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2019 DIGILAW 426 (KAR)

Appayya v. State of Karnataka

2019-02-15

H.P.SANDESH

body2019
JUDGMENT : H.P. SANDESH, J. 1. Though this matter is listed for admission, with the consent of the petitioner's counsel and the learned HCGP, it is taken up for final disposal. 2. Heard the petitioner's counsel and also the learned HCGP for the respondent-State. 3. The prayer sought in this petition by invoking Section 482 of Cr.P.C. is to quash the entire proceedings in Crime No.218/2016 of Khanapur P.S. for the offences punishable under Sections 4(1), 4(1A), 21 of the MMDR Act, Rules 3, 32, 34 of KMMC Rules and under Section 379 of IPC in CC No.1077/2017 pending on the file of Prl. Civil Judge and JMFC Court, Khanapur. 4. It is the contention of the petitioner's counsel that the police have filed a complaint for the of fence punishable under the MMDR Act and KMMC Rules and registration of the case against the petitioner is illegal and contrary to law, facts and evidence on record and hence, the same is liable to be quashed. It is further contended that the petitioner is innocent and he has not committed any of fences alleged against him. 5. The petitioner's counsel reiterating the grounds urged in the petition would contend that Section 22 of the MMDR Act makes it clear that the case can be registered only on the basis of private complaint and not on police report in view of the judgment of the Hon'ble Apex Court in the case of State (NCT of Delhi) Vs Sanjay and Others, reported in, (2014) 9 SCC 772 . He also contended that there is no prima facie materials produced against the petitioner and viewed from any angle, registering the present complaint is even otherwise illegal, erroneous and unsustainable in law and as such the same are liable to be quashed and continuation of the proceedings would amount to gross abuse of process of the Court and quashing the same is necessary to secure the ends of justice. Hence, prayed to quash the proceedings alleged against him. 6. Hence, prayed to quash the proceedings alleged against him. 6. Per contra, the HCGP appearing for the respondent State contends that PSI has registered a case on credible information and further contends that, in order to invoke the of fence under the MMDR Act, an authorized officer has to file a complaint before the Magistrate and under Section 22 of MMDR Act, the Court can take cognizance in respect of the of fences under the provisions of MMDR Act. However, the complaint registered for the of fences of IPC cannot be quashed in view of the judgment of the Hon'ble Apex Court delivered in State (NCT of Delhi) vs. Sanjay (supra) . Hence, prayed this Court only to consider the of fence with regard to MMDR Act and Rules and not for the of fences under IPC. 7. Having heard the petitioner's counsel and HCGP for respondent State, this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. to quash the proceedings against the petitioner in the case on hand. 8. The main contention of the petitioner before this Court is that the police officer has no right to register the case against the petitioner and only based on the complaint, law has to be set in motion. This Court in Crl.P. No.101274/2018 and connected matters has categorically held that the offences under the MMDR Act is cognizable under Section 21`6) of the MMDR Act, hence, under Section 154 of Cr.P.C., the Station House Officer has got power to register the case as held by the Apex Court in the case of Lalita Kumari vs. Government of UP and others reported in, (2014) AIR SC 187. 9. On perusal of the material on record, the case is registered based on the complaint and the Court has also taken cognizance based on the complaint filed by authorized person and it is made clear in the judgment of State (NCT of Delhi) Vs. Sanjay, wherein the Hon'ble Apex Court has held that for the IPC of fences, case can be proceeded as per initiation of the case by the police officer and if the of fence is under the special enactment, cognizance can be taken only on the complaint. Sanjay, wherein the Hon'ble Apex Court has held that for the IPC of fences, case can be proceeded as per initiation of the case by the police officer and if the of fence is under the special enactment, cognizance can be taken only on the complaint. On perusal of the records, cognizance is taken based on the complaint of police and not on the complaint as contemplated under Section 22 of the MMDR Act and hence, the cognizance taken for the of fence under Section 379 of IPC has to be continued and cognizance taken for the offence under the MMDR Act is liable to be quashed. 10. In view of the discussions made above, I proceed to pass the following order: (i) The petition allowed in part. (ii) The cognizance taken for the of fence under the MMDR Act is quashed and the cognizance taken for the of fence under Section 379 of IPC is continued. (iii) The authorized officer is having liberty to file complaint for the of fence under the MMDR Act.