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2022 DIGILAW 1546 (GUJ)

Atul Kanjibhai Patel v. State of Gujarat

2022-11-09

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Heard Mr. Ujwan, learned advocate for Mr. Hardik H. Dave, learned advocate for the applicant and Mr. Soaham Joshi, learned Additional Public Prosecutor appearing for the respondent – State. 2. By way of present application, the applicant herein has prayed for quashing of complaint being I-C.R.No.12 of 2014 filed under Section 379, 467, 468 and 471 of the Indian Penal Code and Section 4(1)(a) of the Mines and Minerals (Development and Regulation) Act, 1957 and Rules 4, 68 and 71 of the Gujarat Minor Minerals Concession Rules - 2010 and Section 3, 5, 6 and 13 of the Gujarat Minerals (Prevention of Illegal Mining, Transportation and Conservation Rules, 2005) and subsequent filing of chargesheet being CC/1566/2014 before the learned Chief Judicial Magistrate, Vyara, qua the present applicant. 3. The applicant herein has prayed for the following reliefs :- "i. Quash and set aside the complaint being I - CR. No. 12/2014 under section 379, 467, 468 and 471 of the IPC and Section 4(1)(a) of the Mines and Minerals (Development and regulation Act, 1957) and Rules 4, 68 and 71 of the Gujarat Minor Minerals Concession Rules - 2010 and Section 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation and conservation Rules - 2005) subsequent filing of chargesheet being CC/1566/2014 before the Ld. Chief Judicial Magistrate, Vyara, qua the present applicant; ii. pending admission and/or final disposal of this petition, proceedings in the complaint being I - CR. No. 12/2014 under section 379, 467, 468 and 471 of the IPC and Section 4(1)(a) of the Mines and Minerals (Development and regulation Act, 1957) and Rules 4, 68 and 71 of the Gujarat Minor Minerals Concession Rules - 2010 and Section 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation and conservation Rules - 2005) subsequent filing of chargesheet being CC/1566/2014 before the Ld. Chief Judicial Magistrate, Vyara, qua the present applicant; be stayed qua the present applicant; iii. pass such orders as thought fit in the interest of justice." 4. Chief Judicial Magistrate, Vyara, qua the present applicant; be stayed qua the present applicant; iii. pass such orders as thought fit in the interest of justice." 4. Learned advocate appearing for the applicant stated that it is the case of the prosecution that the applicant herein having requisite licenses for conservation of sand in spite of restrictions on supply of the said material outside the boundary of the State of Gujarat, supplied the same to other co-accused persons and the same was transported without handing over any delivery challan or royalty pass to the driver of the truck in which the goods were supplied to the traders in State of Maharashtra. 5. It is further stated that the co-accused persons on basis of false royalty passes and delivery challan of a firm located at Jhallor, Rajashthan delivered the said sand to Dombivali, Maharashtra. Upon checking by competent authorities the said facts came to light and the impugned complaint came to be registered. 6. Learned advocate appearing for the applicant submitted that the applicant was arrested on 19.04.2014 and has been enlarged on regular bail by Criminal Misc. Application No.67 of 2014 by the learned Principal District Judge, Tapi. 7. Being aggrieved by the aforesaid complaint filed against the applicant herein, the applicant herein is constrained to approach this Court by filing the present application for the reliefs as stated above. 8. Learned advocate appearing for the applicant submitted that the applicant holds a valid license of mining license, transporting and storing sand minerals for further sell and that the applicant had only sold the sand to other accused and that the applicant was not aware about the fact that the other co-accused had plans to sell the same outside State of Gujarat and on the basis of false and fabricated royalty passes and delivery challans. It was also submitted that Section 22 of the MMRD Act provides that no Court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. Learned advocate has also placed reliance on Section 2(d) which defines complaint. 9. Learned advocate has also placed reliance on Section 2(d) which defines complaint. 9. Placing reliance on the aforesaid submissions, learned advocate appearing for the applicant submitted that the impugned complaint is not maintainable and that the same is not instituted before the learned Magistrate but the complaint was filed before the police authority/police officer and therefore, the said complaint which has culminated into charge-sheet and resultuntly the same is required to be quashed. 10. 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 provisions of Section 4 and other Sections of MMDR Act, the officer empowered and authorised under the Act shall exercise all powers including filing of complaint before the Jurisdictional Magistrate. 11. 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 in 2019 (3) GLR 1786 , wherein it is held thus : “(8) At this stage, it would be apposite to refer to the judgement 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. 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.I32 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. (10) Accordingly, the impugned F.I.R. being C.R. No.I32 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.” 12. 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, chargesheet 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.” 13. This Court has placed reliance on the decision of Hon’ble Apex Court in case of State of NCT of Delhi Vs. Sanjay reported in AIR 2015 SC 75 , wherein, the Hon’ble Apex Court observed as under : “66. This Court has placed reliance on the decision of Hon’ble Apex Court in case of State of NCT of Delhi Vs. Sanjay reported in 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. 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. 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. 72. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-à-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.” 14. In the aforesaid, the ratio laid down by the Hon’ble Supreme Court as well as this Court have considered the dispute in question that whether provisions contained in Sections 21, 22 and other sections of the Mines and Minerals Act, 1957 operate as bar against the prosecution of a person who has been charged with the allegation which constitute offences under Section 379/114 and other provisions of Indian Penal Code. In other words, whether provisions of Mines and Minerals Act explicitly or impliedly exclude the provisions of Indian Penal Code when the Act of accused is an offence both under Indian Penal Code and the provisions of MMDR. 15. After considering the relevant provisions and precedents, the Hon'ble Apex Court held that the ingredient constituting offence under MMDR Act and the ingredient of dishonestly removing sand and gravel from the riverbeds without without consent, which is the property of the State, is a distinct offence under Indian Penal Code. Hence, for the commission of offence under Section 378 of the Indian Penal Code, 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. 16. Hence, for the commission of offence under Section 378 of the Indian Penal Code, 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 authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. 16. Considering the fact of the present case and the ratio as laid down above, the filing of the charge-sheet against the applicant herein under the provisions of MMDR Act is not maintainable in view of 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. It is also open for the applicant herein to take all the contentions as are taken in the present application, before the concerned Court. The observations that are made by this Court are for the purpose of arriving at the aforesaid conclusion. The concerned Court shall decide the Criminal Case No. 1566 of 2014, independently, taking into consideration all the contentions that may be taken by the learned advocates appearing for the respective parties. 17. In view of above, the present application is partly allowed with the direction that the complaint/FIR being I-C.R. No.12 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.1566 of 2014 pending before the Chief Metropolitan Magistrate, Vyara, 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 Indian Penal Code as invoked by the respondent authority by way of filing the complaint/FIR being I-C.R.No.12 of 2014 and Criminal Case No.1566 of 2014. 18. Accordingly, the present application stands partly allowed. Rule is made absolute to the aforesaid extent.