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2019 DIGILAW 605 (KAR)

RAMAPPA v. STATE OF KARNATAKA

2019-03-08

H.P.SANDESH

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JUDGMENT : H.P. Sandesh, J. Heard the petitioner's counsel and also the learned HCGP. 2. This petition is filed under Section 482 of Cr.P.C. praying this Court to quash the criminal proceedings initiated against the petitioner in Crime No.131/2018 for the offences punishable under Section 379 of IPC and 4(1) read with Section 21 of Mines and Minerals (Development and Regulation) Act (for short, 'MMDR Act') and Rules 3, 32 and 44 of Karnataka Minor Mineral Concession Rules 1994 (for short, 'KMMC Rules') on the file of the Prl. Civil Judge and JMFC, Ramadurg and prayed this Court to pass such other relief as deems fit in the circumstances of the case. 3. The factual matrix of the case is that PSI of Katakol P.S. given the complaint to the SHO stating that he has received credible information that this petitioner is unauthorizedly loading the sand in three tractors and hence immediately he himself and along with other staff went and seized the tractors and based on the complaint, the SHO registered the case in Crime No.131/2018 for the offences under Section 379 of IPC and 4(1) read with Section 21 of MMDR Act and Rules 3, 32 and 44 of KMMC Rules. 4. The petitioner's counsel also filed a memo before this Court stating that the Court below also taken the cognizance for the offences punishable under Section 379 of IPC and Sections 21(1), 4(1), (1A), (4A) of MMDR Act and Rules 3, 32 and 44 of KMMC Rules and ordered to register criminal case against the accused. 5. The main contention of the petitioner's counsel in his argument that based on the complaint the case has been registered for both IPC offences and under the special enactment and no separate complaint is filed and subsequently cognizance is also taken for the offences under the special enactment and there is a bar under Section 22 of the MMDR Act for taking the cognizance unless the complaint is filed by the authorized person, no Court shall take cognizance and hence the very initiation of criminal proceedings and taking of cognizance has to be quashed. 6. 6. Per contra, the learned HCGP in his argument he contends that the Station House Officer has registered the case based on the complaint of PSI and no legal infirmity in registering the case and fairly concedes that without any complaint by authorized person the Court below has taken the cognizance for the offences under the special enactment and hence he contends that the initiation of proceedings for the offence under Section 379 of IPC there is no bar and legal infirmity only for taking cognizance is concerned for the special enactment, this Court has to take note of the same and dispose of the matter. 7. Having heard the argument of the petitioner's counsel and the learned HCGP, the point that arise for my consideration is whether this Court can invoke Section 482 of Cr.P.C. in quashing of the proceedings as prayed. 8. Admittedly, there is no dispute with regard to the fact that the case was registered based on the complaint of PSI which was given to the SHO for both the offences and for registration of the case is there is no bar as this Court also held in series of cases that under Section 154 of Cr.P.C. the SHO can register a case and commence the investigation since the offences are cognizable offences under Section 21(6) of the Act. Taking of cognizance for the offence under the special enactment there is a legal infirmity and there is a bar under Section 22 of the MMDR Act and the same has also held by the Hon'ble Apex Court in Linganagouda's case. The Hon'ble Apex Court in the case of State (NCT of Delhi) Vs Sanjay, (2014) 9 SCC 772 , distinguished with regard to the offences under the Act and also under Section 379 of IPC and also further held that there is no double jeopardy and both the offences are distinct and Court can proceed based on the police complaint in view of the offence under Section 379 of IPC. Having taken note of the material on record, the Court below has committed an error in taking the cognizance for the offence under the special enactment since the offences under the special enactment are cognizable offences and there is a bar under Section 22 of MMDR Act for taking the cognizance and cognizance has to be taken only if a complaint is filed by an authorized person or otherwise it is bad in law in respect of offences under the special enactment. 9. On clear reading of Section 22 of the Act, it is clear that the Court can take cognizance only on the complaint filed by the authorized person that too in respect of the offences under the MMDR Act and on perusal of the complaint and the FIR which is registered against the petitioner, the police have invoked the provisions of Sections 4(1) and 21 of the MMDR Act and under Rules 3, 32 and 44 of KMMC Rules and under Section 379 of IPC. Hence, I am of the opinion that the very initiation of the proceedings against the petitioner under Sections 4(1) in respect of penal provisions and Section 21 of the MMDR Act and Rules 3, 32 and 44 of the Rules, is not contrary to law and only bar is to take cognizance in the absence of a complaint by the authorized persons for the offences under the special enactment. Hence, I am of the opinion that in respect of offence under the special enactment, taking of cognizance is contrary to law and the same is liable to be quashed. In so far as taking cognizance for offence Section 379 of IPC is concerned, I do not find any reasons to interfere with regard to the said proceedings against the petitioner. The Court can proceed for the offence under Section 379 of IPC. 10. In view of the above discussions, I proceed to pass the following: ORDER The petition is partly allowed. The cognizance taken against the petitioner for the offence punishable under Sections 4(1) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and under Rules 3, 32 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 are hereby quashed. The proceedings under Section 379 of IPC can be continued against the petitioner. The cognizance taken against the petitioner for the offence punishable under Sections 4(1) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and under Rules 3, 32 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 are hereby quashed. The proceedings under Section 379 of IPC can be continued against the petitioner. However, the authorized person is having at liberty to proceed against the petitioner in respect of the MMDR Act and Rules in accordance with law.