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2019 DIGILAW 645 (KAR)

Shivappa v. State of Karnataka

2019-03-14

H.P.SANDESH

body2019
ORDER : H.P. Sandesh, J. 1. Heard the arguments of the learned Counsel appearing for the petitioner and the learned HCGP for the respondent-State. 2. The factual matrix of this case is that the ASI has lodged the complaint alleging that on 29-5-2018 at about 10.30 a.m. the complainant along with his staff was doing patrolling duty in the police jeep to detect persons involved in property offences at Hidkal Dam, Chilabhavi and Aralikatti and thereafter, when they came near Chilabhavi cross at 11.00 a.m. they observed two tempo coming from Aralikatti side and on suspicion, they stopped their jeep and intercepted the said two tempos. The drivers of the said tempos by abandoning their vehicles ran away from the spot. On inspection of tempo bearing No. KA-23/6131 and unnumbered tempo, they found that they have loaded sand and hence having came to know about the drivers of the tempo involved in illegal transportation of sand without having any valid permit, they brought the vehicles to the police station and secured panchas and seized the vehicle and registered Crime No. 190/2018 for the offences under Section 379 of Indian Penal Code, 1860 and under Sections 4(1), 4(1-A) and 21 of Mines and Minerals (Development and Regulation) Act, 1957 (for short, the 'Act') and under Rules 3, 32, 42 and 44 of Karnataka Minor Mineral Concession Rules, 1994 (for short, 'Rules') against unknown persons and the Court below was pleased to take the cognizance and numbered the case as CC No. 828/2018 and hence the petitioner is before this Court by filing this petition seeking relief of quashing the impugned order. 3. The main contention of the petitioner in this case is that the complaint is given by the ASI and based on the complaint case has been registered and not only registered case and investigated the matter and filed charge-sheet, the Court below has erroneously taken the cognizance inspite of there is a bar under Section 22 of the special enactment and hence the same has to be quashed. 4. Per contra, the learned HCGP in his argument he contends that no infirmity under the law in registering the case since the offences are cognizable offences under Section 21(6) of the MMDR Act, but taking the cognizance there is a bar under Section 22 of the MMDR Act and hence the Court has to take note of the same. 5. Per contra, the learned HCGP in his argument he contends that no infirmity under the law in registering the case since the offences are cognizable offences under Section 21(6) of the MMDR Act, but taking the cognizance there is a bar under Section 22 of the MMDR Act and hence the Court has to take note of the same. 5. Having heard the learned Counsel for the petitioner and the learned HCGP for the respondent-State, this Court has to examine whether this Court can exercise the powers under Section 482 of Criminal Procedure Code, 1973 to quash the proceedings. 6. On perusal of the material, Annexure-A discloses that the Court below has taken cognizance based on the charge-sheet filed by the police for both the offences under Section 379 of IPC and also for the offences under the MMDR Act and issued the process. For having taken note of the material available on record i.e. Annexure-A and Annexure-C the ASI gave the complaint to the SHO and based on the complaint Crime No. 190/2018 is registered for both IPC offences and also for the offences under the special enactment and this Court also held in series of cases that the police can register the case exercising powers under Section 154 of Cr. P.C. since the offences are cognizable offences but there is a bar under Section 22 of the MMDR Act and recently the Apex Court in Linganagouda's case held that the Court cannot take cognizance based on the police charge-sheet and there must be a complaint by an authorised person and with regard to authorising the person also the Government issued notification in the year 2014 and the complaint is not by the authorised person and hence the very taking of cognizance is hit by Section 22 of the MMDR Act. However, the Apex Court in the judgment in the case of State of NCT of Delhi v Sanjay 2014 (143) AIC 200 (SC): VII (2014) SLT 531 : 2014 (10) SCJ 101, AIR 2015 SC 75 , held that taking cognizance in respect of the offences under Section 379 of IPC there is no any bar and the same has to be continued. 7. In view of the above discussions, this Court proceed to pass the following: ORDER The petition is partly allowed. 7. In view of the above discussions, this Court proceed to pass the following: ORDER The petition is partly allowed. Taking cognizance for the offence punishable under Sections 4(1), 4(1-A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 and under Rules 3, 32, 42 and 44 of the Karnataka Minor Mineral Concession Rules, 1994 are hereby quashed. However, liberty is given to the authorised person to proceed in accordance with law. Process issued against the accused for the offence under Section 379 of IPC can be continued against the petitioner.