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Karnataka High Court · body

2019 DIGILAW 2241 (KAR)

Kalappa v. State of Karnataka

2019-12-02

P.G.M.PATIL

body2019
ORDER : 1. This is a petition filed under Section 482 of Cr.P.C. seeking to quash the proceedings in C.C.No.335/2018 pending on the file of the Civil Judge and JMFC, Navalgund against the petitioners for the offences punishable under Section 4(1) read with Section 21 of Mines and Minerals Regulation of Development Act, 1957 (for short the 'MMDR Act') and Rules 3, 32 and 44 of Karnataka Minor Mineral consistent Rule, 1994 (for short 'KMMC Rules'). 2. The brief facts of the case are as follows: One Pradeep Basavantakar, Village Accountant of Navalgund filed a complaint before the respondent police on 09.12.2017. He has alleged in the complaint that on 09.12.2017 at about 12.00 p.m. when he was on duty he received credible information about transportation of soil illegally in a tipper belonging to RNS Company from the land of one Agasar. On receiving such information the complainant informed the same to the PSI and Tahasildar of Navalgund and they along with other staff secured panchas and headed towards spot and when they were at the spot the tipper lorries were loaded with stone powder for the purpose of transportation, and on seeing them the accused persons ran away. Thereafter they enquired the watchmen and seized the tipper lorries along with load of stone powder. On the basis of the said complaint the respondent police registered the case in Crime No. 146/20 17 of Navalgund Police Station for the offences punishable under Section 4(1) read with Section 21 of MMDR Act and Rules 3, 32 and 44 of KMMC Rules. 3. The petitioners have stated that they have been falsely implicated in the case at the instance of the police authority. The police authorities have no jurisdiction to register the complaint and carry out the investigation and file the final report and therefore the charge-sheet filed by the police is liable to be quashed. 4. Heard the learned counsel for the petitioners and the learned HCGP. 5. It is seen from the record that the respondent police registered Crime no. 146/2017on the basis of the complaint filed by the Village Accountant, who is not competent to file a complaint under Section 22 of the MMDR Act. 4. Heard the learned counsel for the petitioners and the learned HCGP. 5. It is seen from the record that the respondent police registered Crime no. 146/2017on the basis of the complaint filed by the Village Accountant, who is not competent to file a complaint under Section 22 of the MMDR Act. Moreover, the said complaint was filed before the police and that the police have no jurisdiction to register the complaint for the offences under the provisions of the MMDR Act and KMMC Rules and also to undertake the investigation and file the final report in the matter. On this aspect, in the case of State (NCT of Delhi) vs. Sanjay, (2014) 9 SCC 772 the Apex Court in paragraph Nos. 68 and 72 has held as follows: "68. In the case of State of U.P. vs. Bahu Ram Upadhya, AIR 1961 SC 751 , while interpreting a particular statute as mandatory or directory this Court observed:- "29. ...When a statute uses the word 'shall', 'prima facie', it is mandatory, but the court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the legislature the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow there from, and, above all, whether the object of the legislation will be defeated or furthered." 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, 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. 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." 6. Therefore, the police officer has no jurisdiction to register the case for the offences punishable under the provisions of the MMDR Act and to undertake the investigation and submit the final report under 173 of Cr.P.C. The police officer is empowered to investigate the matter in respect of any other offences alleged in the complaint falling under the provisions IPC such as Section 379 of IPC. It is further held that Section 22 of the MMDR Act provides for filing a complaint by the competent person before the Court and not before the police officer. 7. Under these circumstances, it is crystal clear that filing of the complaint before the respondent police and undertaking the investigation based on such complaint and filing the final report under Section 173 of Cr.P.C. for the alleged offences under the provisions of the MMDR Act and KMMC Rules is beyond the jurisdiction of the respondent police and as such the proceedings initiated against the petitioners on the basis of such a report are liable to be quashed. Admittedly, the competent person has not filed any complaint under Section 22 of the MMDR Act before the jurisdictional Magistrate and no case was registered against the petitioners in respect of the alleged offences under the provisions of the MMDR Act. Therefore, the proceedings initiated against the petitioners are liable to be quashed. 8. Accordingly this Court proceed to pass the following: ORDER: The petition is allowed. Therefore, the proceedings initiated against the petitioners are liable to be quashed. 8. Accordingly this Court proceed to pass the following: ORDER: The petition is allowed. The entire proceedings pending in C.C.No.335/20 18 (Crime No. 146/2017) on the file of the Civil Judge and JMFC, Navalgund for the offences punishable under Section 4(1) read with Section 21 of the MMDR Act and Rules 3, 32 and 44 of the KMMC Rules insofar as the petitioners are concerned are hereby quashed. Further the competent authority under the MMDR Act is at liberty to proceed against the petitioners in accordance with law under the provisions of the said Act.