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Karnataka High Court · body

2017 DIGILAW 1523 (KAR)

Vivek S/o Krishnappa v. State Of Karnataka

2017-11-15

K.N.PHANEENDRA

body2017
ORDER : 1. The petitioners have approached this court for quashing of the proceedings pending before the Principal District and Sessions Judge, Tumakuru, in Special Case No.64/2017 registered for the offence punishable under section 379 of IPC; Rule 44(1) of the Karnataka Minor Mineral Concession Rules; Section 21(1) of the Mines and Minerals (Development and Regulations) Act; and Sections 3, 181, 192(A) and 196 of the Indian Motor Vehicles Act. 2. Before adverting to the grounds urged before this court by the learned counsel appearing for the petitioners, it is just and necessary to have a brief factual matrix of this case on which basis the charge sheet has been laid by the police before the Special Court. 3. The complainant Sri H. Jayanna, Police SubInspector (Respondent No.2 herein) received a credible information on 1/2.4.2015 regarding illegal transportation of sand while he was on night rounds. He also received information from his Official Superior i.e., Deputy Superintendent of Police, who inturn informed the complainant that some persons in order to stealthily make unlawful gain for themselves were transporting sand in Santhe Mavatthur, Kempanahalli, on the way to Bukkasagana, towards Kunigal. On the basis of such information, ASI Gangadaraiah went to that particular place along with his staff and was waiting there from 4.30 a.m. At about 5.30 a.m., they observed several lorries were coming from Santhe MavatthurAmruttur towards Kunigal. They stopped the said lorries on suspicion and found about three lorries were loaded with sand. Immediately, they caught hold of the driver of the lorry No.KA06/C8455 and ascertained his name and address and also ascertained information about other lorries and thereafter, they found that the sand was being stealthily taken from Kannanahalli Hobli and police found that those persons had committed offences. Thereafter, they came to the Police Station along with the lorries and registered a case in Crime No.91/2015 of Kunigal Police Station for the above said offences and after the investigation charge sheet has been laid before the learned JMFC and after committal to the Special Court i.e., Principal District and Sessions Judge, Tumakuru, a case is registered in Special Case No.64/2017. 4. The learned counsel for the petitioners has raised two important questions before this court. 4. The learned counsel for the petitioners has raised two important questions before this court. Firstly, he raised a question that even accepting that an offence under Section 379 of IPC and other offences under the IMV Act are committed, the police have not registered any case though they have specifically received a credible information with regard to commission of cognizable offences as per Section 154 of Cr.PC. Secondly, the Special Court has no jurisdiction to take cognizance and entertain the charge sheet u/s.173 of Cr.P.C. in view of the bar contained u/s.22 of the MMDR Act, 1957 and KMMC Rules, 1994. Therefore, on these grounds, the entire charge sheet deserves to be quashed. FIRST POINT 5. The learned counsel for the petitioners has relied upon various rulings in this regard. Firstly, he has relied upon an unreported decision of this court rendered by me in Crl.P. No.7636 of 2016 between Kurubara Ningappa and State of Karnataka, wherein the learned counsel has drawn my attention to the view of this court, that without registering a case in respect of cognizable offences, no investigation can be done. 6. On careful perusal of the said order passed by me, the factual aspects of the said case is altogether different from the present case. In the said case, this court has categorically observed the factual aspects stating that on 17.7.2015, the Deputy Superintendent of Police received a credible information that within the jurisdiction of Davanagere Rural Police Station near Alur village, some persons were running stone quarry and they were using explosives like detonators, ammonium nitrate etc., for the purpose of exploding the stones without there being any authority, licence or permission from the Government. On the basis of such information the Police Sub Inspector inspected the spot and investigated the matter for the offence punishable under Section 379 and 420 of IPC and also under various provisions of Motor Vehicles Act and etc. Therefore, the above said decision is not applicable invariably to all the cases. It all depends upon facts and circumstances of each case. 7. This court, specifically considered the above said factual aspects and came to the definite conclusion that the provisions invoked are cognizable offences. Therefore, the police could not have proceeded to the spot without registering a case. 8. It all depends upon facts and circumstances of each case. 7. This court, specifically considered the above said factual aspects and came to the definite conclusion that the provisions invoked are cognizable offences. Therefore, the police could not have proceeded to the spot without registering a case. 8. In this regard, under what circumstances the police have to first register a case and proceed with further investigation and under what circumstances the Police can make a preliminary enquiry before registering a case, has been discussed in detail in a recent ruling of the Hon’ble Apex Court reported in AIR 2014 SC 187 between Lalith Kumari and Government of UP and others. It is not necessary to dwell upon the entire decision, but the Conclusion/Directions issued by the Hon’ble Apex Court play a dominant role in disposing of the matter. At paragraph 111 of the said judgment, the following directions have been issued. All the directions are also not necessarily to be quoted here, but relevant guidelines/directions are necessary so far as this case is concerned. (1) Registration of FIR is mandatory u/s.154 of Cr.P.C., if the information discloses a commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. (2) If the information received does not disclose a cognizable offence, but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. (3) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose the reasons in brief for closing the complaint and not proceeding further. 9. Therefore, the above said directions are crystal clear that if the Police Officer is definite that, a cognizable offence is made out on the basis of the allegations received by him, then it is his bounden duty of him to register a Criminal Case before proceeding with the investigation. 9. Therefore, the above said directions are crystal clear that if the Police Officer is definite that, a cognizable offence is made out on the basis of the allegations received by him, then it is his bounden duty of him to register a Criminal Case before proceeding with the investigation. If the information received does not completely disclose a cognizable offence, but according to the Police Officer, if the facts are hazy and there is necessity of inquiry, then he can proceed to make a preliminary inquiry into the matter and thereafter, if he comes to the conclusion that a cognizable offence is made out, then he can register a case and proceed with the matter. 10. In another decision reported in (2008) 5 SCC 368 between Animireddy Venkata Ramana and Others and Public Prosecutor, High court of Andhra Pradesh, wherein it was observed by the Hon’ble Apex Court, at Paragraph 11 of the Judgment in the following manner; “11. xxx. When an information is received by an officer in charge of a Police station, he interms of the provisions of the Cr.P.C., was expected to reach the place of occurrence as early as possible. It was not necessary for him to take that step only on the basis of FIR. Information received in regard to commission of a cognizable offence is not required to be preceded by a FIR. Duty of the state to protect the life of an injured as also an endeavor on the part of the responsible Police Officer to reach the place of occurrence in a situation of this nature.” Though the above said ruling is not in a straight jacket manner applicable to the facts and circumstances of the present case, but it indicates that whenever the Police officer entertains serious doubt with regard to the commission of a cognizable offence, it is the discretion vested with such a Police Officer to go to the spot and ascertain whether there has been commission of a cognizable offence and then he can proceed with the investigation after registration of the case. 11. Having come to the above said conclusion now let me consider the factual aspects of this case with reference to the said Lilith Kumari’s case. 12. The learned counsel has provided copy of the First information which discloses the credible information was received. 11. Having come to the above said conclusion now let me consider the factual aspects of this case with reference to the said Lilith Kumari’s case. 12. The learned counsel has provided copy of the First information which discloses the credible information was received. Before registration of the case and before proceeding to the spot by the Police, the information received only disclosed that some persons were transporting sand from Santhe Mavattur, near Amruttur towards Kunigal for the purpose of unlawful gain. Therefore, it does not clearly indicate the commission of a cognizable offence u/s.379 of IPC. From which place the sand has been lifted, whether it is a Government land or whether it is a river or that sand has been lifted stealthily by persons or with license or permission are not indicated in the said information. Therefore, perhaps that may be the reason, the Investigation Officer first proceeded to the spot in order to ascertain whether really theft of sand has been committed or not and thereafter to take appropriate action. The report of the ASI further indicates that only after reaching the spot and enquiring with the driver and others, the Police came to know that the sand had been stolen from the land at Kagganahalli and thereafter the Police came to the conclusion that the offences had been committed under Section 379 of IPC and registered a case and investigated the matter. 13. Therefore, it all depends upon the facts and circumstance of each case. The court has to consider whether there was an information with reference to any allegation of commission of theft and whether such information is totally sufficient to come to the conclusion that a cognizable offence has been committed so as to register a case before proceeding to investigate the matter. 14. On perusal of the above said facts and circumstances of the case, I am of the opinion that there was no sufficient material for the Police Officer to come to a definite conclusion that there was a commission of a cognizable offence by the accused persons. Therefore, the Police, first proceeded to the spot, ascertained about the commission of cognizable offence and thereafter registered a case and proceeded for further investigation. Therefore, I do not find any fault with the Police officer investigating the matter and filing the charge sheet before the JMFC Court. SECOND POINT. 15. Therefore, the Police, first proceeded to the spot, ascertained about the commission of cognizable offence and thereafter registered a case and proceeded for further investigation. Therefore, I do not find any fault with the Police officer investigating the matter and filing the charge sheet before the JMFC Court. SECOND POINT. 15. Before adverting to the actual facts of this case, it is just and necessary to consider the legal aspect regarding the jurisdiction of the Special Court constituted under the Provisions of MMDR Act, and also the jurisdiction of the Magistrate when offences under MMDR Act and Rules are invoked and also the jurisdiction of the Magistrate if other offences under Indian Penal code and also under any other penal laws, the Magistrate has got jurisdiction to take cognizance and try the matter bearing in mind the principles laid down by the Hon’ble Apex Court in this regard. 16. It is also worth to mention here a decision of the Hon'ble Apex Court reported in AIR 2015 SC 75 between State of NCT of Delhi and Sanjay, wherein the Hon'ble Apex Court has elaborately discussed with regard to the jurisdiction of a Special Court, and under what circumstances, the Special Court can take cognizance of the offence under the MMDR Act and under what circumstances, the Jurisdictional Magistrate can take cognizance of the offence u/s.379 of IPC with reference to the land mafia and transporting of the sand stealthily by some people. It is worth mentioning here the guidelines issued at para Nos.68 to 72, which has in detail, dealt with these aspects and the same are extracted hereunder: “68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code. 70. From a close reading of the provisions of 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, gravels and other minerals from the river, which is the property of the State, out of State’s possession without the consent, constitute an offence of theft. 71. 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 person. In other words, in case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-vis the Code of Criminal Procedure and the Indian 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 river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378, Cr.P.C., 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMRD 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 concerned Magistrates to proceed accordingly.” Further, the Hon'ble Apex Court in the said case has made it amply clear that in a case of breach or violation of the provisions of Section 4 of the MMDR Act, there is a bar u/s.22 of the Act to investigate and submit report to the Police u/s.173 of Cr.PC., because Section 22 of the MMDR Act says that; “Sec.22. No court shall take cognizance of any offence punishable under this act or any rules made there under except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Government.” 17. Therefore, in order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules there under. 18. Therefore, in order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules there under. 18. The Hon'ble Apex Court has also made it clear in the decision cited supra, that, there may be situations where a person without any lease, licence or any authority enters into any Government land, river and extracts sand, and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State and therefore is liable to be punished for committing such offence u/s.378 and 379 of IPC. Merely because non-initiation of proceedings for commission of an offence under the MMDR Act by way of a private 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 Cr.PC. and submit report u/s.173 of Cr.PC before the Magistrate for taking cognizance against such person. 19. Therefore, from the above said decision, it is crystal clear that, if an offence is committed under the MMDR Act and Rules and also u/s.378 and 379 of IPC and other allied offences under Indian Penal Code and also under any other penal Laws for the time being in force, then a private complaint is contemplated under the Act. If specifically MMDR Act or other Rules are to be invoked by the complainant, the police have no jurisdiction to submit report u/s.173 of Cr.P.C. for the offences under the MMDR Act or KMMC Rules, in view of the bar under Section 22 of the MMDR Act. However, investigation so far as it relates to the offences under Indian Penal Code and Other Penal Laws are concerned, they are not bad or vitiated. 20. If a private complaint is filed under the MMDR Act and KMMC Rules, coupled with the other offences under any other laws, by the authorized officer, then the JMFC has got jurisdiction to take cognizance and commit the case to the Special Court to try, not only the offence under the MMDR Act but also under other allied offences allied offences under IPC or any other penal laws for the time being in force. 21. 21. It can be further clarified that if MMDR Act is invoked by the police and they investigated the matter along with the offence under Sections 378 and 379 of IPC and other penal laws for the time being in force, in such an eventuality, if any report u/s.173 of Cr.P.C. is filed before the Special Court, the Special Court gets no direct jurisdiction to take cognizance of the offences as the provisions under MMRD Act or KMMC Rules are invoked and the prohibition contained u/s.22 of the MMDR Act is attracted. 22. Further added to the above, if the Police file the final report invoking the provisions under the MMDR Act and the IPC, and file report before the Jurisdictional Magistrate under section 173 of Cr.PC., then the Jurisdictional Magistrate has no right or jurisdiction to take cognizance so far as the offences under the MMDR Act and KMMC Rules are concerned. However, in view of the above said Supreme Court decision, the Jurisdictional Magistrate is not debarred from taking cognizance of the offence punishable under Sections 378 and 379 of IPC and any other offences under any other penal laws for the time being in force, as there is no legal bar for the Magistrate to take cognizance. 23. It is also worth to note here, that the Special court has not been conferred with original jurisdiction to take cognizance of the offences under the MMDR Act, and Rules, as the Special courts are constituted for the purpose of speedy trial of the offences under the said Act and Rules. Therefore, it goes without saying that, the Cognizance of those offences under the said Act also has to be taken by the jurisdictional Magistrate and after following the due procedure, the Magistrate has to commit the case to the Special Court for trial of the offenders. 24. In this regard, I have carefully perused the entire MMDR Act and Rules. They contain no provision empowering the Special Court to take cognizance directly for the offences under the said Act and Rules. I feel, it is just and necessary to quote here an appropriate decision of the Hon’ble Apex court in this regard. Earlier, when an Act called “The Schedule castes and Schedule Tribes (Prevention of Atrocities) Act 1989”, was enacted, to try the offenders, Special Courts have been constituted. I feel, it is just and necessary to quote here an appropriate decision of the Hon’ble Apex court in this regard. Earlier, when an Act called “The Schedule castes and Schedule Tribes (Prevention of Atrocities) Act 1989”, was enacted, to try the offenders, Special Courts have been constituted. However, there was no provision made empowering the Special Courts to take cognizance of the offences. However, Special Courts in large number of cases have directly taken cognizance and tried the offenders. The Hon’ble Apex court has clarified that until a specific provision empowering the Special Court to take cognizance directly is made, the general provisions of Code of Criminal Procedure have to be followed. 25. In Gangula Ashok and Another Vs State of A.P. reported in (2000) 2 SCC 504 , the Hon'ble Apex Court has observed thus: “Scheduled Castes and Scheduled Tribes (prevention of Atrocities) Act 1989; Sec.14 and 2(1)(d) Special Court: Held it is a court of session designated as special court, which is specified for trial of offences as distinguished for “inquiry” as defied under section 2(g) of Cr.PC. Therefore, it cannot take cognizance directly as a court of original jurisdiction without the case being committed to it by a Magistrate in view of section 193 Cr.P.C. Section 4 and 5 of Cr.P.C., do not indicate any departure from this position”. 26. Subsequently, in view of the above observation made by the Hon’ble Apex Court, the said Act came to be amended, vide Central Act 33 of 1989 amending section 14 of the Act investing original jurisdiction with the special courts to take cognizance and to try the offences under that special enactment. Unless such an amendment is brought to this special Act that is MMDR Act, by way of competent legislation, the Special Courts get no jurisdiction to take cognizance of the offences under the said Act and Rules directly. 27. Section 30 B and 30 C of the Act provide for constitution of Special Courts and its powers. They read as follows; “30B. Constitution of Special Courts.?(1) The State Government may, for the purposes of providing speedy trial of offences for contravention of the provisions of subsection (1) or subsection (1A) 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. They read as follows; “30B. Constitution of Special Courts.?(1) The State Government may, for the purposes of providing speedy trial of offences for contravention of the provisions of subsection (1) or subsection (1A) 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. 30 C. Special Courts to have powers of Court of Sessions ? Save as otherwise provided in this Act, the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to the proceedings before the Special Court and for the purpose of the provisions of this Act, the Special Court shall be deemed to be a Court of Session and shall have all powers of a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a public prosecutor.]” 28. Therefore, it is clear from the above that, the Session’s court designated as special court, has no jurisdiction to take cognizance directly of the offences under the MMRD Act and Rules. The cases can be tried only after the committal proceedings. 29. The learned Counsel for the petitioner has submitted that this Court has taken a different view earlier in two Criminal Petitions with regard to the jurisdiction of the Special Court and also the Magistrate Court. I have carefully gone through the order passed by me in CRL.P. No.100525/2017 dated 22.3.2017 pertaining to Dharwad Bench, wherein at paragraph 4, this court has come to the conclusion that – “The Judicial Magistrates of First Class have no right to entertain any complaint where the allegations fall under the MMDR Act or Rules there under and with allied offences. …… And also observed that Judicial Magistrate of I Class could not have entertained the complaint directly by taking cognizance and issuing summons to the accused.” In another case i.e., in Crl.RP No.100191/2016 disposed of on 14.2.2017 at Dharwad Bench, I have taken the view that the Judicial Magistrate of I Class, has no jurisdiction to entertain the bail petition and grant regular bail. 30. The above said two opinions are rendered by by me without referring to or considering the decision of the Hon'ble Apex Court reported in AIR 2015 SC 75 between NCT Delhi and Sanjay, which is extensively relied upon in this case. The above said observation made by this court in the two cases is not correct in view of contrary view taken by the Hon'ble Apex Court in the decision cited. Perhaps, due to lack of any assistance and in non referring of the said decision to me at the time of rendering the said judgment, the said orders were passed. 31. In this particular case, as I have noted above, the Hon'ble Apex Court has considered in detail the powers of the Judicial Magistrates and also the Special Courts. 32. It is to be noted here that our judiciary is constantly trying to make the concept of justice real in accordance with the legal pronouncements of the Hon'ble Apex Court. The judicial system even though it is said to be perfectly structured, may not yet be so perfect in interpreting the law. Therefore, we have to be always innovative and reformative in our endeavor. If there is any mistake committed, we should fairly correct it to bring it in consonance with the correct interpretation of law. It is relevant to refer to the decision of the Apex Court in the case of Hotel Balaji Vs State of U.P (1993 Supl 4 SCC 537) wherein the following observation of Justice Bhagawathi in an early case is extracted at page 551: “To perpetuate an error is not heroism. To rectify it is the compulsion of judicial conscience” Therefore, introspection and improvement are the two eyes of our system to see what corrective measures are absolutely necessary for the purpose of almost making the judgment/order nearly to ZERO DEFECTIVE. To rectify it is the compulsion of judicial conscience” Therefore, introspection and improvement are the two eyes of our system to see what corrective measures are absolutely necessary for the purpose of almost making the judgment/order nearly to ZERO DEFECTIVE. There may be circumstances where the court may commit mistake, but if the said mistake is brought to the notice of the court subsequently and if the court has got an opportunity to correct the same, the court should not lag behind in correcting its mistake so as to proceed in the right path. Therefore, it should be borne in mind by the courts that – “A saner thought will always throw more light even on the same subject”. Bearing in mind the above said aspects, I am of the opinion that the above said orders passed by me is not in consonance with the law laid down by the Hon'ble Apex Court. Every day, law is developing by virtue of saner interpretation of the laws by the higher courts and the Hon'ble Apex Court. The Court should always lean in favour of correcting its mistake when need arises in accordance with the development and interpretation of laws by the Hon'ble Apex Court, more so said interpretation is particularly and purely based on legal aspects. Therefore, as the above observations made by me earlier in the two decisions are not correct and in consonance with the Hon'ble Apex Court, I have ventured upon to discuss this matter in detail so as to correct the mistakes and guidelines are properly laid down in this case. 33. In order to avoid this anomaly and unnecessary cumbersome procedure of committal of the case by the Magistrate, the appropriate Governments have to take necessary steps to amend the MMRD Act and Rules, to confer original jurisdiction on the special courts constituted under the act. 34. Once the Court comes to the conclusion that the accused has committed some offence under any law for the time being in force, he should not be allowed to go Scot free without following the procedure contemplated under law. 34. Once the Court comes to the conclusion that the accused has committed some offence under any law for the time being in force, he should not be allowed to go Scot free without following the procedure contemplated under law. If for the offences under the MMDR Act and KMMC Rules and the offences under the IPC, the Special Court ignorantly or erroneously takes cognizance, either directly or on the private complaint directly or entertains the proceedings, and later if it comes to know that the said court had no jurisdiction to entertain such complaint or the report by the police, in the absence of private complaint filed by the competent authority before the Jurisdictional Magistrate as per Section 22 of the Act and the committal of the case there on, it does not mean to say that the proceedings are to be closed there itself. In such situation the Special Court has to transfer the said report of the police to the Jurisdictional Magistrate for the purpose of passing appropriate orders with regard to the cognizance of the offence under IPC and any other penal provision other than the offences under MMDR Act or Rules. In such an eventuality, the Magistrate has to once again apply his mind to the entire charge sheet papers filed by the police and if any case is made out u/ss.378 and 379 of IPC, or any other penal law for the time being in force, where it empowers the Magistrate to take cognizance, then he can take cognizance and issue process against the accused persons. 35. In this context it is also worth to mention here the provision under section 228 of Cr.p.c. which reads as under: 228. 35. In this context it is also worth to mention here the provision under section 228 of Cr.p.c. which reads as under: 228. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. This provision also empowers the Sessions judge to transfer the case to Chief judicial Magistrate or to any other magistrate to try the offences, if the Sessions court has no jurisdiction to try those offences and the offences are exclusively triable by the Magistrate. 36. Now let me advert to the facts of this case. In this particular case, as penal provisions under the MMDR Act and Rules have been invoked, by the Police the Special court, as I have noted above, has no jurisdiction to take up the matter unless a private complaint is filed by the competent authority before the JMFC, and there is committal of the case. The Special Court has no jurisdiction to receive the report u/s.173 of Cr.PC neither from the Police nor a private complaint by the authorized officer, directly without committal. If the court has no jurisdiction and if the court is of the opinion that some other court has got jurisdiction, then the court has to transfer the case and transmit the records to the court which is having jurisdiction to pass an appropriate order in accordance with law. If the court has no jurisdiction and if the court is of the opinion that some other court has got jurisdiction, then the court has to transfer the case and transmit the records to the court which is having jurisdiction to pass an appropriate order in accordance with law. Hence, in this particular case, the cognizance taken by the Special Court under MMDR Act and KMMC Rules is bad in law and the same is liable to be set aside. However, a direction has to be issued to the Special court to transmit the records to the jurisdictional Magistrate for the purpose of examining whether the Magistrate can take cognizance of any of the offences and to allow the jurisdictional Magistrate to pass appropriate order. 37. Before concluding even at the cost of repetition, I, feel it just and necessary to summarize the guidelines to be born in mind by the police, Magistrates and the special Courts, and the same are briefly enumerated hereunder. GUIDELINES: (1) The Special Court constituted under the MMDR Act, has no jurisdiction to directly take cognizance of the offences under the MMDR Act and KMMC Rules, even along with any other penal offences unless the case is committed by the jurisdictional Magistrate. It is made clear that the Special Court has no jurisdiction to receive a final report from the Police u/s.173 of Cr.PC or to receive any private complaint under the MMRD Act, directly from the authorized officer and take cognizance of the offences either under the MMRD Act or any other penal laws. If any such complaint is erroneously received and pending, the Special court has to follow the procedure as contemplated under section 201 of Cr.PC. and return the complaint for presentation to the proper Court with an endorsement to that effect. Like wise if any police report is received the same has to be transferred to the jurisdictional Magistrate invoking the provisions under section 228 (1) (a) of Cr.PC for appropriate action. (2) The Police cannot file a final report under section 173 of Cr.PC for the offences under the MMRD Act & KMMC Rules either to the jurisdictional JMFC Court or to the Special Court. However, they can file the report for the offences under the IPC or any other penal law for the time being in force before the jurisdictional Magistrate. However, they can file the report for the offences under the IPC or any other penal law for the time being in force before the jurisdictional Magistrate. (3) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act & KMMC Rules on the basis of any Police report u/s.173 of Cr.PC. However, if any penal provisions under the IPC or any other penal laws are available in the final report of the police, if there is no other legal bar; the Magistrate can take cognizance of such offences under the IPC or other penal laws for which he is empowered, except the offences under MMDR Act & KMMC Rules. (4) A private complaint is only contemplated under the MMDR Act & KMMC Rules and thus it has to be filed u/s.22 of the Act by the competent authorized officer under the MMRD Act & KMMC Rules. Even if other offences under any other penal laws, are also included along with offences under MMDR Act and Rules, the jurisdictional Magistrate, has to take cognizance of the offences under MMDR Act & KMMC Rules only on the basis of the private complaint even though other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.RC, the Magistrate has to commit the entire case to the Special Court for trial. (5) The Special Court gets jurisdiction to try the offences under the MMRD Act & KMMC Rules there under including any other offences under any other penal laws for the time being in force only after the case is committed to it for trial by the jurisdictional Magistrate. (6) If the authorized officer under section 22 of the MMDR Act, has filed a private complaint, and the Magistrate has taken cognizance of the same, and during the course of inquiry or trial of private complaint, it is made to appear to the Magistrate that an investigation by the police in the same case is pending in relation to the offence which is the subject matter of inquiry or trial held by him then the Magistrate has to stay the proceedings of such inquiry or trial and call for the report on the matter from the police, and there after commit both the cases to the special court, for trial. (7) If the police have already filed the report under section 173 of Cr.P.C. for the offences under the MMRD Act and also under Other penal laws, like I.P.C. Motor vehicles Act or under any other penal law for the time being in force where the Magistrate has taken cognizance of the offences under other Penal laws, during inquiry or trial of such case, if any Private complaint is filed as per section 22 of the said Act, by the authorized officer for the offences under MMDR act and Rules arising out of same incident, the Magistrate shall stay all further proceedings, and commit both the cases to the special court for trial of both the cases, as per section 323 of Criminal Procedure Code, after following the procedure as contemplated under section 202 (2) of Cr.PC. (8) The Special Court on receipt of the cases as noted at guidelines 6 and 7, relating to the same incident, as the case may be has to try both the cases together, in accordance with law, adopting the procedure of a sessions trial, in view of the powers vested as per section 30 C of MMDR Act. (9) The provisions and powers of the Magistrate with regard to the bail and also with regard to the interim custody of the seized properties can be exercised by the Magistrate during the inquiry till the committal of the case to the Special Court. (10) After committal of the case, the Special Court being the trial Court shall have all the powers of the Sessions Court regarding bail and disposal of the properties involved in the case, as provided under the provisions of the Code of Criminal Procedure. Therefore, in view of the above said discussion, I proceed to pass the following order: 38. The petition is allowed. The proceedings pending before the Special Court in Principal District and Sessions Judge, Tumakuru, in Special CC No.64/2017 and all further proceedings thereon which are registered for the offence punishable u/s.379 of IPC and under section 21(1) of MMDR Act, and under sections 3, 181, 192(A) and 196of the IMV Act, are hereby quashed. The petition is allowed. The proceedings pending before the Special Court in Principal District and Sessions Judge, Tumakuru, in Special CC No.64/2017 and all further proceedings thereon which are registered for the offence punishable u/s.379 of IPC and under section 21(1) of MMDR Act, and under sections 3, 181, 192(A) and 196of the IMV Act, are hereby quashed. However, the Principal District and Sessions Judge is hereby directed to transfer and transmit the entire records along with the report filed by the police u/s.173 of Cr.PC to the learned JMFC who has jurisdiction to take cognizance of the offence u/s.378 and 379 of IPC and Section 3, 181, 192, 196 of Indian Motor Vehicles Act. In such an eventuality, the jurisdictional Magistrate has to apply his judicious mind to the facts and circumstance of the case and the entire charge sheet papers and thereafter pass appropriate orders with regard to taking of cognizance and issuance of process against the accused in accordance with law. Send a copy of this order to: (1) The Karnataka Judicial Academy for upraising the Magistrate and Special Judges who are in the helm of affairs. (2) Registrar General is hereby directed to Circulate a copy to all the Courts of JMFC and Special Judges designated under the MMDR Act for guidance. (3) Send a copy to the Secretary, Mines Department and Revenue Department to enlighten the Special Officers appointed under Section 22 of the Act and to take appropriate action against the erring officers in not following the Act and Rules. (4) Send a copy to the Karnataka Law Commission and Central Law Commission to examine and recommend the necessity of amending the MMDR Act suitably to provide original jurisdiction to Special Court to take cognizance directly and to deal with the matter to avoid cumbersome procedure of committal by the Magistrate. (5) Send a copy of this order to the Director General of Police to circulate and enlighten the Police Officers to follow the strict procedure as per the guidelines noted in the body of the order, and to take appropriate action against.