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2022 DIGILAW 1595 (GUJ)

Bipinbhai Gurjibhai Gamit v. State Of Gujarat

2022-11-16

VAIBHAVI D.NANAVATI

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ORDER : 1. Heard Mr. P. P. Majmudar, the learned advocate appearing for the writ-applicant and Ms. Maithili Mehta, the learned APP appearing for the respondent No.1 – State. 2. The writ-applicant herein has approached this Court by preferring Special Criminal Application No.2665 of 2019 being aggrieved and dissatisfied by the impugned complaint being FIR-I-C.R.No.4 of 2018 dated 1.8.2018 registered with Tapi A.C.B. Police Station, Dist. Tapi filed under the Prevention of Corruption Act, 1988 for the offences punishable under Sections 13(i)(d)(2) and 13(2) of the said Act as also under Sections 379, 120B and 114 of the Indian Penal Code read with Sections 4(i), 4(i)(a) and Section 21 of the Mines and Minerals (Development and Regulations) Act, 1957 and the Special Criminal Application No.96 of 2019 being aggrieved and dissatisfied by the impugned complaint being FIR-IC. R.No.78 of 2018 dated 21.8.2018 registered with Songadh Police Station for the offences punishable under Sections 379, 120B and 114 of the Indian Penal Code and under Sections 4(i), 4(i)(a) and Section 21 of the Mines and Minerals (Development and Regulations) Act, 1957, wherein the the writ-applicant is are arraigned as accused No.4. 3. The facts involved in both the FIRs i.e. FIR-I-C.R.No.4 of 2018 dated 1.8.2018 registered with Tapi A.C.B. Police Station, Dist. Tapi and FIR-I-C.R.No.78 of 2018 dated 21.8.2018 registered with Songadh Police Station being identical in nature which read thus :- 3.1 It is the case of the writ-applicant that the writ-applicant herein has not committed the offence in question and the writ-applicant is wrongly arraigned as accused in the impugned FIRs. The writ-applicant herein is in the business of excavation of ordinary sand in tune with the provisions of the Mines and Minerals (Development and Regulations) Act, 1957 (for short “MMDR Act”) and applicable Rules. The writ-applicant was granted lease for excavation of ordinary sand on 27.7.2006 and since then he is doing excavation activity absolutely in consonance with the provisions of the MMDR Act. The lease of the writ-applicants is in operation and that the same is under deemed extension. 3.2 It is further stated that in the FIR in question it is alleged that the writ-applicant being lease holder has indulged into theft and/or connived with other co-accused by providing royalty passes of the lease situated at Kanja. The lease of the writ-applicants is in operation and that the same is under deemed extension. 3.2 It is further stated that in the FIR in question it is alleged that the writ-applicant being lease holder has indulged into theft and/or connived with other co-accused by providing royalty passes of the lease situated at Kanja. 3.3 The allegation is that the illegal excavation was going on in Village : Ghasiyamera and the writ-applicant was providing royalty passes to the persons who were illegally excavating at Village : Ghasiyamera so that illegal excavated minerals can be then transported in view of the royalty passes issued by the writ-applicants. 3.4 It is further stated that as per the provisions contained in the MMDR Act read with Rules in view of the conditions attached to the lease agreement, the lease holder is supposed to submit monthly return with respect to excavation of the concerned lease holders. 3.5 It is further stated that the quantity which is alleged in the impugned FIR does not tally at any stretch of imagination with the royalty pass issued by the writ-applicant with respect to the lease at Kanja. 4. Mr. P. P. Majmudar, the learned advocate appearing for the writ-applicant placing reliance on the aforesaid facts submitted that the writ-applicant is wrongly arraigned as accused in the impugned FIR. Mr. Majmudar, the learned advocate submitted that the impugned FIR would not be maintainable against the writ-applicant herein. 4.1 Mr. Majmudar, the learned advocate in view of above submitted that for the aforesaid reason, the writ-applicant could not have been arraigned as an accused for an offence under the Prevention of Corruption Act in the FIR-I-C.R.No.4 of 2018 dated 1.8.2018 registered with Tapi A.C.B. Police Station, Dist. Tapi and, therefore, the said FIR would not be maintainable against the writ-applicant herein. 5. Ms. Maithili Mehta, the learned APP appearing for the respondent No.1 – State was not in position to controvert the submissions made by Mr. Majmudar, the learned advocate appearing for the writ-applicant herein and fairly stated that the impugned complaint invoking the provisions of the Prevention of Corruption Act would not be maintainable qua the writ-applicants herein. Ms. Mehta, learned APP further submitted that certain officers in their official capacity have been arraigned as accused and in view of above the aforesaid provisions are made applicable in the impugned FIR. 6. Ms. Mehta, learned APP further submitted that certain officers in their official capacity have been arraigned as accused and in view of above the aforesaid provisions are made applicable in the impugned FIR. 6. Considering the submissions advanced by the learned advocates appearing for both the sides the impugned FIR being FIR-I-C.R.No.4 of 2018 dated 1.8.2018 registered with Tapi A.C.B. Police Station, Dist. Tapi is held to be not maintainable. 7. The second FIR came to be filed by the respondent authority being FIR-I-C.R.No.78 of 2018 dated 21.8.2018 registered with Songadh Police Station for the self-same reasons, however arraigning the writ-applicant herein for the offences punishable under the Indian Penal Code and MMDR Act. The aforesaid FIR being FIR-I-C.R.No.78 of 2018 culminated into Special Criminal Application No.531 of 2019. 8. Mr. Majmudar, the learned advocate appearing for the writ-applicant submitted that it is well settled law that the impugned FIR being FIR-I-C.R.No.78 of 2018 is not maintainable qua the provisions of the MMDR Act invoked against the writ-applicant herein. 9. Ms. Mehta, the learned APP was not in a position to controvert the well settled legal position of law and fairly stated that the impugned complaint invoking the provisions of the MMDR Act would not be maintainable qua the writ-applicant herein. Ms. Mehta, the learned APP submitted that the impugned FIR which has culminated into the charge-sheet be continued qua the provisions of the Indian Penal Code wherein the writ-applicant herein has been arraigned as accused. 10. At this stage, it is apposite to refer to position of law as laid down by this Court as well as the Hon’ble Apex Court. 10.1 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. 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. 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. 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-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 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.” In view of settled position of law that the ingredients constituting the offence under the MMDR Act and ingredients of dishonestly removing sand and gravel from the river bed without consent which is the property of the State is a distinct offence under the Indian Penal Code, hence the commission of offence under Section 378 of the Criminal Procedure Code, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of the complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act. 11. This Court is inclined to pass the following order:- (a) Considering the fact that writ-applicant being not public servant under the definition of Section 2(c) of the Prevention of Corruption Act, 1988, the aforesaid provisions cannot be invoked against the writ-applicants. The writ-application being Special Criminal Application No.2665 of 2019 is allowed and the FIR being FIR-I-C.R.No.4 of 2018 dated 1.8.2018 registered with Tapi A.C.B. Police Station, Dist. Tapi, is quashed and set aside as being not maintainable against the writ-applicant herein. However, the same be continued qua the rest of the accused. (b) The writ-application being Special Criminal Application No.96 of 2019 is partly allowed. The FIR being FIR-I-C.R.No.78 of 2018 dated 21.8.2018 registered with Songadh Police Station is quashed qua the provisions of Mines and Minerals (Development and Regulations) Act, keeping it open for the respondent authority to take appropriate steps in accordance with the provisions of the MMDR Act. The said FIR is directed to continue qua the offences punishable under the provisions of the Indian Penal Code. (b1) Further in view of the fact that the FIR being FIR-IC. R.No.78 of 2018 dated 21.8.2018 registered with Songadh Police Station has culminated into charge-sheet, it is open for the writ-applicant to avail statutory remedy as available under the law. 12. The aforesaid order is passed in peculiar facts and circumstances and, therefore, the aforesaid order may not be treated as precedent.