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Karnataka High Court
Abdul Rasheed vs The State Of Karnataka on 27 March, 2026
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WP NO.203549 OF 2025
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
WRIT PETITION NO. 203549 OF 2025 (GM-RES)
BETWEEN:
ABDUL RASHEED
S/O ABDUL REHMAN
AGED ABOUT 61 YEARS
R/AT NO.4-8-75, KEB COLONY
SEDAM TALUKA-585222
KALABURAGI DISTRICT.
...PETITIONER
(BY SRI. YASHAS S. DIKSHIT, ADVOCATE
AND SRI.RAVEENDRA G. KOLLE, ADVOCATE)
AND:
1 THE STATE OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
BENGALURU-560001.
2 THE DIRECTOR AND COMMISSIONER
Digitally signed by DEPT. OF MINES & GEOLOGY
SHIVALEELA
DATTATRAYA KHANIJ BHAVAN, RACE COURSE ROAD
UDAGI
Location: HIGH
BENGALURU-560001.
COURT OF
KARNATAKA
3 THE GEOLOGIST
O/O THE DEPUTY DIRECTOR
DEPARTMENT OF MINES & GEOLOGY
KALABURAGI-585102
...RESPONDENTS
(BY SRI.GOPALKRISHNA B. YADAV, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A WRIT OF CERTIORARI OR ANY OTHER ORDER OR
DIRECTION DIRECTING TO QUASH OR SET ASIDE ALL
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WP NO.203549 OF 2025
FURTHER PROCEEDIGNS IN PCR NO.25/2025 PENDING ON THE
FILE OF LEARNED CIVIL JUDGE AND JMFC, SEDAM, PURSUANT
TO A PRIVATE COMPLAINT DATED 17.05.2025 FILED BY THE
3RD RESPONDENT/COMPLAINANT UNDER SEC. 223 OF BNSS,
2023 PRODUCED AT ANNEXURE-A AND B RESPECTIVELY.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 23.03.2026, COMING ON FOR
"PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT MADE
THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
CAV ORDER
1. Petitioner has preferred this writ petition under Articles
226 and 227 of Constitution of India read with Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, seeking following
relief:
"Issue a writ of certiorari or any other order or
direction directing to quash or set aside all further
proceedings in PCR No.25/2025 pending on the file
of learned Civil Judge and JMFC, Sedam pursuant
to a private complaint dated 17.05.2025 filed by
the 3rd Respondent/Complainant under Section 223
of Bharatiya Nagarik Suraksha Sanhita, 2023."
2. Sri Raveendra G. Kolle, learned Counseil appearing for
the petitioner would submit that the complainant Geologist is
never a competent Authority nor an authorised person to lodge
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a private complaint under Section 223 of BNSS, 2023 for the
offences section 4(1), 4(1-A) and 21 of MMDR Act, 1957 and
also under Rules 3(1), 31-U(8), 31-W(1) and (6) and 42 of
KMMC Rules, 1994. The Gazette notification dated 21st January
2014 relied upon by the complainant, authorise him to exercise
the powers only under Rules 43(3) and 46 of KMMC Rules and
not otherwise. Since no allegation in the impugned complaint
pertains to Rules 43(3) and 46 of KMMC Rules, the entire
criminal proceeding vitiates and is liable to be quashed at the
threshold. He would further submit that in exercise of powers
conferred under Section 15(1) of MMDR Act, the State
Government has framed the Rules governing the regulation of
minor minerals. Consequently, the provisions of parent Act
1957, which primarily governs the major minerals, cannot be
directly invoked in the present case, which is in respect of
minor minerals. Even otherwise he would submit that Section
22 of MMDR Act, no court shall take cognizance of offences
punishable under this Act or any Rules made thereunder,
wherein a separate mechanism has been provided to take
cognizance of offences in respect of minor minerals. The
expression "any Rules made thereunder" Refers to the Rules
framed by the Central Government vide Entry 54 of Union List-I
of Seventh Schedule of Constitution of India, which does not
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extend to the delegated or subordinate legislation framed by
the State Government under Section 15(1) of the Act vide
Entry 23 of State List-II of Seventh Schedule. As such, the
very gazette Notification relied upon by the complainant to
prosecute the petitioner is inherently defective and contrary to
law.
3. He would further submit that the offences alleged under
Sections 4(1) and 4(1-A) read with Section 21 of MMDR Act
1957, has no relevance in the case on hand. In the instant
case allegation against the petitioner is as regards to the
extraction of sand beyond the quarry lease area, which
admittedly, is a minor mineral and governed by KMMC Rules,
whereas section 4(1), as a whole, is applicable to major
minerals. Since the petitioner has not committed any offence
under MMDR Act, the penalties under Section 21 of the MMDR
Act cannot be fastened on the petitioner. The petitioner cannot
be punished for the offences that have not been established
either factually or on legal stand point. He would submit that
even otherwise the alleged violation under Section 4(1-A) of
the MMDR Act and Rule 42 of KMMC Rules is highly illegal,
erroneous, and without any iota of evidence. Nothing has been
seized by the respondents during the course of investigation.
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WP NO.203549 OF 2025
In the absence of the same, the entire allegation fall to earth.
As a matter of fact, the violation of Rule 42 of KMMC Rules and
Section 4(1-A) of the MMDR Act can be involved only when the
mineral has been physically transported through road, Rail or
any other means of transport without obtaining mineral
dispatch permit. Here it is not the case as such. Hence the
allegation in so far as Section 4(1-A) of MMDR Act and Rule 42
of the KMMC Rules is highly illegal and erroneous. To
substantial his argument, he places reliance on the decision of
under Supreme Court in the case of HARYANA MINING
COMPANY v. STATE OF HARYANA AND OTHERS reported in
2022 SCC ONLINE SC 577.
4. Having given my anxious consideration to the
submissions advanced by the learned Counsel for the
petitioner, I have examined the materials placed before the
court.
5. The complainant Abdul Hafiz Shaikh, Geologist, Office of
the Deputy Director of Mines and Geology, Gulbarga has filed
complaint under Section 223 of BNSS, 2023 against the
accused for commission of offence under Sections 42 and 44 of
MMDR Act and KMMC Rules. Along with the complaint, the
complainant has produced panchanama dated 14th May 2025.
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WP NO.203549 OF 2025
After filing the complaint, learned Civil Judge and JMFC has
registered a case in PCR No.25 of 2025 and the case was
posted for hearing on 17th June, 2025. Thereafter, the case was
being adjourned from time to time. After filing complaint, the
learned Civil Judge and JMFC has not passed any order till this
date. In view of provisions of sub-section (2) of Section 223 of
Chapter XVI of BNSS 2023, The Magistrate shall not take
cognizance of the complaint against a Public Servant. The
provisions of the said Section reads as under:
"223. Examination of complainant.
(2) A Magistrate shall not take cognizance on a complaint
against a public servant for any offence alleged to have
been committed in course of the discharge of his official
functions or duties unless-(a) such public servant is
given an opportunity to make assertions as to the
situation that led to the incident so alleged; and(b) a
report containing facts and circumstances of the incident
from the officer superior to such public servant is
received.
224. Procedure by Magistrate not competent to
take cognizance of case.
If the complaint is made to a Magistrate who is not
competent to take cognizance of the offence, he shall,-
(a) if the complaint is in writing, return it for
presentation to the proper Court with an endorsement to
that effect;(b) if the complaint is not in writing, direct
the complainant to the proper Court.
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225. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an
offence of which he is authorised to take cognizance or
which has been made over to him under section 212,
may, if he thinks fit, and shall, in a case where the
accused is residing at a place beyond the area in which
he exercises his jurisdiction, postpone the issue of
process against the accused, and either inquire into the
case himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit, for
the purpose of deciding whether or not there is sufficient
ground for proceeding:
Provided that no such direction for investigation shall be
made,-
(a) where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Session; or
(b) where the complaint has not been made by a Court,
unless the complainant and the witnesses present (if
any) have been examined on oath under section 223.
(2) In an inquiry under sub-section (1), the Magistrate
may, if he thinks fit, take evidence of witnesses on oath:
Provided that if it appears to the Magistrate that the
offence complained of is triable exclusively by the Court
of Session, he shall call upon the complainant to produce
all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by
a person not being a police officer, he shall have for that
investigation all the powers conferred by this Sanhita on
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an officer in charge of a police station except the power
to arrest without warrant."
6. In view of Proviso 2 to Section 223 of Chapter XVI of
BNSS-2023, no cognizance for offence shall be taken by the
Magistrate without giving accused an opportunity of being
heard. In the case on hand, after registration of the case in
PCR No.25 of 2025, the learned magistrate has not initiated
any proceedings against the accused. The learned magistrate
has posted the case for hearing, even the learned magistrate
has not issued any notice to the respondent to appear before
the Court to answer the private complaint filed by the
complainant. Before issuance of notice, and before passing any
adverse order against the accused, the respondent has filed
this petition. Even if the Magistrate issues notice to the
respondent, then also the learned Magistrate has to provide an
opportunity to the accused/respondent to file their
objections/submissions as to the maintainability of the
complaint.
7. In the case on hand without passing any adverse order by
the learned Magistrate, the petitioner has filed present writ
petition to quash the proceedings in PCR No.25 of 2025 on the
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file of Civil Judge and JMFC, Sedam, which is not sustainable
under law. Resultantly, I proceed to pass the following:
ORDER
Petition is dismissed.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
