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2022 DIGILAW 1436 (GUJ)

PRAHLADBHAI JYANTIBHAI RAVAL v. STATE OF GUJARAT

2022-10-18

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Heard learned advocate Mr. Nehal Gandhi appearing on behalf of Ms. Richa Shah learned advocate for the applicants and Learned APP Ms. Maithili Mehta for the respondent Nos. 1 and 2. 2. By way of the present application the applicant herein has prayed to quash and set aside the Criminal Case No. 501 of 2014 pending before the Hon’ble Chief Metropolitan Magistrate, Ahmedabad arising out of the FIR being I-C.R. No. 116 of 2014 registered with the Isanpur Police Station, Ahmedabad. 3. Learned advocate Mr. Nehal Gandhi for the applicants submitted that as there was very heavy rain on 23.07.2014 in Ahmedabad and as per the instruction given by the customer, instead of unloading the ordinary sand on 23.07.2014 in morning hours, the applicant No. 1 was instructed to load the ordinary sand on intervening night hours between 23.07.2014 and 24.07.2014. It is submitted that on 23.07.2014 at about 11:30 p.m. the complainant/ respondent No. 2 stopped the dumper and without asking anything to the applicant No. 1 and/or without inquiring about the valid transport permit, without giving opportunity for producing the royalty pass the applicant No. 1 was arrested by the Police authority. 4. The applicant No. 1-original accused No. 1, is the driver of the vehicle in question and the applicant No. 2-accused No. 2, is the owner of the said vehicle. An FIR came to be lodged on 24.07.2014 by the respondent No. 2 with the Isanpur Police Station, Ahmedabad being I-C.R. No. 116 of 2014 for offences punishable under Sections 379 and 114 of the Indian Penal Code. After completion of investigation, on 21.09.2014 the investigating officer filed charge-sheet in the Court of the learned Chief Metropolitan Magistrate, Ahmedabad. On 24.07.2014, the respondent No. 2 filed a report to add Section 4(1) of Mines and Minerals (Development and Regulation) Act, 1957 (for short “MMDR Act”) and Sections 5, 6 and 8 of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. 5. The respondent No. 2 in the said complaint dated 24.07.2014 has alleged that on 24.07.2014 the complainant received information that one Tata Dumper bearing RTO Registration No. GJ-18-AU-8705 was containing sand without there being any royalty pass and which was going to pass from Bhiravnath Cross Roads. 5. The respondent No. 2 in the said complaint dated 24.07.2014 has alleged that on 24.07.2014 the complainant received information that one Tata Dumper bearing RTO Registration No. GJ-18-AU-8705 was containing sand without there being any royalty pass and which was going to pass from Bhiravnath Cross Roads. It is further alleged in the FIR that the complainant had called for Panch witnesses and the police personnel were in watch for the Tata Dumper. It is also alleged in the FIR that thereafter, the Tata Dumper was made to stop by the Police authority and upon asked for producing necessary royalty pass, the applicant No. 1 denied for the same and under such circumstances, the said FIR came to be lodged which culminated into charge-sheet on 21.09.2014, wherein, the provisions of the MMDR Act and the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules came to be added. 6. Being aggrieved by the aforesaid the applicants herein have approached this Court by filing the present application seeking quashing of the Criminal Case No. 501 of 2014 pending before the Hon’ble Chief Metropolitan Magistrate, Ahmedabad arising out of the FIR being I-C.R. No. 116 of 2014 registered with the Isanpur Police Station, Ahmedabad and the consequential proceedings thereof. 7. At this stage, before entering into the merits of the matter, it is apposite to refer to the position of law, wherein, it is held that in respect of a complaint for contravention of the provisions of Section 4 and other Sections of the MMDR Act, the officer empowered and authorized under the Act shall exercise all powers including filing of complaint before the Jurisdictional Magistrate. 8. It is apposite to refer to the position of law laid down by this Court in case of Manjulaben Ramniklal Thanki vs. State of Gujarat, 2019 (3) GLR 1786 , wherein it is held thus: “(8) At this stage, it would be apposite to refer to the judgment rendered by the Apex Court in the case of State (NCT of Delhi) vs. Sanjay (supra), wherein the Apex while examining the provision of section 22 and section 4 of the MMDR Act has observed thus: “69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code.” (9) In the present case the impugned F.I.R. is filed for the contravention of provisions of section 4 and other sections of the MMDR Act and no offence under the IPC is alleged against the applicant. Hence, as per the law enunciated by the Apex Court, the prohibition contained in Section 22 of the Mines and Minerals Act against prosecution of a person, except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Mines and Minerals Act and not for any act or omission which constitute an offence under the IPC. (10) Accordingly, the impugned F.I.R. being C.R. No. I-32 of 2015 registered with Kalyanpur Police Station, District Devbhoomi Dwarka as well as all consequential and subsequent proceedings arising from the impugned F.I.R. is hereby quashed. RULE is made absolute. (11) However, it is clarified that it shall be open for the respondent-Department to file a private complaint in the court of the concerned Magistrate for the offence punishable under section 4 of the MMDR Act, through an officer authorized in that behalf, and if such complaint is filed, the concerned Magistrate shall proceed to consider the same in accordance with law. (12) Resultantly, the connected Criminal Misc. Application No. 1 of 2018 for direction moved in the main writ application stands disposed of.” 9. In case of Sultan Juma Bhatti vs. State of Gujarat passed in Criminal Misc. Application No. 8594 of 2013 dated 16.08.2017, this Court in Para 8 observed thus: “8. In the present case, during the course of hearing, it was pointed out by learned advocate Mr. Pathan that in connection with the impugned FIR, charge-sheet has also been filed. But, even then, the Magistrate concerned shall not have the power to take cognizance of the offence in view of the express bar provided u/s. 22 of the Act. Further, the police authority also could not insist the Magistrate concerned to take cognizance under the Act on the basis of the police report. In conclusion, it would appear that though for the offences alleged under the Act or the Rules framed thereunder, it would be open to the police to register an FIR upon receipt of information of commission of such offences, upon completion of investigation, the Magistrate concerned is prevented from taking cognizance of the offences otherwise on a complaint by an authorized officer. This is, however, not to suggest that on the basis of the report of the Investigating Officer, the authorized person would not be in a position to file a complaint before the Magistrate concerned relying on such material or the report of the investigating agency.” 10. It is apposite to refer to Section 378 of the Indian Penal Code which defines theft as to take dishonestly any movable property out of the possession of any person without that person’s consent. Whoever commits the said offence shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. 11. This Court has placed reliance on the decision of Hon’ble Apex Court in case of State of NCT of Delhi vs. Sanjay, AIR 2015 SC 75 , wherein, the Hon’ble Apex Court observed as under: “66. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the river bed. 67. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the eco-system of the rivers and safety of bridges. It also weakens river beds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the ground water levels. 68. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 69. However, there may be situation where a person without any lease or licence or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is laible to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code. 70. From a close reading of the provisions of MMDR Act and the offence defined under Section 378, IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravels and other minerals from the river, which is the property of the State, out of State’s possession without the consent, constitute an offence of theft. 71. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under Section 173, Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure. 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C. on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMRD Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrates to proceed accordingly.” 11.1 In the aforesaid decision, the Hon’ble Apex Court has considered the dispute in question that whether the provisions contained in Sections 21, 22 and other Sections of Mines and Minerals (Development and Regulation) Act, 1957, operate as bar against prosecution of a person who has been charged with allegation which constitute offences under Sections 379/114 and other provisions of the IPC. In other words, whether the provisions of Mines and Minerals Act explicitly or impliedly excludes the provisions of IPC when the act of an accused is an offence both under the IPC and under the provisions of Mines and Minerals (Development and Regulation) Act. After considering the relevant provisions and precedents, the Hon’ble Apex Court held that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. After considering the relevant provisions and precedents, the Hon’ble Apex Court held that the ingredients constituting the offence under the MMDR Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Code of Criminal Procedure, on receipt of the Police Report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. 12. Considering the facts of the present case and the ratio laid down as referred above, the filing of charge-sheet against the applicants herein under the provisions of MMDR Act is not maintainable in view of the explicit bar under Section 22 of the MMDR Act. It is open for the respondent authority to take appropriate steps in accordance with the MMDR Act. Also, it is open for the applicants herein to take all the contentions as are taken in the present application, before the concerned Court. The observations that are made before this Court are for the purpose of arriving at the aforesaid conclusion. The concerned Court shall decide the Criminal Case No. 501 of 2014, independently, taking into consideration all the contentions that may be taken by the learned advocates appearing for the respective parties. 13. In view of above, the present application is partly allowed with the direction that the FIR being I-C.R. No. 116 of 2014 and the charge-sheet qua the provisions of MMDR Act, 1957 and the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005, are hereby quashed and set aside with a liberty to file complaint before the competent Court in accordance with law. This Court has not opined on the merits of the case. Consequently, the proceedings of Criminal Case No. 501 of 2014 pending before the Chief Metropolitan Magistrate, Ahmedabad, is directed to be terminated qua the provisions of MMDR Act, 1957 and the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. This Court has not opined on the merits of the case. Consequently, the proceedings of Criminal Case No. 501 of 2014 pending before the Chief Metropolitan Magistrate, Ahmedabad, is directed to be terminated qua the provisions of MMDR Act, 1957 and the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005. However, it is clarified that the complaint is directed to be continued qua the provisions of IPC as invoked by the respondent authority by way of filing the FIR being I-C.R. No. 116 of 2014 and Criminal Case No. 501 of 2014. 14. Accordingly, the present application stands disposed of. Rule is made absolute to the aforesaid extent.