Dnyaneshwar Khandu Khandagale and Another v. the State of Maharashtra and Another

Bombay HC28 Nov 2016APPLN/1079/2014

Case brief

AI extract

What is this about?

The High Court considered a Criminal Application seeking quashing of an FIR alleging offences under Section 379 IPC and the Mines and Minerals Act. Noting discrepancies in the time and location of the alleged theft and an ongoing investigation, the Court distinguished a cited precedent. The Court was of the prima facie opinion that offence ingredients were attracted and rejected the application to

What did the court decide?

The Criminal Application for quashing the FIR stands rejected, allowing the investigation to proceed.

Dnyaneshwar Khandu Khandagale and Another Vs the… — Mining and Natural Resources | Bombay HC (2016)

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1079.2014Cri.Appln..odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.1079 OF 2014

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1. Dnyaneshwar s/o Khandu Khandagale Age: 34 years, Occu: Agril., R/o. Yesgaon, Taluka Khultabad, District : Aurangabad.

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2. Sachin s/o Dattu Devkar, Age : 30 years, Occu: Agril., R/o. Vadod [Kahnoba], Taluka Khultabad, Dist. Aurangabad. APPLICANTS

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VERSUS

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1. The State of Maharashtra Through Police Station Khultabad, Dist. Aurangabad.

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2. Shivaji s/o. Motiram Chape Age 49 years, Occu: Service, Police Constable B.No.115, Police Station, Khultabad, District : Aurangabad RESONDENTS

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...

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Mr.G.D.Kale, Advocate for the applicants
Mr.S.N.Late, Advocate for respondent no.2
Mr.S.Y.Mahajan, Addl.P.P. for Respondent –
State

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...

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 K.K.SONAWANE,JJ.

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Date: 28.11.2016

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1079.2014Cri.Appln..odt

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PER COURT:

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1.This Criminal Application is filed
under Section 482 of the Criminal Procedure
Code, praying therein for quashing the First
InformationReportdated01.01.2014,

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registered at Police Station Khultabad,
District Aurangabad, vide Crime No.I-02/2014,

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for the offences under Section 379 of the
Indian Penal Code and Sections 21 (1) (2) (3)
(4) and (5) of the Mines and Minerals Act.

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2.The learned counsel appearing for

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the applicants invites our attention to the

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contents of the FIR and submits that even if

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the allegations in the FIR are taken on its

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face value and read in its entirety, the
ingredients of the alleged offences are not
attracted. He further submits that in fact

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the Police Officer is not competent to lodge

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the FIR under the provisions of the Mines and
Minerals [Development and Regulation] Act,

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1079.2014Cri.Appln..odt

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1957 [for short ‘the said Act’]. The Mines
and Minerals [Development and Regulation] Act
is a self-contained Code and Section 22 of
the said Act provides for procedure for
taking cognizance of the offence. He further
submits that the competent authority granted
permission on 01.01.2014 for extracting
minerals. He further submits that even the
Talathi has prepared panchanama. He invites
our attention to the judgment of the Bench
presided over by the learned Single Judge in
the case of Shaikh Yunus s/o. Shaikh Chand
and another Vs. State of Maharashtra in
Criminal Application No. 5348/2012 decided on
13th December, 2013 and submits that, as
contemplated under Section 22 of the said Act
only the competent authority under the said
Act can take cognizance and file complaint
before the Court.

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3.The learned APP appearing for the
respondent – State relying upon the

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1079.2014Cri.Appln..odt

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investigation paper submits that the time of
the alleged offence is at 6.30 a.m. on
01.01.2014. The permission obtained by the
applicants to excavate mud is during the
office hours on 01.01.2014. However, as per

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the allegations in the FIR, the alleged

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offence was committed at 6.30 a.m. on the

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said date. It is transpired during the
investigation that, the Gat number mentioned

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in the letter issued by the Tahsildar

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permitting the applicants to excavate mud,
addressed to the applicants makes mention of
Gat No.77. However, the minerals are
extracted from some other land.

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4.The learned counsel appearing for
respondent no.2 submits that the allegations
in the FIR needs further investigation of the
offence under the provisions of the said Act
and also under Section 379 of the Indian

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Penal Code, the offences are disclosed.

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1079.2014Cri.Appln..odt

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5. We have given careful consideration to the submissions of the learned counsel appearing for the parties. With their able assistance, perused the contents of the FIR and also other documents placed on record. We do not wish to comment upon the documents placed on record by the applicants since the investigation is in progress. It appears, prima facie , that the permission granted to the applicants to excavate the mud is on

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01.01.2014 during the working hours of tahsil
office. However, in the FIR time of alleged
offence is mentioned at 6.30 a.m. on

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01.01.2014. There is also considerable force

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in the argument of the learned APP appearing
for the respondent – State that, the

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permission was granted to excavate the mud
from the land situate in Gat No.70, but the
land from which actually mud is extracted by
the applicants is different.

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6.The decision relied upon by the

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1079.2014Cri.Appln..odt

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learned counsel appearing for the applicants in the case of Shaikh Yunus Shaikh Chand

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[cited supra], cannot be made applicable in the facts of the present case inasmuch as the investigation in the present case is in progress. However, in the cited case already charge-sheet was filed and the case was pending before the Court of competent jurisdiction. There are allegations of theft

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in the FIR, which would attract the ingredients of Section 379 of the IPC. Therefore, we do not see any reason to interfere in the investigation. We are of the prima facie opinion that, the ingredients of the alleged offences have been attracted, and therefore, the FIR needs further

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investigation. Hence the Application stands
rejected.

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7.However, we make it clear that

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rejection of an application may not be
construed as an impediment to the applicants,

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1079.2014Cri.Appln..odt

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in case they wish to avail remedy of taking
exception to the charge-sheet in event of
filing of the same by the Investigation
Officer, or to avail remedy of filing of
application for discharge before the court of
competent jurisdiction.

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 [K.K.SONAWANE] [S.S.SHINDE]
 JUDGE JUDGE

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DDC

Dnyaneshwar Khandu Khandagale and Another v. the State of Maharashtra and Another

Case brief

What is this about?

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Dnyaneshwar Khandu Khandagale and Another v. the State of Maharashtra and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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