Research › Search › Judgment

Karnataka High Court · body

2018 DIGILAW 510 (KAR)

Siri @ K. C. Sree Kumar v. State of Karnataka

2018-04-11

ARAVINDA KUMAR

body2018
ORDER : Petitioner has been arrayed as accused No.1 in Crime No.43/2017 registered by Maddur Town Police Station for the offences punishable under Sections 188 and 379 of IPC and Rules 3 and 31R of the Karnataka Minor Mineral Concession Rules, 1994 (for short ‘Rules’) and under Sections 4, 4(4a), 21, 22 and 21(a) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘Act’) alleging that, at about 8.00 p.m., complainant, who was on rounds, had received a credible information that on the river bed of Shimsha river near Anjaneya temple of Maddur Town, a Tipper Lorry was transporting illegally extracted sand without permit or license. Hence, they proceeded to the spot and saw the petitioner along with two other persons loading sand and on noticing the Police, petitioner said to have ran away from the spot and the driver and cleaner/accused Nos.2 and 3 were apprehended along with sand. On investigation being taken up and during the course of investigation, on the strength of the statement made by accused Nos.2 and 3, petitioner and accused No.4/owner of the vehicle were also apprehended. For quashing of the said proceedings, petitioner is before this Court. 2. I have heard the arguments of Sriyuths Sanath Kumara.K.M., learned Counsel appearing for the petitioner and S.Rachaiah, learned High Court Government Pleader appearing for the State. Perused the records. 3. It is the contention of Mr.Sanath Kumar that petitioner has been falsely implicated alleging that he is the owner of the vehicle viz., Tipper Lorry bearing registration No.KA11/A6769, though the records including the ‘B’ Register extract issued by the jurisdictional Regional Transport Department under Rule 48 of the Karnataka Motor Vehicle Rules, 1989 would disclose that registered owner of the vehicle was one Somashekar/accused No.4. He would also submit that said Somashekar had also filed an application for release of the said vehicle and the jurisdictional Magistrate after being satisfied that accused No.4 was the owner of the vehicle had released the said vehicle in favour of Somashekar and as such he submits that continuation of the proceedings against the petitioner is liable to be quashed. 4. 4. Per contra, learned Government Pleader appearing for State submits that, not only based on the statement of accused Nos.2 and 3, petitioner came to be apprehended, but it was also noticed by the raiding party that petitioner (accused No.1) was present at the spot when theft of minor mineral took place. He would also bring to the notice of the Court, statement made by accused No.4/Somashekar whereunder he has stated that though he is the owner of the Tipper lorry bearing No.KA11/A6769, same had been given to the petitioner (A1) on rental basis and as such, the petitioner has been arraigned as accused No.1 and there is no infirmity in the proceeding initiated against the petitioner. Hence, he prays for rejection of the petition. 5. Having heard the learned Advocates appearing for the parties and on perusal of the records, it is noticed that respondent/authority has not only initiated proceedings against the petitioner for the offences punishable under the Indian Penal Code, but also for the offences punishable under the M.M.D.R. Act and the Rules made thereunder. 6. The Hon’ble Apex Court in the case of State of NCT of Delhi Vs Sanjay and Others reported in AIR 2015 SC 75 has held where the offences are punishable under the M.M.R.D. Act and the Rules made thereunder, no Court can take cognizance of sue offence unless an authorized officer files a complaint under Section 22 of the Act and in event of cognizance having been taken on the basis of a Police report sue proceedings cannot be continued as it would be an illegality. In these circumstances, the Hon’ble Apex Court has held that such proceedings are liable to be quashed, inasmuch as the accused cannot be made to face the ordeal of trial since the jurisdictional Magistrate would have no power to take cognizance and convict the accused on the basis of a Police report. 7. Following the judgment of the Hon’ble Apex Court, Coordinate Benches of this Court has consistently held that proceedings initiated on the basis of a Police report for the offences punishable under the M.M.D.R.Act and the Rules made thereunder cannot be sustained and as such, has quashed the proceedings in W.P.No.54390/2017, Criminal Petition No.9358/2017 and Criminal Petition No.307/2018 disposed of on 1.2.2018, 4.12.2017 and 19.3.2018 respectively. As such, continuation of the proceedings against the petitioner in the instant case for the offences punishable under the MMDR Act and the Rules made thereunder cannot be allowed to continue as it would be an abuse of process of law. However, liberty is being reserved to the Department of Mines and Geology, Government of Karnataka, to initiate appropriate proceedings against the petitioner in terms of Section 22 of the M.M.D.R.Act. 8. Now turning my attention to the contention raised by the learned Counsel for the petitioner that petitioner has been falsely implicated, when seen in the background of the case papers, it would not detain this Court for long to brush aside said contention for three reasons. Firstly, Jurisdictional Police, who conducted the raid and apprehended accused Nos.2 and 3, at the spot have categorically stated that petitioner had also indulged in theft of minerals and on seeing them he had run away from spot; secondly, voluntary statement made by accused Nos.2 and 3 would disclose that petitioner was also present at the spot when raid took place; and, thirdly, the owner of the Tipper Lorry bearing No.KA11/A6769 in whose favour the vehicle has been released has also stated that though he owned the lorry in question at the time incident took place, he had rented out said vehicle to the petitioner. As to whether it was rented, if so, under what circumstances are all issues, which will have to be thrashed out after trial and at this stage, in exercise of extraordinary jurisdiction, this Court would not be in a position to quash the proceedings insofar as the offence under the Indian Penal Code, which has been alleged against the petitioner. 9. Hence, for the reasons aforestated, proceed to pass the following order: (1) Criminal Petition is hereby allowed in part. (2) Proceedings pending against petitioner in Crime No.43/2017 insofar as it relates offences punishable under Rules 3 and 31R of the Karnataka Minor Mineral Concession Rules, 1994 and Sections 4, 4(1a), 21, 22 and 21(a) of the Mines and Minerals (Development and Regulation) Act, 1957, are hereby quashed. (2) Proceedings pending against petitioner in Crime No.43/2017 insofar as it relates offences punishable under Rules 3 and 31R of the Karnataka Minor Mineral Concession Rules, 1994 and Sections 4, 4(1a), 21, 22 and 21(a) of the Mines and Minerals (Development and Regulation) Act, 1957, are hereby quashed. The Department of Mines and Geology, Government of Karnataka, would be at liberty to initiate proceedings under the Act in the manner known to law; (3) However, said proceedings pending against the petitioner for the offences punishable under Sections 188 and 379 of IPC shall be proceeded in accordance with law.