Partly allowed

Pundalik v. the State of Karnataka

Karnataka HC15 Sept 2018CRL.P/101691/2018

Case brief

AI extract

What is this about?

In connected criminal petitions under Article 226/Section 482 CrPC, the High Court held that police lack jurisdiction to register FIRs for offences under the MMDR Act and Mining Rules. Such complaints must be filed directly before a Magistrate by authorised officers. The Court quashed FIRs relating to these specific offences while reserving liberty for the Government to proceed under IPC for theft

What did the court decide?

Quashed FIRs and consequential proceedings relating to offences under the MMDR Act and Rules; liberty reserved for Government to proceed under IPC.

Pundalik Vs the State of Karnataka — Property and Title | 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 15^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.101585 OF 2018

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C/w.

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CRIMINAL PETITION No.101599 OF 2018 CRIMINAL PETITION No.101682 OF 2018 CRIMINAL PETITION No.101690 OF 2018 CRIMINAL PETITION No.101691 OF 2018 CRIMINAL PETITION No.101703 OF 2018

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IN Crl.P. No.101585/2018:

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BETWEEN:

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PANCHAPPA S/O DANDAPPA DODAMANI AGE: 22 YEARS, OCC: DRIVER, KA-24 M-2117, R/O: GANDI NAGAR, MUNAVALLI, TQ: SAVADATTI, DIST: BELAGAVI.

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KUMAR S/O FAKIRAPPA SOORANNAVAR AGE: 32 YEARS, OCC: AGRICULTURE/DRIVER, KA-24 TA-3220, R/O: JIDDI ONI, MUNAVALLI, TQ: SAVADATTI, DIST: BELAGAVI.

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SALIM KUTUBUDDIN @ SALIM MALIK KONDANNAVAR AGE: 27 YEARS,

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: 2 : Crl. P No.101585/2018 & Connected cases

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OCC: AGRICULTURE, R/O: NIRMAL NAGAR, TQ: SAVADATTI, DIST: BELAGAVI.

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KUTUBUDDIN ALISAB KHONDUNAIK AGE: 44 YEARS, OCC: AGRICULTURE, OWNER OF KA-24 M-2117, R/O: NIRMAL NAGAR, MUNAVALLI, TQ: SAVADATTI, DIST: BELAGAVI.

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SHIVAPPA BASAPPA BAJAPPAGOL AGE: 46 YEARS, OCC: AGRICULTURE/OWNER/DRIVER, KA-24 TA-3220 & KA-24 E 9854, R/O: BAZAR ROAD, MUNAVALLI, TQ: SAVADATTI, DIST: BELAGAVI. ... PETITIONERS (BY SRI. SRINIVAS B. NAIK, ADV.) AND

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THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, THROUGH SAUNDATTI PS, DISTRICT BELAGAVI. ... RESPONDENT

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(BY SRI PRAVEEN K. UPPAR, HCGP)

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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.210/2018 OF SAUNDATTI POLICE STATION REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF IPC AND UNDER SECTION 4(1), 4(1A), 21, 22 OF MMRD ACT, 1957, SO FAR THIS PETITIONERS ARE CONCERNED.

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: 3 :

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Crl. P No.101585/2018 & Connected cases

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IN Crl.P. No.101599/2018:

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BETWEEN:

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YALLAPPA S/O NIMBOJAPPA NANNAPPAVAR AGE: 48 YEARS, OCC: DRIVER, R/O: GARAG, TQ & DIST: DHARWAD.

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BHIMAPPA S/O NAGAPPA SOGALAD AGE: 45 YEARS, OCC: OWNER OF LORRY TIPPER NO.KA-25 AA-9295, R/O: HANGARAKI, TQ & DIST: DHARWAD.

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PANDU S/O MADIGEPPA KALARI AGE: 25 YEARS,OCC: DRIVER, R/O: RANKALAKOPPA, TQ: RAMADURG, DIST: BELAGAVI.

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PRAKASH S/O BHIMAPPA MORABAD AGE: 40 YEARS, OCC: OWNER OF TRACTOR TAILOR BEARING NO.KA-49 T-6662, R/O BANNUR, TQ: RAMADURG, DIST: BELAGAVI.

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... PETITIONERS

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(BY SRI. K S PATIL, ADV.)

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AND

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THE STATE OF KARNATAKA THROUGH RAMADURG P.S., REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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... RESPONDENT

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(BY SRI. PRAVEEN K.UPPAR, HCGP)

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: 4 : Crl. P No.101585/2018 & Connected cases

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN RAMADURG PS.CR.NO.160/2018 REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 379 OF IPC U/S.4(1), 4(1A) R/W 21 OF MMRD ACT 1957 AND UNDER SECTION 3, 32, 44 KMMC RULE 1994 PENDING ON THE FILE OF SENIOR CIVIL JUDGE & JMFC, RAMDURG, AT RAMDURG, VIDE ANNEXURE-H, AGAINST PETITIONERS.

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IN Crl.P. No.101682/2018:

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BETWEEN:

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SRI. RAGHAVENDRA MAHABALESHWAR SHINDHE AGE: 22 YEARS, OCC: DRIVER R/O. GODHOLI VILLAGE TAL: KHANAPUR, DIST: BELAGAVI. ... PETITIONER (BY SMT. MUSARRAT M. SAITH, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA THROUGH NANDAGAD POLICE STATION BELGAVI DISTRICT NOW REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD.

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... RESPONDENT (By Sri. PRAVEEN K.UPPAR, HCGP)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., SEEKING TO QUASH THE FIR CRIME NO.99/2018 DATED 30.03.2018 REGISTERED BY NANDAGAD P.S., KHANAPUR CIRCLE, BELAGAVI, FOR OFFENCE U/S. 379 OF IPC AND U/S. 21, 22 OF MMRD (MINES AND MINERALS REGULATION OF DEVELOPMENT) ACT, 1957 AND U/S. 3, 32, 42, 44 OF KMMC RULES (KARNATAKA MINOR MINERALS

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Crl. P No.101585/2018 & Connected cases

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: 5 :

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CONSISTENT RULE) 1994, INSOFAR AS PETITIONER HEREIN IS CONCERNED.

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IN Crl.P. No.101690/2018:

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BETWEEN:

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YELLAPPA S/O FAKEERAPPA KANDALI AGE.25 YEARS OCC. OWNER AND DRIVER R/O TEGGIHAL VILLAGE TQ. SAUNDATTI DISTRICT. BELAGAVI

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... PETITIONER

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(BY SRI. SRINIVAS B NAIK, ADV.)

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AND:

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THE STATE OF KARNATAKA REP BY STATE PUBLIC PROSECUTOR THROUGH BAILHONGAL PS DISTRICT BELAGAVI.

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... RESPONDENT

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(BY SRI. PRAVEEN K.UPPAR, HCGP)

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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.104/2018 OF BAILHONGAL POLICE STATION REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF IPC AND UNDER SECTION 21 & 22 OF MMDER ACT, 1957.

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IN Crl.P. No.101691/2018:

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BETWEEN:

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PUNDALIK S/O MUDAKAPPA BOVI AGE.24 YEARS OCC. DRIVER R/O SHIRASANGI

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: 6 : Crl. P No.101585/2018 & Connected cases

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TQ. SAUNDATTI DISTRICT. BELAGAVI

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MABUSUBANI @ HUSENI @ SUBANI S/O DILAVARSAB VATANAL AGE.25 YEARS OCC. DRIVER R/O BAHNDRAHALLI TQ. SAUNDATTI DSITRICT. BELAGAVI 3. HANAMANT @ HANAMAPPA S/O MARUTI BADEMMANNAVAR AGE.3E YEARS OCC. OWNER, R/O SHIRSANGI, TQ. SAUNDATTI, DISTRICT. BELAGAVI (BY SRI. SRINIVAS B NAIK, ADV.)

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... PETITIONERS

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AND:

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THE STATE OF KARNATAKA REP BY STATE PUBLIC PROSECUTOR THROUGH SAUNDATTI PS DISTRICT BELAGAVI.

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... RESPONDENT

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(BY SRI. PRAVEEN K.UPPAR, HCGP)

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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.98/2018 OF SAUNDATTI POLICE REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTION 379 OF IPC AND UNDER SECTION 4(1), 4(1A), 21 OF MMDR ACT, 1957, SO FAR THIS PETITIONER IS CONCERNED.

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IN Crl.P. No.101703/2018:

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BETWEEN:

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SIDDAPPA S/O FAKEERAPPA MALAGI

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: 7 : Crl. P No.101585/2018 & Connected cases

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AGE: 21 YEARS, OCC: AGRICULTURE, R/O: GORABAL VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI.

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KAREPPA S/O UDACHAPPA CHIKKUMMI AGE: 25 YEARS, OCC: AGRICULTURE, R/O: GORABAL VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI.

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ARJUN S/O FAKEERAPPA CHIKKUMMI AGE: 19 YEARS, OCC: AGRICULTURE, R/O: GORABAL VILLAGE, TQ: SAUNDATTI, DIST: BELAGAVI. ... PETITIONERS

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(BY SRI. SRINIVAS B NAIK, ADV.)

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AND

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THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR, THROUGH SAUNDATTI PS, DIST: BELAGAVI.

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... RESPONDENT

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(BY SRI. PRAVEEN K.UPPAR, HCGP)

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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.225/2018 OF SAUNDATTI POLICE STATION REGISTERED FOR THE OFFENCE PUNISHABLE U/SEC.379 OF IPC AND UNDER SECTION 4(1), 4(1A), 21 AND 22 OF MMDR ACT, 1957, SO FAR THIS PETITIONER IS CONCERNED.

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These Petitions coming on for Admission , this day the Court made the following:

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: 8 : Crl. P No.101585/2018 & Connected cases

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O R D E R

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Sri.Praveen K.Uppar learned HCGP accepts notice for the respondent. With consent of both parties, the matters are taken up for final disposal.

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Though, all these cases arise out of different Crime numbers of different police stations and pending before different Courts, since issue involved in the cases is only question of law and the same is common in all these cases, they are taken up together for disposal by this common order.

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The respondent police in all these cases registered criminal cases against the respective petitioners generally for the offences punishable under Sections 4, 4(1A), 21, 42 read with Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘MMDR Act’) and under Rules 3, 32 and 44 of the Karnataka Minor Mineral Concessions Rules, 1994 (for short ‘Rules’) and Section 379 of the Indian Penal Code, 1860 (for

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: 9 : Crl. P No.101585/2018 & Connected cases

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short ‘IPC’), etc. For the purpose of brevity and convenience, the particulars of the Crime number, police station, name of the complainant and his designation are set out in the tabular column below:

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Sl. No.	Case Number	Crime Number	Police Station	Complainant’s name and designation
1	Crl.P. No.101585/2018	210 of 2018	Saundatti P.S.	I.M.Matapathi, PSI(L&O)
2	Crl.P. No.11599/2018	160 of 2018	Ramadurga P.S.	Sunilkumar Naik, PSI
3	Crl.P. No.101682/2018	99 of 2018	Nandagad P.S.	Sanjaykumar Kallur,PSI
4	Crl.P. No.101690/2018	104 of 2018	Bailhongal P.S.	V.S.Teji, PSI (Crime)
5	Crl.P. No.101691/2018	98 of 2018	Saundatti P.S.	A.K.Kamble, PSI
6	Crl.P. No.101703/2018	225 of 2018	Saundatti P.S.	I.M.Matapathi, PSI(L&O)

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In all the above cases, the allegations against the petitioners were that they were illegally extracting / transporting sand-the Government property without valid permit or evading payment of required royalty. The allegations are that thereby they have committed theft of Government property / sand which constitute the offences punishable under Section 379 IPC and Sections 4, 4(1), 4(1A), 21 &

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: 10 : Crl. P No.101585/2018 & Connected cases

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42 read with Section 22 of the MMDR Act and under Rules 3, 32 & 44 of the Rules.

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The learned counsel for the petitioners seek quashing of the aforesaid proceedings on the following grounds:

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(i) As per Section 22 of the MMDR Act, only an officer authorised as per Rule 2(1)(a-1-a) of the Rules shall file complaints;

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(ii) The complainants / informants were not authorised persons to file the complaint.

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(iii) Even authorised officers have to file complaint before the Magistrate and not before the Station House Officer of the police station;

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(iv) The police are not competent to receive such complaints and take up investigation on such complaints.

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: 11 : Crl. P No.101585/2018 & Connected cases

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Sri.Praveen K.uppar, learned HCGP

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submits that the police are competent to file the report and on such reports register FIR when the complaints is for the offences punishable under IPC.

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Therefore, the question involved in all the above cases is whether a complaint for violation of the provisions of MMDR Act can be filed before the Station House Officer of a police station and on such complaint whether the respondent police could register the FIR and take up the investigation?

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Section 22 of the MMDR Act reads as

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under:

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“22. Cognizance of offences .―No

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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.”

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: 12 : Crl. P No.101585/2018 & Connected cases

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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 Rules defines the authorised officer as follows:

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“2(1) (a-1-a) “Authorised Officer”

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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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The perusal of the above provisions make it clear that the Court is barred from taking cognizance of the offences under the MMDR Act or

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: 13 : Crl. P No.101585/2018 & Connected cases

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the Rules made thereunder unless the complaint in writing is made by the persons authorised under Rule 2(1)(a-1-a) of the Rules. Since Section 2(d) of Cr.P.C. excludes the police report from the definition of complaint essentially the complaint has to be filed before the Magistrate.

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In these cases, complainants have not stated in their complaints that they are the persons authorised under Rule 2(1)(a-1-a) of the Rules to file complaint. The complaints are not accompanied by any such authorization notifications. Even assuming that they are so authorised, the complaint in respect of the offences under the MMDR Act and Rules ought to have been filed before the Magistrate and not before the Station House Officer of the police station.

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Hon’ble Supreme Court in paragraphs 72 & 73 of the judgment in State (NCT of Delhi) Vs.

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: 14 :

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Crl. P No.101585/2018 & Connected cases

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Sanjay, (2014) 9 SCC 772 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 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

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: 15 :

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Crl. P No.101585/2018 & Connected cases

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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-àvis 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 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

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Crl. P No.101585/2018 & Connected cases

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: 16 :

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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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A reading of the above judgment makes it clear that the police are not competent to register the FIR for the offences punishable under MMDR Act or the Rules, but they are not barred from registering the FIR for the offences punishable under IPC. Therefore, the FIR and consequential Criminal proceedings pending before the Magistrate in the above cases so far they relate to the offences under MMDR Act and Rules are liable to be quashed. Therefore, the petitions are partly allowed.

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: 17 : Crl. P No.101585/2018 & Connected cases

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The first information report and other

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consequential proceedings in the below mentioned cases so far they relate to the offences punishable under the MMDR Act and the Rules are hereby quashed:

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Crime Number	Police Station
210 of 2018	Saundatti P.S.
160 of 2018	Ramadurga P.S.
99 of 2018	Nandagad P.S.
104 of 2018	Bailhongal P.S.
98 of 2018	Saundatti P.S.
225 of 2018	Saundatti P.S.

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Liberty is reserved to the Government to proceed with regard to the offences under the MMDR Act & the KMMC Rules in the aforesaid cases in accordance with law.

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SD/JUDGE

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VMB/GAB/RK/-

Pundalik v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Pundalik v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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