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2019 DIGILAW 1824 (KAR)

Mallappa v. State Of Karnataka

2019-08-06

K.S.MUDAGAL

body2019
JUDGMENT : K.S.Mudagal, J. Whether respondent police could register Crime No.111/2019 for the offences punishable under Section 379 IPC and under Sections 21(3), 21(4) and 22 of Mines and Minerals (Development and Regulation) Act 1957, on the basis of complaint of Sri Basavaraj Village Accountant of Nagral Village and proceed to investigate into such case is the question involved in this case. 2. It was alleged that on 14.05.2019 at 03.00 p.m. on the basis of information of illegal extraction and transportation of sand, Basavraj - complainant, Suresh R. Ankalgi - Tahasildar of Shorapur and his team with the assistance of Shorapur Police, intercepted Tipper No.KA-28-C-5145 and KA-33-A-7522, near Nagral cross of Shorapur Taluka, Allabax and Rayappa were the crew of the vehicles. On checking they found transporting about 26 Cubic meter sand worth Rs.20,800/- in those Tippers. It was alleged that on interrogation of those drivers revealed that they were transporting the sand from Chowdeshwarhal Kirshna River basin to Hunasagi village. Further, they revealed that they were transporting the sand at the instructions of the owners of the vehicles. The said sand and Tippers were seized. 3. On the basis of such complaint, the SHO of Shorapur Police Station has registered the FIR as aforesaid and now the investigation is going on in the said case. 4. Petitioners are the registered owners of Tippers - Lorries seized, in the said case. They are also arrayed as accused in the case. Petitioners challenge the said FIR on the ground that as per Section 22 of the MMDR Act read with Section 2 (d) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') and Rule 2(1)(a-1-a) of Karnataka Minor Mineral Concession Rules, 1994 (for short 'the Rules'), only an officer authorized by the Central or State Government has to file the complaint before the Magistrate and not before the Station House officer. 5. Sri Rajesh Doddamani, learned counsel for the petitioner relying on Section 22 of the MMDR Act and the judgment of the Hon'ble Supreme Court in State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 submits that First Information Report registered by the respondent police is unsustainable. 6. 5. Sri Rajesh Doddamani, learned counsel for the petitioner relying on Section 22 of the MMDR Act and the judgment of the Hon'ble Supreme Court in State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 submits that First Information Report registered by the respondent police is unsustainable. 6. Sri P.S. Patil, learned High Court Government Pleader submits that under Section 22 of the MMDR Act only taking cognizance of the offence punishable under MMDR Act is barred and bar does not apply to the offences under the Indian Penal Code. Therefore, the entire FIR does not warrant quashing. 7. Section 22 of the MMDR Act reads as under:- "22. Cognizance of offences. No court shall take cognizance of any offence punishable under this Act of any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government". 8. Complaint is defined in Section 2 (d) of the 'Cr.P.C.' as follows: "2. Definitions. In this Code, unless the context otherwise requires. (d) "Complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report. 9. Rule 2(1)(a-1-a) of the KMMC Rules defines the authorized officer as follows: "2(1) (a-1-a) "Authorized Officer" means an officer not below the rank of Group B authorized by the State Government or the Commissioner or the Director of Mines and Geology or Deputy Commissioner of the District to act for the specific purpose under these Rules." 10. Under Section 2(d) of Cr.P.C., complaint excludes the report of the police officer. Complaint does not state that the complainant is an authorized officer. Even the officer authorized under Rule 2(1) (a-1-a) of the Rules has to file a complaint before the Magistrate. 11. Hon'ble Supreme Court in paragraphs 72 and 73 of the judgment in State (NCT of Delhi)'s case referred to supra, in this regard has held as follows: "72. 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. 11. Hon'ble Supreme Court in paragraphs 72 and 73 of the judgment in State (NCT of Delhi)'s case referred to supra, in this regard has held as follows: "72. 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, gravel 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. 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 persons. In other words, in a case where there is a theft of sand and gravel 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. 73. 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC. Hence, for the commission of offence under Section 378 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 authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently, the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. 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." (Emphasis supplied) 12. Thus, it is clear that the police are competent to register the case for the offence punishable under Section 379 IPC. The FIR needs to be quashed only with regard to the offences punishable under Sections 21(3), 21(4) and 22 of MMDR Act. 13. Therefore, the petition is partly allowed. The FIR in Crime No.111/2019 of Shorapur Police Station insofar as it relates to offences punishable under Sections 21(3), 21(4) and 22 of MMDR Act is hereby quashed. Liberty is reserved to the Government to proceed in accordance with Section 22 of the MMDR Act and in the light of the observations made above in respect of the offences for which FIR is quashed. In view of the disposal of the main petition, the pending IAs stood disposed of.