Allowed

M/S Adarsh Enterprises, v. State of Karnataka

Karnataka HC12 Sept 2023CRL.P/100509/2023

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a criminal petition filed under Section 482 Cr.P.C. to quash the registration of a Criminal Complaint, FIR, and charge sheet. The Court held that since the offences are non-cognizable, prior permission under Section 155(2) Cr.P.C. was mandatory but not obtained. Furthermore, citing a coordinate bench, the Court ruled that continuation of proceedings was an abuse of

What did the court decide?

The registration of Criminal Complaint No.470/2022, the FIR dated 04.10.2012, and the Charge Sheet dated 14.06.2022 are quashed.

M/S Adarsh Enterprises, Vs State of Karnataka — Mining and Natural Resources | Karnataka HC (2023)

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 12^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 100509 OF 2023

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BETWEEN:

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M/S. ADARSH ENTERPRISES, (A REGD. PARTNERSHIP FIRM), WARD NO.3, KALAMMA ROAD, SANDUR-583119 REP. BY ITS PARTNER, NANASAHEB NIKKAM.

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL

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Date: 2023.09.25 10:54:47 +0530

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SRI. NANASAHEB NIKKAM, S/O. SRI. BABURAO NIKKAM, AGED ABOUT 50 YEARS, M/S. ADARSH ENTERPRISES, WARD NO.3, KALAMMA ROAD, SANDUR-583119.

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SRI. PRAVEENKUMAR NIKKAM, S/O. SRI. GANAPATHIRAO NIKKAM, AGED ABOUT 47 YEARS, M/S. ADARSH ENTERPRISES, WARD NO.3, KALAMMA ROAD, SANDUR-583119.

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… PETITIONERS

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(BY SRI. KARTIK GANACHARI, ADVOCATE)

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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AND:

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STATE OF KARNATAKA, BY RANGE FOREST OFFICER, SANDURU NORTH REGION, SANDUR, REP. BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580011.

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… RESPONDENT

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(BY SRI. V.S. KALASURMATH, HCGP)

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THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C. SEEKING TO QUASH THE ORDER DATED 07.11.2022 IN C.C.NO. 470/2022 IN CRIME NO.17/2012-13 ARISING OUT OF FIR DATED 04.10.2012 IN FOC NO. 17/2012-13 VIDE ANNEXURES A FOR OFFENCES P/U/Ss.24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82B, 109 OF THE KARNATAKA FOREST ACT, 1963 AND KFR (RULE) 144 AND QUASH THE FIR DATED 04.10.2012 IN FOC NO.17/2012-13 VIDE ANNEXURE-B FOR OFFENCES P/U/Ss.24(a) (d) (t) (g) (gg), 73(d), 80, 82 AND 82-B OF THE KARNATAKA FOREST ACT, 1963 AND QUASH THE CHARGE SHEET DATED 14.06.2022 ARISING OUT OF FIR DATED 04.10.2012, FOC NO. 17/2012-13 VIDE ANNEXURE-C FOR THE OFFENCES PUNISHABLE U/Ss.4(1) 4(1A), 4(2), 21, 23, 21(6) OF MINES AND MINERALS (DEVELOPMENT AND REGULATIONS) ACT, 1957 AND SEC. 24(a), 24 (f), 24(g), 24(gg). 24(h), 73 (d), 82(B), 109 OF THE KARNATAKA FOREST ACT, 1963 AND RULE 144 OF KARNATAKA FOREST RULES, 1969 AND ALL FURTHER PROCEEDINGS THERETO SO FAR AS PETITIONERS/ACCUSED NO. 1, 3, 4 ARE CONCERNED.

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

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3 - NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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ORDER

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The petitioners are before this Court calling in

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question the registration of C.C. No.470/2022 in Crime No.17/2012-13 arising out of FIR dated 04.10.2012 in FOC No.17/2012-13 registered for the offences punishable under Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82B & 109 of the Karnataka Forest Act, 1963 and KFR (Rule) 144.

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Heard the learned counsel Shri Kartik Ganachari

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appearing for the petitioners and learned HCGP Shri V.S. Kalasurmath appearing for respondent – State.

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Learned Counsel appearing for the petitioners submits that all the offences alleged against the petitioners are non-cognizable and for such non cognizable offences, permission of the learned Magistrate under Section 155(2) was imperative. It is an admitted fact, in the case at hand, that no such permission is even sought for was granted by the learned Magistrate.

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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Learned HCGP at this juncture would submit

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that permission is obtained in the case at hand, of the learned Magistrate, but it was not prior permission prior to registration of crime, as necessary, failing which the crime itself would become contrary to law.

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The Co-ordinate Bench of this Court in Crl.P. No.101988/2022, disposed off on 14^th November 2022 has held as follows:

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“5. The FIR was registered on 03.10.2012. The Police, after investigation, submitted the charge sheet on 27.11.2020. The learned Magistrate took cognizance of the aforesaid offences on 05.08.2021. The Hon’ble Supreme Court in the case of Sara Mathew (supra), while examining the issue Whether for the purposes of computing the period of limitation under Section 468 Cr.P.C. the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether relevant date is the date on which a Magistrate takes cognizance of the offence, at paragraphs 17, 18 & 39, has held as follows:

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“17. It is true that in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] and Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] this Court has referred to two important legal maxims. We may add that in Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] ,

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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to which our attention has been drawn by the counsel, it is stated that the general rule of limitation is based on the Latin maxim vigilantibus et non dormientibus, jura subveniunt, which means the vigilant and not the sleepy, are assisted by laws. We are, however, unable to accept the submission that reliance placed on legal maxims was improper. We are mindful of the fact that legal maxims are not mandatory rules but their importance as guiding principles can hardly be underestimated.

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18. Herbert Broom in the Preface to the first edition of his classical work Legal Maxims (as seen in Broom's Legal Maxims, 10^th Edn., 1939) stated:

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“In the Legal Science, perhaps more frequently than in any other, reference must be made to the first principles. Indeed, a very limited acquaintance with the earlier reports will show the importance which was attached to the acknowledged maxims of the law, in periods when civilisation and refinement had made comparatively little progress. In the ruder ages, without doubt, the great majority of questions respecting the rights, remedies, and liabilities of private individuals were determined by an immediate reference to such maxims, many of which obtained in the Roman law, and are so manifestly founded in reason, public convenience, and necessity, as to find a place in the code of every civilised nation. In more modern times, the increase of commerce, and of national and social intercourse, has occasioned a corresponding increase in the sources of litigation, and has introduced many subtleties and nice distinctions, both in legal reasoning and in the application of legal principles, which were formerly unknown. This change, however, so far from diminishing the value of simple fundamental rules, has rendered an accurate acquaintance with them the more necessary, in order that they may be either directly applied, or qualified, or limited, according to the exigencies of the particular case, and the novelty of the circumstances which present themselves.”

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In our opinion, therefore, use of legal maxims as guiding principles in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] and Japani Sahoo [Japani Sahoo v. Chandra Sekhar

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] is perfectly justified.

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39. As we have already noted in reaching this conclusion, light can be drawn from legal maxims. Legal maxims are referred to in Bharat Kale [Bharat Damodar Kale v. State of A.P., (2003) 8 SCC 559 : 2004 SCC (Cri) 39] , Japani Sahoo [Japani Sahoo v. Chandra Sekhar Mohanty, (2007) 7 SCC 394 : (2007) 3 SCC (Cri) 388] and Vanka Radhamanohari [Vanka Radhamanohari v. Vanka Venkata Reddy, (1993) 3 SCC 4 : 1993 SCC (Cri) 571] . The object of the criminal law is to punish perpetrators of crime. This is in tune with the well-known legal maxim nullum tempus aut locus occurrit regi, which means that a crime never dies. At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the Latin maxim vigilantibus et non dormientibus, jura subveniunt. Chapter XXXVI CrPC which provides limitation period for certain types of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation under Section 468 of the Code is supported by the legal maxim actus curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant. Chapter XXXVI thus presents the interplay of these three legal maxims. The provisions of this Chapter, however, are not interpreted solely on the basis of these maxims. They only serve as guiding principles.”

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6. In view of the ratio enunciated by the Hon’ble Supreme Court in Sara Mathew’s case (supra), I am of the view that cognizance of the offence was taken by the learned Magistrate within two years, as specified in Section 468(2) of Cr.P.C., from the date the charge sheet was submitted by the Police.

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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7. The charge sheet is filed for the aforesaid offences against the petitioner-accused No.1 primarily on the basis of the report submitted by the Joint Team constituted by the Hon’ble Supreme Court. A perusal of the report submitted by the Joint Team does not disclose that the petitioner has carried illegal mining activity in the forest land. Paragraph 11 of the said Report pertaining to the company, read as follows:

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“ 11. About 8 Ha of forest land outside the sanctioned lease area of M/s Mysore Minerals Ltd. (ML No. 2629) has been used for dumping the overburden. While dealing with the case of M/s Mysore Minerals Ltd., the said dump was earlier considered to be belonging to the mining lease of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. (ML No. 2559) as it falls within the sanctioned mining lease boundary of the latter. Accordingly, the said dump was considered to be a legal dump falling within the lease area of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. and M/s Mysore Minerals Ltd. was cleared by the Joint Team in its proceedings dated 28.7.2011. However, while fixing the sanctioned lease sketch of M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. (ML No. 2559) it is seen that the mining lease was sanctioned only in the year 2009. The satellite imagery of October 2003, shows that the said overburden dump was already in existence. It therefore cannot belong to M/s Karthikeyas Manganese and Iron ore Pvt. Ltd. (ML No. 2559) but actually belongs to M/s Mysore Minerals Ltd: (ML No. 2629). In view of the above, the Joint Team has come to the conclusion that M/s Mysore Minerals Ltd. (ML No. 2629) has been involved in illegal mining by way of illegal dumping of overburden outside the lease area. The Joint Team has also received a representation that the iron ore, which was earlier not considered to be salable and dumped as overburden, is now being illegally removed and sold. This aspect also urgently requires further investigation and a time bound follow up action.”

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Hence, in the absence of any material that the petitioneraccused No.1, has carried out illegal mining activity in the forest land, the registration of the FIR culminating in initiation of criminal proceedings is impermissible.

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NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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8. The offences alleged are non-cognizable offences and the Police before registering the FIR were required to obtain prior permission as required under Section 155(2) of Cr.P.C. Obtaining of prior permission being mandatory, the registration of the FIR is without authority of law and subsequent filing of charge sheet stands vitiated.

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9. In view of the preceding analysis, I am of the considered view that continuation of criminal proceedings against the petitioner-accused No.1 will be an abuse of process of law since the probability of conviction of the petitioner-accused No.1 is remote and bleak.”

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In the light of the issue standing answered by

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the Co-ordinate Bench of this Court supra, I deem it appropriate to allow the petition on the very same reason rendered by Co-ordinate bench of this Court.

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For the aforesaid reason, the following:

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ORDER

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(i) The petition is allowed.

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(ii) The registration of C.C. No.470/2022 in Crime No.17/2012-13 arising out of FIR dated 04.10.2012 in FOC No.17/2012-13

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9 - NC: 2023:KHC-D:10481 CRL.P No. 100509 of 2023

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registered for the offences punishable under Sections 24(a), 24(f), 24(g), 24(gg), 24(h), 73(d), 82B & 109 of the Karnataka Forest Act, 1963 and KFR (Rule) 144, stands quashed.

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Sd/JUDGE

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Vnp*

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List No.: 1 Sl No.: 99

M/S Adarsh Enterprises, v. State of Karnataka

Case brief

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M/S Adarsh Enterprises, v. State of Karnataka

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