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Karnataka High Court · body

2025 DIGILAW 663 (KAR)

Rajkumar S/o Shankar Khajuri v. State

2025-06-30

S.RACHAIAH

body2025
ORDER : S RACHAIAH, J. 1. These two petitions are arising out of the same judgment of conviction and its confirmation order passed by the Appellate Court. 2. Accused Nos.8 and 12 are the petitioners in Crl.R.P No.200098/2020 and accused Nos.6, 10, 11, 13 and 14 are the petitioners in Crl.R.P No.200099/2020. Factual matrix of the case 3. On 24.02.2013 at about 3.00 p.m., the complainant received an information that sand was being transported illegally by the accused in lorries and the tractors. On receiving the said information, the complainant went to the spot along with his staff and panch witnesses. He intercepted the lorries and enquired the drivers to show the permit to transport the sand. In the meantime, he also learnt that two more lorries and one tractor were there in the riverbed and they were also filling the sand to the lorries and tractors. Immediately, he instructed the officials to take appropriate steps. 4. The complainant after having arrested the accused and also seized the lorries along with sand, registered a case before the respondent police. The respondent - police after registering the case, conducted the investigation and submitted the charge sheet for the offences punishable under Sections 379 , 420 r/w 149 of Indian Penal Code (for short ‘ IPC ’) and under Section 21 (1) of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘MMDR Act’). 5. In order to prove the case, the prosecution examined six witnesses as P.W.1 to P.W.6 and also got marked 74 documents as Ex.P1 to P.74. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction for the offence under Section 379 of IPC and acquitted for other offences. Being aggrieved by the said judgment, the petitioners have approached the Appellate Court by filing an appeal. The Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the petitioners have approached this Court by filing the revision petitions. 6. Heard Sri.Rajesh Doddamani, learned counsel for the petitioners and Sri.Jamedar Shahabuddin, learned High Court Government Pleader for the respondent - State in both the petitions. 7. The Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the petitioners have approached this Court by filing the revision petitions. 6. Heard Sri.Rajesh Doddamani, learned counsel for the petitioners and Sri.Jamedar Shahabuddin, learned High Court Government Pleader for the respondent - State in both the petitions. 7. It is the submission of the learned counsel for the petitioners that the judgment of conviction and order on sentence passed by the Trial Court and also its confirmation order passed by the Appellate Court is contrary to the facts and law on record. Therefore, the same is liable to be set aside. 8. It is further submitted that the order of taking cognizance by the Special Court in respect of the offence under Section 21 (1) of the MMDR Act is contrary to the Act. As per the provisions under Section 30 (B) of the said Act, the Special Court has jurisdiction to take cognizance for the said offences. Moreover, Section 22 of the Act specifies that, no Court shall take cognizance of any offence, which is contrary to the provisions of the Act except under the written complaint filed by the Authorised Officer. Such being the fact, the Trial Court committed error in taking cognizance of all the offences and passed the impugned judgment, which is liable to be set aside. Making such submissions, the learned counsel for the petitioners prays to allow the petitions. 9. Per contra, the learned High Court Government Pleader for the respondent - State justified the concurrent findings of the Courts below and he further submitted that the Trial Court has rightly recorded the conviction on the basis of the charge sheet submitted by the respondent - police for the above said offences. The Trial Court has not recorded the conviction in respect of offence under Section 21 (1) of the MMDR Act, as it has no jurisdiction. However, the Trial Court is at liberty to proceed with the offences relating to Indian Penal Code. Hence, the judgment of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court is proper and appropriate. Therefore, interference with the said findings may not be proper. Making such submission, the learned HCGP for the respondent – State prays to dismiss the petitions. 10. Hence, the judgment of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court is proper and appropriate. Therefore, interference with the said findings may not be proper. Making such submission, the learned HCGP for the respondent – State prays to dismiss the petitions. 10. Having heard the learned counsel for the respective parties and also perused the findings of the Courts below in recording the conviction, it is appropriate at this stage, to refer the provisions under Section 22 and Section 30 (B) of the MMDR Act, which reads as under: “ Section 22 - Cognizance of offences .- 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 authorised in this behalf by the Central Government or the State Government.” [30-B. Constitution of Special Courts . - (1) The State Government may, for the purposes of providing speedy trial of offences for contravention of the provisions of sub-section (1) or sub-section (1-A) of section 4, constitute, by notification, as many Special Courts as may be necessary for such area or areas, as may be specified in the notification. (2) A Special Court shall consist of a Judge who shall be appointed by the State Government with the concurrence of the High Court. (3) A person shall not be qualified for appointment as a judge of a Special Court unless he is or has been a District and Sessions Judge. (4) Any person aggrieved by the order of the Special Court may prefer an appeal to the High Court within a period of sixty days from the date of such order.” 11. On reading the above said provisions conjointly, it appears that the offences relating to the MMDR Act has to be dealt with by the Special Court. Cognizance in respect to the MMDR Act also to be taken by the Special Court. 12. In the present case, the Investigation Officer ought not to have filed the charge sheet in respect of the offence under Section 21 (1) of MMDR Act. However, the charge sheet has been filed, which is contrary to the provisions under Section 22 of the MMDR Act. 13. 12. In the present case, the Investigation Officer ought not to have filed the charge sheet in respect of the offence under Section 21 (1) of MMDR Act. However, the charge sheet has been filed, which is contrary to the provisions under Section 22 of the MMDR Act. 13. On perusal of findings of the Trial Court and the Appellate Court, it appears that though the Trial Court has taken cognizance under MMDR Act, the conviction has not been recorded in respect of the said offence, however, proceeded to record the conviction for the offence under Section 379 of IPC . 14. In this context, it is relevant to refer the judgment of the Hon'ble Supreme Court in the case of STATE (NCT OF DELHI) vs. SANJAY , [ (2014) 9 SCC 772 ] . Paragraph Nos.72 and 73, which reads as under: “72. From a close reading of the provisions of the 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, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. 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 persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure. 73. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the Act vis-à-vis the Code of Criminal Procedure and the 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 riverbeds without consent, which is the property of the State, is a distinct offence under IPC . Hence, for the commission of offence under Section 378 IPC , 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. 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 Magistrates concerned to proceed accordingly.” 15. On careful reading of the dictum of the Hon'ble Supreme Court, the provisions of the MMDR Act and offence defined under Section 378 of IPC , it is manifest that the ingredients constituting the offence are different. 16. In the present case, the petitioners being the drivers of different lorries were transporting the sand without having any valid permit and also with a dishonest intention to remove the sand from the riverbed. The evidence of all the witnesses would indicate that the petitioners have committed the offence of theft of sand. Hence, the findings of the Trial Court in recording the conviction for the offence under Section 379 of IPC and its confirmation order passed by the Appellate Court are just and proper. There is no occasion for this Court to interfere with the said findings. However, the learned counsel for the petitioners submitted that the petitioners are the earning members of the family. There are no criminal antecedents against these petitioners. Leniency may be shown by considering the nature and gravity of the offences. 17. There is no occasion for this Court to interfere with the said findings. However, the learned counsel for the petitioners submitted that the petitioners are the earning members of the family. There are no criminal antecedents against these petitioners. Leniency may be shown by considering the nature and gravity of the offences. 17. Having considered the said submissions and also the nature and gravity of the offences, I am of the considered opinion that imposing a fine would be appropriate instead of sentencing them for imprisonment. 18. Hence, I proceed to pass the following: ORDER i) The petitions are allowed in part. ii) The judgment of conviction and order on sentence dated 12.09.2018 passed in C.C No.62/2014 by J.M.F.C, Afzalpur and judgment and order dated 29.09.2020 passed in Crl.A No.55/2018 by the III Additional District and Sessions Judge, Kalaburagi, are set aside and modified. iii) The petitioners are sentenced to pay a fine of Rs.10,000/- each for offence under Section 379 of IPC . In default of payment of fine, the petitioners shall undergo simple imprisonment for one year each. iv) The Registry is directed to transmit the record to the Trial Court to execute the order in accordance with law.