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2017 DIGILAW 838 (GUJ)

Manasibhai Ladhubhai Khavad v. State of Gujarat

2017-04-19

ALPESH Y.KOGJE

body2017
JUDGMENT : Alpesh Y. Kogje, J. 1. This petition under Articles 14, 19, 21 and 226 of the Constitution of India and other relevant provisions of the Code of Criminal Procedure and Mines and Minerals (Regulations and Development) Act, 1957 is filed with the prayer to quash and set aside the proceedings of F.I.R being C.R. No. II-3040 of 2008 registered with Sayla Police Station. 2. The aforementioned F.I.R is filed on 30.03.2008 by the clerk working under the Office of the Meteorological Department at Surendranagar wherein it is alleged that the petitioner, who was having lease, licence for excavation of mines from the area under lease has trespassed in excavation activities excavating minerals even from the area which are not forming part of the lease granted to the petitioner, and therefore, committed offence under sections 4(1), 21(1), and 21(5) of Mines and Minerals (Regulations and Development) Act, 1957 ('MMRD Act' for brevity), sections 4(1) and 42 of the Gujarat Minor Minerals Rules, 1966 and also committed offence under section 379 of the IPC and thereby illegally excavated 64287 MT of mineral valued at Rs. 57,85,830/-. 3. Heard learned advocate Mr. P.S. Champaneri for the petitioner and Mr. K.L. Pandya, learned Additional Public Prosecutor for the respondent-State. 4. It is contended by the learned advocate for the petitioner that the offence has not at all taken place and the petitioner has carried out excavation activities within the permissible limit and area. 5. It is contended that the informant is not a person authorized or empowered to file a complaint for the offences which are defined under the MMRD Act and any such act by a person other than the competent officer would be in contravention with section 15 of the Gujarat Minor Mineral Rules. Hence also he has sought quashing of the F.I.R. 6. It is submitted that section 22 of the MMRD Act bars taking of cognizance of any offence unless the complainant is the person authorised in this behalf either by the Central Government or by the State Government and as in the instant case the informant not being an authorised person, no cognisance can be taken in such offence. 7. This Court by order dated 23.04.2008 issued notice and by way of ad interim relief further proceeding of the impugned F.I.R was stayed. 7. This Court by order dated 23.04.2008 issued notice and by way of ad interim relief further proceeding of the impugned F.I.R was stayed. Thereafter, this Court on 08.10.2013 has recorded that the Apex Court is seized with the identical issues as the matter is carried to the Apex Court from the decision of this Court. 8. Now it appears that the Apex Court has decided the issue by its judgment dated 04.09.2014 rendered in Criminal Appeal No. 499 of 2011 along with allied matters on the same issue. The judgment is now reported in (2014) 9 SCC 772 . 9. The Apex Court while passing the judgment recorded the facts arising from the criminal complaints filed in the State of Gujarat which were the subject matter of the decision of the High Court of Gujarat which was carried to the Apex Court, as under: "6. Criminal Appeal No. 2107 of 2013 This appeal also arose out of the order passed by the High Court of Gujarat on the application challenging the legality and validity of criminal complaint filed before Bhuj Taluka Police Station for the alleged illegal mining and transporting a dumper loaded with black trap stone. A complaint was made with the police for the commission of offence under Section 379 read with Section 114 of the IPC and under Section 21 of the MMDR Act. 7. Criminal Appeal No. 2106 of 2013 This appeal also arose out of a complaint filed before Sayla Police Station by the In charge Mines Supervisor, alleging offence punishable under Sections 4(1) and 21(1) of the MMDR Act. No charge sheet has been filed in this complaint so far." 10. The Apex Court also recorded the question which was taken into consideration by this Court while disposing of the petitions, which is as under: "9. On the other hand the Gujarat High Court formulated the following question for consideration:- Whether Section 22 of the Act would debar even lodging an FIR before the police with respect to the offences punishable under the said Act and Rules made thereunder? In Case such FIR's are not debarred and the police are permitted to investigate, can the concerned Magistrate take cognizance of the offences on a police report? What would be the effect on the offences punishable under the Indian Penal Code in view of the provisions contained in the Act?" 11. In Case such FIR's are not debarred and the police are permitted to investigate, can the concerned Magistrate take cognizance of the offences on a police report? What would be the effect on the offences punishable under the Indian Penal Code in view of the provisions contained in the Act?" 11. After taking into consideration all the provisions and decision in the subject, the Apex Court has laid down guidelines in paras 66(69) to 72(73), as under: "66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. 67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels. 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. 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 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 a 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. In other words, in a 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-à-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." 12. Therefore, the decision of the Apex Court, which squarely covers the issue has also laid down guidelines for the Magistrate to proceed in connection with the offences which are registered invoking sections both of IPC and MMRD Act under one offence. The illegal mining activity in the present case as is reflected in the record and the F.I.R. indicates that the mining activity has traveled beyond the limits and therefore, would fall in the definition of theft of mines and minerals from the area not covered under the lease for which prosecution needs to be considered as maintainable. 13. In view of the aforesaid, no case for quashing of F.I.R. is made out and therefore, the present petition deserves to be disposed of with an observation that it would be open for the investigating agency and the Magistrate to proceed further as per the guidelines of the Apex Court as reproduced in the preceding paras. 14. With the aforementioned observations the petition is disposed of. Rule is discharged. Interim relief is vacated. Disposed off.