishna, Manager of the Co., not to undertake mining operation in this area. He further reports that Sri Basanth Poddar has transported the Iron Ore so removed from hereby illegal mining by using permits of M.L.No.2187 belonging to Smt. Kamala bai (Copy of the report enclosed)"

8. On bare reading of the complaint at paragraph No.4

which clearly mentioned that one Basanth Poddar who is having

Mining Licence No.2187 belongs to one Kamala Bai was doing

the illegal extraction of mining. Therefore, based upon the

report of the Joint Director and Inspection Report dated

25.11.2004, which reveals, M/s. Balaji Produce Company is not

NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

at all doing any illegal mining over the Government land which

was referred as one Basanth Poddar was doing the illegal

mining which belong to one Kamala Bai in M.L.No.2187. Based

upon the said report, the Deputy Director of Mining and

Geology Department written a letter on 6.6.2008 to delete the

names of this Balaji Produce Company and the Sun Minerals

company. However, in the last paragraph, except stating M/s.

Balaji Produce Company, but not mentioned the name of this

petitioner, that itself is not a ground to proceed with the case

against this petitioner as there is no material against this

petitioner to frame the charge and to go for the trial.

9. That apart, as likely contended by the learned

counsel for the petitioner that under Section 22 of the MMDR

Act, there is a bar for taking cognizance on the Police report.

Admittedly, the Trial Court in its order even not considered

what is the offence if the cognizance was taken except taking

cognizance and issued process without showing the provision

under Section 21 of the MMDR Act and there is a bar for taking

cognizance on the Police report which is not properly

considered by the Trial Court while issuing the process by

taking cognizance.

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NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

10. The learned counsel for the petitioner has relied

upon the judgment of the Hon'ble Supreme Court in the case of

State vs. Sanjay reported in (2014) 9 SCC 772 in

Crl.A.No.499/2011 and connected matters, the Hon'ble

Supreme Court has also taken the view at paragraph No.70 of

the judgment that the Court cannot take cognizance on Police

report. In this case, taking cognizance by the Magistrate on the

Police report is illegal.

11. That apart, when the complaint itself does not

disclose any cognizable offence against this petitioner and the

letter of the Deputy Director of the Mines and Minerals

Department dated 6.6.2008, that itself goes to show that there

is no material placed on record against this petitioner. Such

being the case, the Trial Court as well as the First Appellate

Court i.e., the Revisional Court committed error in dismissing

the application filed by the petitioner. Therefore, I am of the

view, the petitioner has made out the case for quashing the

criminal proceedings.

12. Accordingly, I proceed to pass the following order:

The petition is allowed.

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NC: 2023:KHC:26651 CRL.P No. 1925 of 2023

The order of the Trial Court dated 08.06.2018 in

C.C.No.76/2010 passed by the Principal Civil Judge and JMFC,

Chikkanayakanahalli as well as the order of Revisional Court

vide order dated 28.11.2022 in Crl.R.P.No.10020/2018 passed

by the V Additional District and Sessions Judge, Tiptur are

hereby set aside.

The application under Section 239 of Cr.P.C. filed by the

petitioner seeking discharge from the case is allowed and

proceeding against this petitioner is hereby quashed.

In view of disposal of the main petition, pending

I.A.No.1/2023 does not survive for consideration and the same

is disposed of.

Sd/-

JUDGE

GBB