Karnataka High Court
Vasant vs The State Through on 30 June, 2025
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CRL.RP No. 200098 of 2020
C/W CRL.RP No. 200099 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRL.R.P. NO. 200098 OF 2020 C/W
CRL.R.P. NO. 200099 OF 2020
(397(Cr.PC)/438(BNSS))
IN CRL.R.P. NO. 200098 OF 2020
BETWEEN:
1. RAJKUMAR
S/O SHANKAR KHAJURI
AGE.40 YEARS, OCC.DRIVER
R/O LADCHINCHOLI VILLAGE
TQ ALAND, DIST.KALABURAGI - 585 113
2. TAYAPPA S/O TIPPANNA DANDGUTTI
AGE.45 YEARS, OCC.DRIVER
Digitally signed by
R/O WADDAR GALLI, ALAND
SREEDHARAN DIST.KALABURAGI - 585 113 ... PETITIONERS
BANGALORE SUSHMA
LAKSHMI
Location: High Court of (BY SRI. RAJESH DODDAMANI, ADV.)
Karnataka
AND:
THE STATE
THROUGH AFZALPUR POLICE STATION
NOW REP. BY ADDL. SPP HIGH COURT
OF KARNATAKA, AT KALABURAGI BENCH - 585 103
... RESPONDENT
(BY SRI.JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP. IS FILED UNDER SECTION 397 (1) OF
CR.P.C PRAYING TO, CALL FOR RECORDS AND EXAMINE THE
RECORDS IN C.C.NO.62/2014 AND SET ASIDE THE JUDGMENT
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CRL.RP No. 200098 of 2020
C/W CRL.RP No. 200099 of 2020
HC-KAR
AND SENTENCE PASSED BY THE JMFC AT AFZALPUR DATED
12.09.2018 PASSED IN C.C.NO.62/2014 AND FURTHER SET
ASIDE THE ORDER OF CONVICTION PASSED BY THE III ADDL.
DISTRICT AND SESSIONS JUDGE, KALABURAGI IN CRL.APPEAL
NO.55/2018 DATED 29.09.2020 AND BE PLEASED TO ACQUJIT
THE REVISION PETITIONER IN C.C.NO.62/2014 REGISTERED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF
INDIAN PENAL AND 21(1) OF MMDR ACT, IN THE INTEREST OF
JUSTICE AND EQUITY.
IN CRL.R.P. NO. 200099 OF 2020
BETWEEN:
1. VASANT
S/O LADAPPA MANE
AGED 64 YEARS OCC: DRIVER
R/O MADAJ VILLAGE TQ & DIST., UMARGA
MAHARASHTRA STATE - 413 606
2. ANIL
S/O AMRUTH BATGER
AGED 50 YEARS, OCC: DRIVER
R/O HALEPET, TQ & DIST, UMARGA
MAHARASHTRA STATE - 413 606
3. SATISH
S/O CHANDU JADHAV
AGED 32 YEARS, OCC.DRIVER, R/O NALDURG
MAHARASHTRA STATE - 413 606
4. SURESH
S/O SIDDAPPA ALLABIDIRI
AGED 40 YEARS, OCC.DRIVER
R/O MIRAJAGI
MAHARASHTRA STATE - 413
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CRL.RP No. 200098 of 2020
C/W CRL.RP No. 200099 of 2020
HC-KAR
5. SANTOSH
S/O SHIVASHANKAR
AGED 38 YEARS, OCC DRIVER
R/O MAINDARGI VILLAGE
TQ AFZALPUR DIST.
KALABURAGI - 585 301 ... PETITIONERS
(SRI.RAJESH DODDAMANI, ADV.)
AND:
THE STATE THROUGH
AFZALPUR POLICE STATION
NOW REP. BY ADDL. SPP HIGH COURT
OF KARNATAKA, AT KALABURAGI BENCH - 585 103
... RESPONDENT
(BY SRI.JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP. IS FILED UNDER SECTION 397 OF CR.P.C
PRAYING TO CALL FOR RECORDS AND EXAMINE THE RECORDS
IN C.C.NO.62/2014 AND SET ASIDE THE JUDGMENT AND
SENTENCE PASSED BY THE JMFC AT AFZALPUR DATED
12.09.2018 PASSED IN C.C.NO.62/2014 AND FURTHER SET
ASIDE THE ORDER OF CONVICTION PASSED BY THE III ADDL.
DISTRICT AND SESSIONS JUDGE, KALABURAGI IN CRL.APPEAL
NO.55/2018 DATED 29.09.2020 AND BE PLEASED TO ACQUJIT
THE REVISION PETITIONER IN C.C.NO.62/2014 REGISTERED
FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF
INDIAN PENAL AND 21(1) OF MMDR ACT, IN THE INTEREST OF
JUSTICE AND EQUITY.
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S RACHAIAH
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CRL.RP No. 200098 of 2020
C/W CRL.RP No. 200099 of 2020
HC-KAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S RACHAIAH)
1. These two petitions are arising out of the same
judgment of conviction and its confirmation order
passed by the Appellate Court.
2. Accused Nos.8 and 12 are the petitioners in Crl.R.P
No.200098/2020 and accused Nos.6, 10, 11, 13 and
14 are the petitioners in Crl.R.P No.200099/2020.
Factual matrix of the case:
3. On 24.02.2013 at about 3.00 p.m., the complainant
received an information that sand was being
transported illegally by the accused in lorries and
the tractors. On receiving the said information, the
complainant went to the spot along with his staff
and panch witnesses. He intercepted the lorries and
enquired the drivers to show the permit to transport
the sand. In the meantime, he also learnt that two
more lorries and one tractor were there in the
riverbed and they were also filling the sand to the
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lorries and tractors. Immediately, he instructed the
officials to take appropriate steps.
4. The complainant after having arrested the accused
and also seized the lorries along with sand,
registered a case before the respondent police. The
respondent - police after registering the case,
conducted the investigation and submitted the
charge sheet for the offences punishable under
Sections 379, 420 r/w 149 of Indian Penal Code (for
short 'IPC') and under Section 21(1) of the Mines
and Minerals (Development and Regulation) Act,
1957 (for short 'MMDR Act').
5. In order to prove the case, the prosecution
examined six witnesses as P.W.1 to P.W.6 and also
got marked 74 documents as Ex.P1 to P.74. The
Trial Court after appreciating the oral and
documentary evidence on record, recorded the
conviction for the offence under Section 379 of IPC
and acquitted for other offences. Being aggrieved
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by the said judgment, the petitioners have
approached the Appellate Court by filing an appeal.
The Appellate Court dismissed the appeal by
confirming the judgment of conviction passed by the
Trial Court. Being aggrieved by the same, the
petitioners have approached this Court by filing the
revision petitions.
6. Heard Sri.Rajesh Doddamani, learned counsel for
the petitioners and Sri.Jamedar Shahabuddin,
learned High Court Government Pleader for the
respondent - State in both the petitions.
7. It is the submission of the learned counsel for the
petitioners that the judgment of conviction and
order on sentence passed by the Trial Court and also
its confirmation order passed by the Appellate Court
is contrary to the facts and law on record. Therefore,
the same is liable to be set aside.
8. It is further submitted that the order of taking
cognizance by the Special Court in respect of the
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offence under Section 21(1) of the MMDR Act is
contrary to the Act. As per the provisions under
Section 30(B) of the said Act, the Special Court has
jurisdiction to take cognizance for the said offences.
Moreover, Section 22 of the Act specifies that, no
Court shall take cognizance of any offence, which is
contrary to the provisions of the Act except under
the written complaint filed by the Authorised Officer.
Such being the fact, the Trial Court committed error
in taking cognizance of all the offences and passed
the impugned judgment, which is liable to be set
aside. Making such submissions, the learned
counsel for the petitioners prays to allow the
petitions.
9. Per contra, the learned High Court Government
Pleader for the respondent - State justified the
concurrent findings of the Courts below and he
further submitted that the Trial Court has rightly
recorded the conviction on the basis of the charge
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sheet submitted by the respondent - police for the
above said offences. The Trial Court has not
recorded the conviction in respect of offence under
Section 21(1) of the MMDR Act, as it has no
jurisdiction. However, the Trial Court is at liberty to
proceed with the offences relating to Indian Penal
Code. Hence, the judgment of conviction passed by
the Trial Court and its confirmation order passed by
the Appellate Court is proper and appropriate.
Therefore, interference with the said findings may
not be proper. Making such submission, the learned
HCGP for the respondent - State prays to dismiss
the petitions.
10. Having heard the learned counsel for the respective
parties and also perused the findings of the Courts
below in recording the conviction, it is appropriate at
this stage, to refer the provisions under Section 22
and Section 30(B) of the MMDR Act, which reads as
under:
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"Section 22 - Cognizance of offences.- No court
shall take cognizance of any offence punishable
under this Act or any rules made thereunder except
upon complaint in writing made by a person
authorised in this behalf by the Central Government
or the State Government."
[30-B. Constitution of Special Courts. - (1) The
State Government may, for the purposes of
providing speedy trial of offences for contravention
of the provisions of sub-section (1) or sub-section
(1-A) of section 4, constitute, by notification, as
many Special Courts as may be necessary for such
area or areas, as may be specified in the
notification.
(2) A Special Court shall consist of a Judge who
shall be appointed by the State Government with
the concurrence of the High Court.
(3) A person shall not be qualified for appointment
as a judge of a Special Court unless he is or has
been a District and Sessions Judge.
(4) Any person aggrieved by the order of the
Special Court may prefer an appeal to the High
Court within a period of sixty days from the date of
such order."
11. On reading the above said provisions conjointly, it
appears that the offences relating to the MMDR Act
has to be dealt with by the Special Court.
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Cognizance in respect to the MMDR Act also to be
taken by the Special Court.
12. In the present case, the Investigation Officer ought
not to have filed the charge sheet in respect of the
offence under Section 21(1) of MMDR Act. However,
the charge sheet has been filed, which is contrary to
the provisions under Section 22 of the MMDR Act.
13. On perusal of findings of the Trial Court and the
Appellate Court, it appears that though the Trial
Court has taken cognizance under MMDR Act, the
conviction has not been recorded in respect of the
said offence, however, proceeded to record the
conviction for the offence under Section 379 of IPC.
14. In this context, it is relevant to refer the judgment
of the Hon'ble Supreme Court in the case of STATE
(NCT OF DELHI) v. SANJAY1. Paragraph Nos.72
and 73, which reads as under:
(2014) 9 SCC 772
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"72. From a close reading of the provisions of the
MMDR Act and the offence defined under Section
378 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, gravel and other minerals from the
river, which is the property of the State, out of the
State's possession without the consent, constitute
an offence of theft. 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 persons. In other words, in a case
where there is a theft of sand and gravel from the
government land, the police can register a case,
investigate the same and submit a final report
under Section 173 CrPC before a Magistrate
having jurisdiction for the purpose of taking
cognizance as provided in Section 190(1)(d) of the
Code of Criminal Procedure.
73. After giving our thoughtful consideration in the
matter, in the light of the relevant provisions of the
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Act vis-à-vis the Code of Criminal Procedure and
the 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 riverbeds
without consent, which is the property of the State,
is a distinct offence under IPC. Hence, for the
commission of offence under Section 378 IPC, 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 authorised officer for taking
cognizance in respect of violation of various
provisions of the MMDR 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 Magistrates
concerned to proceed accordingly."
15. On careful reading of the dictum of the Hon'ble
Supreme Court, the provisions of the MMDR Act and
offence defined under Section 378 of IPC, it is
manifest that the ingredients constituting the
offence are different.
16. In the present case, the petitioners being the drivers
of different lorries were transporting the sand
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without having any valid permit and also with a
dishonest intention to remove the sand from the
riverbed. The evidence of all the witnesses would
indicate that the petitioners have committed the
offence of theft of sand. Hence, the findings of the
Trial Court in recording the conviction for the offence
under Section 379 of IPC and its confirmation order
passed by the Appellate Court are just and proper.
There is no occasion for this Court to interfere with
the said findings. However, the learned counsel for
the petitioners submitted that the petitioners are the
earning members of the family. There are no
criminal antecedents against these petitioners.
Leniency may be shown by considering the nature
and gravity of the offences.
17. Having considered the said submissions and also the
nature and gravity of the offences, I am of the
considered opinion that imposing a fine would be
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appropriate instead of sentencing them for
imprisonment.
18. Hence, I proceed to pass the following:
ORDER
i) The petitions are allowed in part.
ii) The judgment of conviction and order on
sentence dated 12.09.2018 passed in C.C
No.62/2014 by J.M.F.C, Afzalpur and
judgment and order dated 29.09.2020
passed in Crl.A No.55/2018 by the III
Additional District and Sessions Judge,
Kalaburagi, are set aside and modified.
iii) The petitioners are sentenced to pay a
fine of Rs.10,000/- each for offence
under Section 379 of IPC. In default of
payment of fine, the petitioners shall
undergo simple imprisonment for one
year each.
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iv) The Registry is directed to transmit the
record to the Trial Court to execute the
order in accordance with law.
Sd/-
(S RACHAIAH)
JUDGE
TMP/UN
