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2019 DIGILAW 474 (KAR)

Lakkappa Kenchappa Nandi v. State Of Karnataka

2019-02-20

BELLUNKE A.S.

body2019
ORDER : This revision petition is filed by the accused against the proceedings dated 11.10.2018 in C.C.No.2985/2018 registered for the offences punishable under sections 4(1A), 42(1), 44(1), 21, 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as ‘the MMDR Act’ for short) initiated against him by the II Additional JMFC, Gokak. Brief facts of the case as alleged in the complaint are as under: 2. That one Sri M.S.Tanappagol, Circle Police Inspector, Rural Police Station Gokak is the complainant. He being authorized person as per Government Notification bearing No.CI 21 MMN (2) 2014, Bangalore dated 21.01.2014 filed complaint under Section 22 of the MMDR Act read with section 200 of Cr.P.C. According to the complainant, on 22.09.2018 at 08.30 hours near Maladani cross in a tipper bearing KA.24/B.6386 was illegally transporting the sand. The complainant intercepted the said vehicle. Thereafter, seized the tipper with sand in the presence of panchas the complainant prepared panchanama. 3. The learned Magistrate without applying judicious mind, blindly registered the case and took the cognizance of the aforesaid offences by order dated 11.10.2018 and ordered to issue of process. Hence the revision petitioner is before this Court. 4. The main ground on which the revision petition filed is, that the complainant was not an authorized officer within the meaning of Section 22 of the MMDR Act. Therefore, the learned Magistrate could not have taken cognizance of the offences punishable under sections 4(1A), 42(1), 44(1), 21, 22 of the MMDR Act. The initiation of proceedings is illegal, contrary to law, procedure and principal of natural justice. 5. It is contended that the complainant is in violation of provisions of the MMDR Act and violation of provisions of the Karnataka Minor and Minerals Concessions Rule, 1994 (herein after referred to as ‘the KMMC Rules’ for short). The person who conducted investigation and filed complaint was not competent to conduct any search or seizure as provided under Section 23-B of the MMDR Act. 6. The complainant is not a Gazetted Officer as defined under the provisions of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The complaint was filed by an official below the rank of Group ‘B’ Officer who is not competent to file any complainant alleging the offences under the MMDR Act. 6. The complainant is not a Gazetted Officer as defined under the provisions of Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957. The complaint was filed by an official below the rank of Group ‘B’ Officer who is not competent to file any complainant alleging the offences under the MMDR Act. The search and seizure of the vehicle is also illegal and it is in contravention of the MMDR Act. 7. Further the Trial Court could not have taken cognizance of the offences alleged. Hence the revision petitioner prayed to set aside the order of the trial court taking cognizance of the offence and issue of process and has prayed to quash the proceedings. 8. The Police Officers cannot file a private complaint before the Magistrate. They can only assist the complainant who is competent or authorized person. Therefore, continuation of proceedings will amount to harassment to the revision petitioner. The complaint has been filed maliciously, therefore it is prayed to quash the same. 9. Heard the learned counsel for the revision petitioner as well as learned Additional Government Advocate and perused the materials on record. 10. Learned counsel for the revision petitioner submits that under Rule 2(a-1-a) of the KMMC Rules, the Police Sub-Inspector is not a competent person to file such complaint who is not a Gazetted Officer or not an authorized person as provided under Section 23-B of the MMDR Act. Notification issued by the Government cannot have overriding effect on KMMC Rules. Therefore, learned counsel has prayed to allow the revision petition. 11. Learned Additional Government Advocate has supported the order of the learned Magistrate and submitted certain authorities in support of his arguments. 12. From the tenor of the petition and as well as arguments of the learned counsel for the revision petitioner, three main points would arise for consideration as follows: 1. Whether the complainant is authorized officer under Section 22 of the MMDR Act, within the meaning of Section 23-B of the MMDR Act to file complaint for the offences punishable under section 4(1A), 42(1), 44(1), 21, 22 of the MMDR Act? 2. Whether the magistrate was not empowered to entertain and register the case on the basis of private complaint filed by the Investigating Officer – Police Officer for the offences punishable under MMDR Act and KMMC Rules? 3. 2. Whether the magistrate was not empowered to entertain and register the case on the basis of private complaint filed by the Investigating Officer – Police Officer for the offences punishable under MMDR Act and KMMC Rules? 3. Whether the revision petitioner proves that, taking of cognizance of the offence alleged was contrary to the provisions of the MMDR Act? 4. What Order? 13. My findings on the aforesaid points are as follows : Point No.1 : In the affirmative. Point No.2 : In the negative. Point No.3 : In the negative. 14. Section 397 of the Criminal Procedure Code empowers this Court to examine the legality and correctness of the order of a Criminal Court or a Sessions Court which is inferior to this Court. It also empowers to examine the propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to examine the correctness and legality of such above said proceedings. 15. The case before trial court is at the threshold of taking cognizance and issue of process. In a case of this nature initially the provisions of Section 200 of the Code of Criminal Procedure are invoked. The revision petitioner has not challenged, that there was any irregularity in following Sections 200, 201, 202, 203 and 204 of Cr.P.C. 16. In addition to that I am of the considered opinion that the point raised by revision petitioner in challenging the order of learned Magistrate taking cognizance of the offence is quite premature. 17. Since this is a revision petition, the legality of MMDR Act or KMMC Rules or notification cannot be challenged. Section 397 of Cr.P.C provides for only challenging correctness and legality of the orders passed by criminal Court or a Sessions Court as the case may be. As regards the other points raised by revision petitioner that the complainant is not an authorized officer within the provision of the MMDR Act and KMMC Rules etc. Section 397 of Cr.P.C provides for only challenging correctness and legality of the orders passed by criminal Court or a Sessions Court as the case may be. As regards the other points raised by revision petitioner that the complainant is not an authorized officer within the provision of the MMDR Act and KMMC Rules etc. and he had no power for search or seizure under Section 21(4) read with 23-B of the MMDR Act and whether the Magistrate is empowered to entertain the private complaint and register the case for the offences under sections 4(1A), 42(1), 44(1), 21, 22 of the MMDR Act., were examined by the Bench of this Court in a reported decision ILR 2018 KAR 1497 (Sri Vivek and Another Vs. The State of Karnataka, by Kunigal Police Station and Another). It is specifically held as under: (B) MINES AND MINERALS (DEVELOPMENT AND REGULATIONS) ACT, 1957 (FOR SHORT ‘MMDR ACT) – SECTION 21(1) AND KARNATAKA MINOR MINERAL CONCESSION RULES, 1994 (for Short ‘KMCC Rules’) – Rule 44(1) – Breach of violation of MMDR Act and the Rules – Power of the Special Court to take cognizance of the offences under MMDR Act and the Rules jurisdiction of the JMFC to take cognizance of the offences under the MMDR Act and the Rules. (a) In order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules thereunder. (b) 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 cases 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 under Section 173 of Cr.P.C., 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 follow 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. 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 presentation to the proper Court with an endorsement to that effect. Like wise 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.P.C., for appropriate action. (c) The police cannot file a final report under Section 173 of Cr.P.C., for the offences under the MMDR Act and KMMC Rules either to the jurisdictional JMFC Court or to the Special Court. However, they can file the report for the offences under the Indian Penal Code or any other penal law for the time being in force before the jurisdictional Magistrate. (d) The jurisdictional Magistrate has no jurisdiction or power to take cognizance for the offence punishable under the MMDR Act and KMC Rules on the basis of any Police report under Section 173 of Cr.P.C. 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 and KMMC Rules. (e) A private complaint is only contemplated under the MMDR Act and KMMC Rules and thus it has to be filed under Section 22 of the Act by the competent authorized officer under the MMDR Act and 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 and KMMC Rules only on the basis of the private complaint even through other penal laws are also invoked by the authorized officer and after compliance of relevant provisions of Cr.P.C., the Magistrate has to commit the entire case to the Special Court for trial. (f) The Special Court gets jurisdiction to try the offences under the MMDR Act and KMMC Rules thereunder 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. (f) The Special Court gets jurisdiction to try the offences under the MMDR Act and KMMC Rules thereunder 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. (g) 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 of the matter from the Police, and thereafter commit both the cases to the Special Court, for trial. 18. Therefore the above said decision squarely answers all the points raised by the learned Counsel for the revision petitioner. It is not known whether the learned counsel was not aware of this ruling or he has omitted to bring it to the notice of this Court. The said authority is relied by the Additional Government Advocate. 19. In addition to that the learned Additional Government Advocate relied on order passed by the learned Single Judge of this Court in Crl.P.No.4250/2018 (Saiyed Jiyaula and others Vs. State of Karnataka and another) dated 28.06.2018, wherein in this Court held as under: (a) In order to empower the Court to take cognizance of the offences under MMDR Act and Rules, a private complaint is required to be filed by the competent authority for the offences punishable under the MMDR Act or Rules thereunder. Wherein in above referred principles are affirmed, in the said case registration of case by the police under the MMDR Act is bad in law. Though it was made clear that the police have got power and jurisdiction to investigate the offence under Section 379 of IPC only to that extent register of FIR is held to be valid. 20. Wherein in above referred principles are affirmed, in the said case registration of case by the police under the MMDR Act is bad in law. Though it was made clear that the police have got power and jurisdiction to investigate the offence under Section 379 of IPC only to that extent register of FIR is held to be valid. 20. In W.P.No.181/2018, the learned Single Judge of this Court again held that the offences punishable under the provisions of the MMDR Act and KMMC Rules, the authorities under the Act and Rules have to file a private complaint under Section 200 of Cr.P.C., and registration of FIR is impermissible. Therefore, that exactly what is done in this case. Now the question would be whether the police officer who had filed a complaint under Section 200 of Cr.P.C. is an authorized person or not. Learned counsel for the revision petitioner submitted that the said officer is not an authorized person. In addition to that it is also submitted that, he is not an gazetted officer to file a private complaint under the provision of Section 22(2) of MMDR Act. What is required is that the complaint should be an authorized person. Section does not contemplate that he should be Gazetted Officer. 21. In addition to that the learned counsel has produced the gazette notification bearing No.CI 21 MMN (2) 2014, Bangalore, dated 31.01.2014, wherein the state Government has issued a notification in exercise the power conferred. It reads as under: “No.CI 21 MMN (2) 2014, Bangalore, dated 21.01.2014 In exercise of the powers conferred by subsection (3) and (4) of Section 21 and section 22 of Mines and Mineral (Regulation and Development) Act, 1957 (Central Act 67 of 1957) and sub-rule (3) of rule 43 and rule 46 of Karnataka Minor Mineral Concession Rules, 1994 and in modification of Notification No.CII 186/96/19839 dated 4.2.1993, the Government of Karnataka do hereby authorize the officers/authorities specified in column (2) of the table below in respect of the area specified in the corresponding entries in column (3) thereof, for the purpose of the said sub-section (3) and (4) section 21 and section 22 of the Act and sub-Rule (3) rule 43 and rule 46 of the Karnataka Minor Mineral Concession Rules, 1994. Sl. No. Designation of Officers/ Authorities Jurisdiction Department 1 The Additional Director (mineral Administration) Whole of State Department of Mines and Geology. Sl. No. Designation of Officers/ Authorities Jurisdiction Department 1 The Additional Director (mineral Administration) Whole of State Department of Mines and Geology. 2 The Joint Director, South/ North Zones Within their jurisdiction Department of Mines And Geology. 3 Deputy Director (mineral administration) Whole of the State Department of Mines And Geology. 4 The Deputy Commissioner Respective Districts Revenue Department 5 The Superintendent of Police/Police Commissioner Respective Districts. Police Department 6 The Deputy Conservator of Forest Respective jurisdiction Forest Department. 7 The Deputy Superintendent of Police Respective sub-Davison. Police Department. 8 Deputy Directors /Senior Geologist Within their jurisdiction Department of Mines and Geology. 9 The Asst. Commissioner Respective sub-division. Revenue Department 10 Geologists Within their jurisdiction Department of Mines and Geology. 11 The Tahasildhar Respective Taluk Revenue Department 12 The Circle Inspector / inspected of police Within their jurisdiction Police Department 13 Sub-Inspector of Police within their jurisdiction Within their jurisdiction Police Department 14 The Revenue Inspector Respective Hoblies Revenue Department 15 The Range Forest Officers Respective Range Forest Department Under the said notification, who are all the authorized officers/authorities specified in column No.2 of the table below of the notification to carry out the purposes of the said MMDR Act and Rules. In the said table the Circle Inspector/Inspector of Police and Sub-Inspector of Police are authorized person to exercise power in respect of the cases arising out of the above said MMDR Act within their jurisdiction. 22. The leaned counsel for the revision petitioner wants to contend that this notification is illegal as it is issued by a Secretary of the Commerce and Industries Department. 23. It is important to note that, it is a gazette notification issued by the State Government by order and in the name of Governor of Karnataka. As per the business allocation of Rules, it is the Secretary of the Department will sign and issue the notification. It is a notification issued by the State Government. Moreover under Section 397 of Cr.P.C legality of this Notification cannot be decided. It has to be examined in an appropriate writ petition and not while exercising power under Section 397 of Cr.P.C. Therefore, as per Section 22(1) of the said MMDR Act, the Circle Inspector is authorized person, empowered to file complaint. Hence on appreciation all the above said authorities and provisions of law, I find that the revision petition is devoid of any merits. 24. Hence on appreciation all the above said authorities and provisions of law, I find that the revision petition is devoid of any merits. 24. It is also found that, application filed for releasing of the vehicle. The revision petitioner has to exhaust his remedy before the jurisdictional court and thereafter he has to approach this Court. 25. Whether the officer in question is an authorized person or not or the authorized officer or not can also be gone into at the time of trial. Because the prosecution may produce necessary evidence, therefore only on the basis of bare reading of the provision, taking of cognizance cannot be set aside. 26. Hence for all these reasons, the points are answered accordingly. Revision petition is devoid of any merits, therefore it is dismissed. 27. In view of the dismissal of the revision petition, applications pending, if any, does not survive for consideration accordingly, dismissed.