Partly allowed

Sri. Nanaso @ Nanisha S/O Nemanna Chougale v. the State of Karnataka

Karnataka HC5 Sept 2018CRL.P/101653/2018

Case brief

AI extract

What is this about?

In this writ petition under Section 482 Cr.P.C., the High Court examined the validity of an FIR registered under Sections 4(1A), 21, 22 of the MMDR Act and Section 379 IPC based on a police complaint. Relying on State v. Sanjay, the court held that police powers under Cr.P.C. for theft of minerals remain distinct from MMDR cognizance restrictions. Consequently, the petition was partly allowed to q

What did the court decide?

The FIR was quashed solely insofar as it related to offences punishable under Sections 4(1A), 21, and 22 of the MMDR Act.

Sri. Nanaso @ Nanisha S/O Nemanna Chougale Vs… — Mining and Natural Resources | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF SEPTEMBER 2018

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BEFORE

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THE HON’BLE MRS.JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION NO.101653 OF 2018

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BETWEEN:

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SRI. NANASO @ NANISHA S/O NEMANNA CHOUGALE, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: DATTAWAD VILLAGE, TQ: SHIROL, DIST: KOLHAPUR, STATE MAHARASHTRA.

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SMT.SONABAI W/O BABAGOUDA PATIL, AGE: 69 YEARS, OCC: HOUSEHOLD WORK, R/O: DANWAD VILLAGE, TQ: SHIROL, DIST: KOLHAPUR, STATE MAHARASHTRA.

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SMT.MALAN W/O SHIVAJIRAO GHORAPADE, AGE: 67 YEARS, OCC: AGRICULTURE, R/O: DATTAWAD VILLAGE, TQ: SHIROL, DIST: KOLHAPUR, STATE MAHARASHTRA.

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... PETITIONERS

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(BY SRI.SRINAND A PACHCHAPURE, ADVOCATE)

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AND

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THE STATE OF KARNATAKA THROUGH SADALAGA POLICE STATION, NOW REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH AT DHARWAD. ... RESPONDENT

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(BY SRI.PRAVEEN K.UPPAR, HCGP)

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CRL.P.NO.101653/18

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: 2 :

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO QUASH THE FIR AND COMPLAINT IN CRIME NO.166 OF 2018 REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 4(1A), 21 & 22 OF MMRD ACT AND SECTION 379 OF IPC BY THE SADALAGA POLICE MARKED AT ANNEXURE-A AND B RESPECTIVELY AND GRANT ANY OTHER RELIEF AS DEEMED FIT IN SO FAR PETITIONERS CONCERNED.

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:-

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O R D E R

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Whether Police could register FIR on the basis of complaint of PSI Sadalaga in respect of offence punishable under Section 21 of MMDR Act and investigate into such complaint, is the question involved in this case .

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Sadalaga Police have registered Crime No.166 of 2018 for the offence punishable under Sections 4(1A), 21 and 22 of the Mines and Minerals (Development and Regulation) Act, 1957 [for short ‘MMDR Act’] and Section 379 of the Indian Penal Code, 1860 [for short ‘IPC’] on the basis of complaint/report of Mr.M.B.Biradar, Police Sub-

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: 3 : CRL.P.NO.101653/18

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Inspector, Sadalaga Police Station, Chikodi Taluka, Belagavi District against the drivers of the JCB and tractor trailers bearing register Nos.KA-22/M-9000 and MH-09/CJ-4810 respectively.

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It is alleged that on the basis of credible information of some persons illegally extracting sand with the help of JCB and loading the same into tractor-trailer, complainant and his staff on 10.03.2018 at 5.00 a.m. intercepted one JCB bearing registration No.KA-22/M-9000 and tractor bearing registration No.MH-09/CJ-4810 towed to an unnumbered trailer and another unnumbered tractor trailer on the Belagavi-Anigol Main Road, near Mrutyunjay Cross, Belagavi. The said Truck was allegedly found transporting sand worth Rs.18,000/. They were allegedly seized under Mahazar.

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The complainant submitted a report to the SHO, Tilakwadi Police station, on the basis of which, the SHO registered FIR in Crime No.28 of 2018 as aforesaid.

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: 4 : CRL.P.NO.101653/18

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Sri.Srinand A.Pachchapure, learned counsel for the petitioners relying on Section 22 of the MMDR Act and the judgment of the Hon’ble Supreme Court in State (NCT of Delhi) Vs. Sanjay, (2014) 9 SCC 772 and of this Court in Criminal Petition No.100248 of 2018, disposed of on 06.04.2018 submits that First Information Report registered by the respondent police is unsustainable.

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Sri.Praveen K.Uppar, learned HCGP submits that what is barred under Section 22 of the MMDR Act is taking cognizance of the offence punishable under MMDR Act and not under the provisions of Indian Penal Code. Therefore, the entire FIR does not warrant quashing.

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Section 22 of the MMDR Act reads as under:

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“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

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: 5 :

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CRL.P.NO.101653/18

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in this behalf by the Central Government or the State Government.”

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Complaint is defined in Section 2(d) of the Code of Criminal Procedure, 1973 [for short

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‘Cr.P.C.’] as follows:

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“2. Definitions .—In this Code, unless the context otherwise requires.—

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(d) “ Complaint ” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence but does not include a police report .”

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Rule 2(1)(a-1-a) of the KMMC Rules defines the authorised officer as follows:

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“2(1) (a-1-a) “Authorised Officer” means an officer not below the rank of Group B authorized by the State Government or the Commissioner or the Director of Mines and Geology or Deputy Commissioner of the District to act for the specific purpose under these Rules.”

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CRL.P.NO.101653/18

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: 6 :

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As per Section 2(d) of Cr.P.C., complaint

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excludes the report of the police officer. The officer authorised under Rule 2(1)(a-1-a) of the KMMC Rules has to file a complaint before the Magistrate Still, as rightly pointed out by the learned HCGP, the whole FIR does not become incompetent.

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Hon’ble Supreme Court in paragraphs 72 & 73 of the judgment in State (NCT of Delhi)’s case referred to supra , in this regard has held as follows:

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“72. 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, gravel 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. Hence, merely because initiation of

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CRL.P.NO.101653/18

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: 7 :

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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 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.

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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

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: 8 : CRL.P.NO.101653/18

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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 concerned Magistrates to proceed accordingly.”

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(Emphasis supplied)

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Thus, it is clear that the police are

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competent to register the case for the offence punishable under Section 379 IPC. The FIR needs to be quashed only with regard to the offences punishable under Sections 4(1A), 21 & 22 of the MMDR Act.

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CRL.P.NO.101653/18

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: 9 :

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Therefore, the petition is partly allowed. The FIR in Crime No.166 of 2018 of Sadalaga Police Station so far it relates to offences punishable under Sections 4(1A), 21 and 22 of the MMDR Act is hereby quashed.

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In respect of the offences for which FIR is quashed, liberty is reserved to the Government to proceed in compliance with Section 22 of the MMDR Act and in the light of the observations made above.

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Sd/JUDGE

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Ckk/-

Sri. Nanaso @ Nanisha S/O Nemanna Chougale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. Nanaso @ Nanisha S/O Nemanna Chougale v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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