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2019 DIGILAW 468 (KAR)

Shivkumar v. State of Karnataka

2019-02-20

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. PATIL, J. 1. This writ petition is filed under Article 226 and 227 of Constitution of India R/w Section 482 of Code of Criminal Procedure to quash the order dated 28.01.2019 passed in Spl. Case (MMDR) No.928/2018 on the file of Principal District and Sessions Judge, Bidar and further to modify the order dated 13.12.2018 passed in said case by relaxing condition to furnish bank guarantee for Rs.6,00,000/-. 2. The facts leading to filing of this writ petition are as follows: The petitioner is the owner and driver of the lorry bearing registration No.KA-38-5040, and carrying business of transportation. On 24.09.2018 respondent No.2 filed a private compliant under Section 200 of Cr.PC before the Principal District and Sessions Judge Bidar, against the petitioner and others for the alleged offences punishable under Section 3(1), 42, 43, 44 and 31(R) 13 of KMMC Rules and Section 4(1), 4(1)(A) of Mines and Minerals (Development and Regulation) Act. It is alleged in the complaint that on 03.06.2018 the Tahsildar Bidar informed her that the petitioner is illegally conducting mining operations in Sy.No.205/5 of Sikindrapur village and exporting literite stones. Therefore, respondent No.2 along with Tahasildar and other officers visited the place and found that the petitioner was doing mining operations in the said land in violation of the provisions of the KMMC Rules and MMDR Act. Therefore, she filed the said complaint to take action against the petitioner. On the basis of the said complaint, the learned Principal District and Sessions Judge, Bidar took cognizance of the offence under the provisions of MMDR Act and KMMC Rules and Section 379 of IPC and ordered to registered the case and issue summons to the petitioner. 3. The petitioner had filed an application under Section 457 of Cr.,PC for the release of Ashok Leyland Lorry bearing registration No.KA-38-5040 which was seized in the case, stating the said vehicle is required for daily business which is the only source of income. The learned Principal District and Sessions Judge, Bidar passed an order for the release of the said vehicle to the interim custody of the petitioner on 13.12.218 subject to the conditions that the petitioner shall executive indemnity bond for Rs.3,00,000/- with one surety to the like-sum and also bank guarantee to the extent of Rs.6,00,000/- along with other conditions. The learned Principal District and Sessions Judge, Bidar passed an order for the release of the said vehicle to the interim custody of the petitioner on 13.12.218 subject to the conditions that the petitioner shall executive indemnity bond for Rs.3,00,000/- with one surety to the like-sum and also bank guarantee to the extent of Rs.6,00,000/- along with other conditions. Aggrieved by the said order, the petitioner filed another application before the said Court for relaxation of the condition to furnish bank guarantee which was also rejected by the said Court. Therefore, the petitioner having no other alternative or efficacious remedy has filed this writ petition under Articles 226 and 227 of Constitution of India R/w Section 482 of Cr.PC. 4. The petitioner has further stated that the trial Court committed patient error of jurisdiction by passing the impugned order which is liable to be quashed. The lorry of the petitioner when seized was empty and was not engaged in illegal mining or illegal transportation of any material. Condition to furnish bank guarantee is harsh and arbitrary. The impugned order is bad in law against the principles settled by this Court. In similar circumstances this Court has quashed the orders and also relaxed the condition to furnish bank guarantee. 5. Heard the learned counsel for the petitioner and learned High Court Government Pleader for the respondents. 6. The learned counsel for the petitioner relying on the judgment of this Court in the case of Sri Vivek and another V/s The State of Karnataka by Kunigal Police Station, Tumkur District and another, reported in, (2018) 2 KCCR 1239 , submitted that the Special Court has no jurisdiction to entertain the private complaint and take cognizance of the alleged offences under MMDR Act and KMMC Rules and therefore the very taking of the cognizance of alleged offences by the Special Court and registering the case and issue of summons to the petitioner on the basis of the private complaint is illegal and amounts to abuse of process of law. 7. Per contra, the learned High Court Government Pleader opposes the petition and justified the impugned order. 8. The record goes to show that the respondent No.2 the Geologist, Office of Senior Geologist Department of Mines and Geology, Bidar filed a private complaint before the Prl. 7. Per contra, the learned High Court Government Pleader opposes the petition and justified the impugned order. 8. The record goes to show that the respondent No.2 the Geologist, Office of Senior Geologist Department of Mines and Geology, Bidar filed a private complaint before the Prl. District and Sessions Judge / Special Judge under MMDR Act under Section 200 of Cr.PC against the petitioner herein to take cognizance of the offence punishable for the offences under Section 4(1), 21 of MMDR Act and Rule 3(1) 42 & 31 (r) 13 of KMMC Rules and R/w Section 379 of IPC. The private complaint was lodged on 24.09.2018 on the same day the learned Prl. Sessions Judge, Bidar passed the following order. "This Case filed by Satyabhama Geologist the Dept. of mines and Geology at Bidar. In U/s 200 Crpc. Perused the complaint Cognizance is taken against accused. Complaint is a Public Servant recording of Sworn Statement is dispensed, Bidar Rural PS V/S: Shamanna & Ors. Charge Under Section 3(1), 42 & 3(R) 13 of KMMRC Rules andSec.4(1).21 of MMRD Act and 3(1), 42, 31, 13 of KMMRC Rules Sec.379 of IPC Against the accused namely. 1. Shamanna S/o Adeppa, Age: 58 Occu: Business R/o Sikindrapur. 2. Amruth S/o Saidappa, Age: 32, Occu: Agri R/o Sikindrapur. 3. Premala W/o Karibasappa, Age: 55, Occu: Agri R/Sikindrapur. 4. Rajkumar S/o Bakkappa, Age: 48 Occu: Agri R/o Sikindrapur. 5. Omkar S/o Bheemshetty Bulla, Age: 41, Occ: Agri Kangankot. 6. Bassamma W/o Shankreppa, Age: 42 Occu: Agri R/o Sikindrapur. 7. Ramesh S/o Bheemanna, Age: 32, Occ: Coolie, R/o Kolar B, Tq.and Dist. Bidar. 8. Jeetendra S/o Manikrao Age: 30, R/o Osmangunj Bidar. 9. Shivkumar S/o Kashinath , Age: 35, R/o Andoorwadi Khadarnagar, Bidar." 9. The learned Prl. Sessions Judge, Bidar further passed the following order. "I perused the entire records it clear that there are sufficient materials to take cognizance of the offence punishable U/s. Under Section Under Section 3(1), 42 & 3(R) 13 of KMMRC Rules and Sec.4(1), 21 of MMRD Act and 3(1), 42, 31, 13 of KMMRC Rules Sec. 379 of IPC. Hence the cognizance of the offences as stated above is taken the office is directed to register the case and issue S/S to accused returnable by 15-12-2018". 10. Therefore, the learned Prl. Hence the cognizance of the offences as stated above is taken the office is directed to register the case and issue S/S to accused returnable by 15-12-2018". 10. Therefore, the learned Prl. Sessions Judge, Bidar on the basis of private complaint filed by respondent No.2 under Section 200 of Cr.PC directly took cognizance of the offence under Rule 3(1) 42 & 31 (r) 13 of KMMC Rules and 4(1), 21 of Mines & Minerals (Development & Regulation) Act along with Section 379 of IPC and directed the office to register the case and issue summons to the accused No.1 to 9 including the petitioner as accused No.9. Therefore, it is crystal clear that the learned Judge of the Special Court without applying mind immediately on the receipt of the complaint took cognizance of the offences stated in the complaint and ordered to register the case and issue summons to the petitioner and other accused. The petitioner has sought for quashing this order as illegal and without authority of law. 11. This Court in the case of Vivek and another V/s The State of Karnataka by Kunigal Police Station, Tumkur District and another, reported in, (2018) 2 KCCR 1239 dealt with filing of the complaint in respect of offences under the provisions of KMMC Rules and MMDR Act and taking of the cognizance of the said offences and the jurisdiction of the Special Court to take cognizance of the alleged offences under the said Act and Rules in detail. This Court has also issued 10 guidelines which should be born in mind by the police, Magistrates and Special Courts when a complaint for the offences under the provisions of MMDR Act and KMMC Rules is filed. In para 36 of the order the following guidelines are issued 1 to 10. "36. (1) The Special Court constituted under the MMDR Act, has no jurisdiction to directly take cognizance of the offences under the MMDR Act and KMMC Rules, even along with any other penal offences unless the case is committed by the jurisdictional Magistrate. It is made clear that the Special Court has no jurisdiction to receive a final, report from the Police u/s. 173 of Cr.PC or to receive any private complaint under the MMRD Act, directly from the authorized officer and take cognizance of the offences either under the MMRD Act or any other penal laws. It is made clear that the Special Court has no jurisdiction to receive a final, report from the Police u/s. 173 of Cr.PC or to receive any private complaint under the MMRD Act, directly from the authorized officer and take cognizance of the offences either under the MMRD Act or any other penal laws. If any such complaint is erroneously received and pending, the Special Court has to follow the procedure as contemplated under Section 201 of Cr.PC and return the complaint for representation to the proper Court with an endorsement to that effect. Likewise if any police report is received the same has to be transferred to the jurisdictional Magistrate invoking the provisions under Section 228(1) (a) of Cr.PC for appropriate action. (2) The Police cannot file a final report under Section 173 of Cr.PC for the offences under the MMRD Act & KMMC Rules either to the jurisdictional JMFC Court or to the Special Court. However, they can file the report for the offences under the IPC or any other penal law for the time being in force before the jurisdictional Magistrate. (3) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act & KMMC Rules on the basis of any Police report u/s. 173 of Cr.PC. However, if any penal provisions under the IPC or any other penal laws are available in the final report of the police, if there is no other legal bar; the Magistrate can take cognizance of such offences under the IPC or other penal laws for which he is empowered, except the offences under MMDR Act & KMMC Rules. (4) A private complaint is only contemplated under the MMDR Act & KMMC Rules and thus it has to be filed u/s. 22 of the Act by the competent authorized officer under the MMRD Act & KMMC Rules. Even if other offences under any other penal laws, are also included along with offences under MMDR Act and Rules, the jurisdictional Magistrate, has to take cognizance of the offences under MMDR Act & KMMC Rules only on the basis of the private complaint even though other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.RC, the Magistrate has to commit the entire the entire case to the Special Court for trail. (5) The Special Court gets jurisdiction to try the offences under the MMRD Act & KMMC Rules there under including any other offences under any other penal laws for the time being in force only after the case is committed to it for trial by the jurisdictional Magistrate. (6) If the authorized officer under Section 22 of the MMDR Act, has filed a private complaint, and the Magistrate has taken cognizance of the same, and during the course of inquiry or trial of private complaint, it is made to appear to the Magistrate that an investigation by the police in the same case is pending in relation to the offence which is the subject matter of inquiry or trial held by him then the Magistrate has to stay the proceedings of such inquiry or trial and call for the report on the matter from the police, and thereafter commit both the cases to the special Court, for trial. (7) If the police have already filed the report under Section 173 of Cr.P.C. for the offences under the MMRD Act and also under Order penal laws, like I.P.C. Motor Vehicles Act or under any other penal law for the time being in force where the Magistrate has taken cognizance of the offences under other Penal laws, during inquiry or trial of such case, if any private complaint is filed as per Section 22 of the said Act, by the authorized officer for the offences under MMDR Act and Rules arising out of same incident, the Magistrate shall stay all further proceedings, and commit both the cases to the special Court for trial of both the cases, as per Section 323 of Criminal Procedure Code, after following the procedure as contemplated under Section 202 (2) of Cr.PC. (8) The Special Court on receipt of the cases as noted at guidelines 6 and 7, relating to the same incident, as the case maybe has to try both the cases together, in accordance with law, adopting the procedure of a sessions trial, in view of the powers vested as per Section 30C of MMDR Act. (9) The provisions and powers of the Magistrate with regard to the bail and also with regard to the interim custody of the seized properties can be exercised by the Magistrate during the inquiry till the committal of the case to the Special Court. (9) The provisions and powers of the Magistrate with regard to the bail and also with regard to the interim custody of the seized properties can be exercised by the Magistrate during the inquiry till the committal of the case to the Special Court. (10) After committal of the case, the Special Court being the trial Court shall have all the powers of the Sessions Court regarding bail and disposal of the properties involved in the case, as provided under the provisions of the Code of Criminal Procedure. 12. Condition No.1 referred above goes to show that the Special Court Constituted under the MMDR Act has no jurisdiction to directly take cognizance of the offences under the MMDR Act and KMMC Rules, even along with any other penal offences unless case is committed by the jurisdictional Magistrate. It is made clear that the Special Court has no jurisdiction to receive the final report from the police under Section 173 of Cr.PC or to receive any private complaint under the MMDR Act, directly from the authorized officer and take cognizance of the offences either under the MMDR Act or any other penal laws. If any such complaint is erroneously received and pending, the Special Court has to fallow the procedure as contemplated under Section 201 of Cr.PC and return the complaint for presentation to the proper Court with an endorsement to that effect. Therefore, the impugned order under which the learned Prl. District & Sessions Judge / Special Court, Bidar under MMDR Act receiving the private complaint directly and taking cognizance of the alleged offences under the provisions of MMDR Act and KMMC Rules along with Section 379 of IPC and directing the office to register the case against the accused and for issue of summons is illegal and without jurisdiction and as such the same is liable to be quashed. Consequently the further order dated 13.12.2018 imposing condition directing the petitioner to furnish bank guarantee for Rs.6,00,000/- for the release of the vehicle to his interim custody is also liable to be relaxed and the said condition to furnish bank guarantee is liable to be set aside. 13. As observed in the case of Sri Vivek and another stated Supra. The impugned order dated 28.01.2019 passed by the learned Prl. 13. As observed in the case of Sri Vivek and another stated Supra. The impugned order dated 28.01.2019 passed by the learned Prl. District & Sessions Judge, Bidar is liable to be quashed and the complaint filed by the respondent No.2 has to be returned to her with an endorsement to present the same before the proper Court with an endorsement to that effect. Thus the petition deserves to be allowed. Accordingly, I proceed to pass the following ORDER The writ petition filed under Articles 226 & 227 of Constitution of India R/w Section 482 of Cr.P.C. is hereby allowed. The order dated 28.01.2019 passed in Special Case (MMDR) No.928/2018 on the file of Principal District and Sessions Judge, Bidar vide Annexure-B is hereby quashed. Consequently the order dated 13.12.2018 passed in the said case directing the petitioner to furnish bank guarantee for a sum of Rs.6,00,000/- for the release of Ashok Leyland Lorry bearing Registration No.KA-38-5040 is hereby quashed and the said condition to furnish bank guarantee is relaxed. However, Prl. District & Sessions Judge, Bidar is hereby directed to return the complaint to the complainant for presentation to the proper Court with a endorsement to that effect.