Kerala High Court

Najeeb vs State Of Kerala on 6 January, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

 WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA,
                          1942

                 Crl.Rev.Pet.No.1331 OF 2009

  CRA 243/2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-I,
                        KOTTAYAM

   ST 1145/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
                         VAIKOM


REVISION PETITIONER/S:

     1     NAJEEB, S/O ABDUL REHMAN
           VAZHATHARAYIL HOUSE, MARAVANTHURUTHU KARA,,
           K.S.MANGALAM VILLAGE.

     2     JOSHY, S/O.VISWANATHAN, VALECOTTU HOUSE
           CHUNGOM BHAGOM, EDAVATTOM KARA, K.S.MANGALAM
           VILLAGE.

     3     REMANAN,S/O.VASU, MUTHUKUZHY HOUSE
           KANJIPALAM BHAGOM, K.S.MANGALAM KARA,
           K.S.MANGALAM VILLAGE.

           BY ADV. SRI.S.RAJEEV

RESPONDENT/S:

           STATE OF KERALA
           HIGH COURT OF KERALA,ERNAKULAM(CRIME NO.406
           OF, 2006 OF VAIKOM POLICE STATION).


OTHER PRESENT:

           SR.PP.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 06.01.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 Crl.Rev.Pet.No.1331 OF 2009

                                 ..2..



                              O R D E R

The revision petitioners are the accused in ST

No. 1145 of 2006 on the file of the Judicial

First Class Magistrate Court, Vaikom and the

appellants in Crl. Appeal No. 243 of 2008 on

the file of the Additional Sessions court

(Adhoc)-I, Kottayam. The offences alleged

against the accused are punishable under

Sections 4(1) and 21(1)(4) of the Mines and

Minerals (Development and Regulation) Act,

1957 (hereinafter referred to as, "the MMDR

Act").

2. The trial court convicted the accused 1 to 3

under Section 58(1) of the Kerala Minor

Mineral Concession Rules (hereinafter referred

to as, "the Rules") and sentenced to undergo

simple imprisonment for six months and to pay

a fine of Rs.5,000/- each and in default of Crl.Rev.Pet.No.1331 OF 2009

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payment fine to undergo simple imprisonment

for 15 days each more.

3. Challenging the conviction and sentence

imposed by the trial court, the accused

preferred Crl. Appeal No. 243 of 2008 and the

appellate court, by its judgment dated

18.08.2008, dismissed the appeal confirming

the judgment of conviction and sentence

imposed by the trial court. Feeling aggrieved,

the accused are before this Court in revision.

4. The prosecution case, in brief, is that on

16.06.2006 at 10.15 am, the Circle Inspector

of Police, Vaikom, received a reliable

information that the accused 2 and 3 had been

loading river sand in the lorry bearing

Reg.No.KL-8X 5755, of which the 1st accused was

the driver, which was collected by the 3 rd

accused unauthorizedly from Moovattupuzha

river, the Circle Inspector of Police and

party rushed to the scene of occurrence, Crl.Rev.Pet.No.1331 OF 2009

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caught the accused red-handed, seized the

lorry and registered the case against the

accused 1 to 3 for the aforesaid offences.

5. Heard Sri.S.Rajeev, the learned counsel for

the revision petitioners; and the

Sri.M.S.Breez, the learned Senior Public

Prosecutor for the respondent-State.

6. The learned counsel for the revision

petitioners submitted that as per Section 22

of the MMDR Act, no court shall take

cognizance of any offence punishable under the

MMDR 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. According

to him, this is a case, where PW4, the Circle

Inspector of Police, initiated prosecution

under Section 4(1) of the MMDR Act without

resorting to the provisions contemplated under

the MMDR Act. It was contended that PW4 was Crl.Rev.Pet.No.1331 OF 2009

..5..

not authorized by the Central Government or

the State Government to initiate prosecution

under the MMDR Act. Elaborating on the

submission, the learned counsel contended that

although the case was lodged under Section

4(1) of the MMDR Act, the trial court

convicted the accused for the offence

punishable under Rule 58(1) of the Rules,

which was formulated in accordance with the

provisions contained under the MMDR Act. The

sum and substance of the contention is that

cognizance of the offence as contemplated

under the MMDR Act or the Rules framed

thereunder without resorting to Section 22 of

the MMDR Act is highly illegal. It is further

contended that the Rules have no application

in Kerala after the enactment of the Kerala

Protection of River Banks and Regulation of

Removal of Sand Act, 2001, pertaining to river

sand is concerned.

Crl.Rev.Pet.No.1331 OF 2009

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7. In Jayant Etc. v. State of Madhya Pradesh

[2020 KHC 6672], the apex court held in

paragraph 13 of the judgment as hereunder;

"13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis - a - vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under:

i)that the learned Magistrate can in exercise of powers under S.156(3) of the Code order / direct the concerned In - charge / SHO of the police station to lodge / register crime case / FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under S.22 of the MMDR Act shall not be attracted;

ii)the bar under S.22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process / summons for the offences under the MMDR Act and Rules made thereunder;

iii)for commission of the offence under the 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 and Rules made thereunder; and

iv)that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a magistrate passes an order under S.156(3) of the Code and directs the concerned In - charge / SHO of the police Crl.Rev.Pet.No.1331 OF 2009

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station to register / lodge the crime case / FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In - charge of the police station / investigating officer submits a report, the same can be sent to the concerned magistrate as well as to the concerned authorised officer as mentioned in S.22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process / summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate.

v)in a case where the violator is permitted to compound the offences on payment of penalty as per sub-S.1 of S.23A, considering sub-S.2 of S.23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-S.2 of S.23A shall not affect any proceedings for the offences under the IPC, such as, S.379 and S.414 IPC and the same shall be proceeded with further."

Going by the dictum laid down, it is clear

that cognizance of an offence punishable under

the MMDR Act or the Rules framed thereunder

shall be taken only upon a written complaint

made by a person authorized in this behalf by Crl.Rev.Pet.No.1331 OF 2009

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the Central Government or the State

Government.

8. In the case on hand, PW4 is admittedly not an

authorized officer under the MMDR Act.

Therefore, on a fair reading of Section 22 of

the MMDR Act, the bar would clearly be