Allowed

Manjunatha v. the State of Karnataka

Karnataka HC10 Jan 2024CRL.RP/941/2014

Case brief

AI extract

What is this about?

Two lorry drivers convicted for transporting sand without permit were acquitted on revision. The court held cognizance violated the written-complaint bars under Section 195 Cr.P.C. and Section 22 MMDR Act, and found no cogent evidence of theft under Section 379 IPC.

What did the court decide?

Conviction and sentence set aside; both petitioners acquitted under Sections 379, 188 IPC and Sections 4(1)(A) and 21(1) MMDR Act, fine refunded.

Manjunatha Vs the State of Karnataka — Mining and Natural Resources | Karnataka HC (2024)

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1 - NC: 2024:KHC:1206 CRL.RP No. 941 of 2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 941 OF 2014

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BETWEEN:

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MANJUNATHA,

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NOW AGED ABOUT 34 YEARS, S/O LATE VEERAIAH, RESIDING AT KEMPANNA HALLI VILLAGE, (BIDADI HOBLI), BUT IN KASABA HOBLI, RAMANAGARA TALUK - 562 129, RAMANAGARA DISTRICT.

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SUBRAMANI,

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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NOW AGED ABOUT 30 YEARS, S/O RAMULU, RESIDING AT HEJJALA VILLAGE, BIDADI HOBLI, RAMANAGARAM TALUK - 562 129, RAMANAGARA DISTRICT.

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…PETITIONERS

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(BY SMT. M. GAYATHRI, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, REP. BY K.R. PET TOWN POLICE STATION, BY ITS STATION HOUSE OFFICER, REP. BY STATE PUBLIC PROSECUTOR,

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GOVERNMENT OF KARNATAKA, K.R. PET, MANDYA DISTRICT - 571 426.

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…RESPONDENT

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(BY SRI. M.R. PATIL, HCGP)

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THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED:29.5.2014 IN CRL.A.NO.75/2013 ON THE FILE OF THE III-ADDL.DIST.AND S.J., MANDYA (SITTING AT SRIRANGAPATNA), WHERE IN CONFIRMING THE JUDGMENT AND ORDER OF SENTENCE OF CONVICTION AND FINE DATED:10.4.2013 IN C.C.NO.323/2007 ON THE FILE OF THE CIVIL JUDGE AND JMFC, KRISHNARAJPET, MANDYA DISTRICT, BY ALLOWING THIS CRL.R.P. AND FURTHER PRAYS TO ACQUIT THE PETITIONERS BEFORE THE TRIAL COURT FOR THE CHARGES U/S. 188, 379 AND U/S. 41(A) AND 21 OF THE MMRD ACT.

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

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ORDER

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Revision petitioner/accused Nos.1 and 2 have preferred this revision petition against the Judgment of conviction and order on sentence passed by the Civil Judge and JMFC, K.R.Pet in C.C.No.323/2007 dated 16.04.2013 (hereinafter referred to as 'Trial Court', which is confirmed by the III Addl. District and Sessions Judge, Mandya (sitting at Srirangapatna) in Criminal Appeal No.75/2013

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dated 29.05.2014 (hereinafter referred to as 'Appellate Court').

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Parties are referred to as per the rankings before

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the Trial Court.

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The brief facts of the prosecution case is that on 16.01.2017 at 4.20 p.m., within the jurisdiction of K.R.Pet Police Station at Rayasamudra village, the accused without having any valid licence or permit, were transporting sand worth of Rs.2,000/- through lorry bearing Registration No.KA-05/AF-936 and another lorry bearing No. KA-05/8698 by committing theft. During that period, there was prohibition to transport sand. Thus, the accused have committed the offence under Sections 379 and 188 of IPC. After filing charge sheet, case was registered against the accused in C.C.No.323/2007 and summons were issued to the accused. In response to summons, the accused appeared. Trial Court framed charges against the accused for the commission of offence under Sections 379 and 188 of IPC. Same was read over

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and explained to the accused. Accused having understood the same, pleaded not guilty and claimed to be tried. After framing charge under Section 379 and 188 of Indian Penal Code, the application was filed under Section 216 Cr.P.C., to alter the charge. Same was allowed by Trial Court and additional charge was framed for the commission of offence under Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (in short 'MMDR Act'). Same was read over and explained to the accused. Accused having understood the same, claimed to be tried and to prove the guilt of accused.

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To prove the guilt of the accused, prosecution has examined seven witnesses as PWs 1 to 7 and produced six documents as Exs.P1 to P6. Thereafter, Statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused has totally denied the evidence of prosecution witnesses appearing against them and have not chosen to lead any defence evidence on their behalf. Having heard the arguments on

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both sides, the Trial Court has convicted the accused for the commission of offence under Section 379 and 188 of IPC and also Section 4(1)(A) read with Section 21(1) of the MMDR Act. The accused was also sentenced for a period of one year for the commission of offence under Section 379 of Indian Penal Code and fine of Rs.1,000/each. In default of payment of fine, they shall undergo S.I for two months. Accused are also convicted for the commission of offence under Section 188 of Indian Penal Code and sentenced to simple imprisonment for ten days. Further, the accused were sentenced for a period of six months for the commission of offence punishable under Section 21(1) of MMDR Act.

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Being aggrieved by this Judgment of conviction and order of sentence, the accused have preferred appeal in Criminal Appeal No.75/2011 on the file of the III Addl. District and Sessions Judge, Mandya (sitting at Srirangapatna) and the said appeal came to be dismissed on 29.05.2014. Being aggrieved by the Judgment passed

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by both the Courts below, the revision petitioner has preferred this revision petition.

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Smt M.Gayathri, learned counsel appearing on

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behalf of the revision petitioner submitted that the concerned Police have no right to file charge sheet against the accused for the commission of offence under Section 188 of IPC. However, the Trial Court has ignored the provisions of Section 195 of Cr.P.C., and took cognizance against the accused for the commission of offence punishable under Section 188 of IPC which is not sustainable in law. Further, she submits that the Trial Court has ignored the provisions of Section 22 of MMDR Act and allowed the application filed by the prosecution under Section 216 of Cr.P.C., and framed the charges against the accused for the commission of offence under Section 21 of MMDR Act, which is not sustainable under law. Further, she submits that with regard to the offence punishable under Section 379 of IPC is concerned, absolutely there are no evidence against the accused to

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attract the provisions punishable under Section 379 of IPC. The owner of the lorry is not implicated as accused in this case. Though there is no nexus between the accused and this seized lorry at the relevant point of time, the prosecution has not placed any material to show that the accused has committed theft of sand and transported in lorry bearing No.KA-05/C-8697 and another lorry bearing No.KA-05/AF-936. The Trial Court has failed to appreciate the evidence in accordance with law and facts and convicted the accused for the commission of offence punishable under Section 379 of IPC which is confirmed by

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the appellate Court without proper appreciation of evidence on record. On all these grounds, sought for allowing the revision petition.

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On the other hand, learned High Court Government Pleader submitted that both the Courts have appreciated the evidence on record in accordance with law and facts and order of sentence passed by the Trial Court which is confirmed by the Trial Court, is in accordance with

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law. On these grounds, sought for dismissal of revision petition.

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Having heard the arguments on both sides, the following points would arise for my consideration:

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i) Whether the Trial Court has committed an error in taking cognizance against the accused for the commission of offence under Section 188 of IPC and also Section 4(1)(A) read with Section 21(1) of the MMRD Act, ignoring the provisions of Section 195 of the Code of Criminal Procedure, 1973 and Section 22 of MMRD Act?

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ii) Whether the revision petitioner has made out ground to interfere with the impugned Judgment of conviction and order of sentence passed in respect of Section 379 of IPC which is confirmed by the Appellate Court?

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iii) What order?

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My answer to the above points are as under:

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Point No.(i): Affirmative

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Point No.(ii): Affirmative

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Point No.(iii): As per final order

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Regarding Point No.1:

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I have carefully examined materials placed before this Court.

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On the basis of the complaint filed by Nooruddin Shariff, Tahasildar, K.R.Pet Taluk, the Sub-Inspector of Town Police Station, K.R.Pet have registered the case in Crime No.6/2007 against the Accused Nos.1 and 2, who are the drivers of lorry bearing No.KA-05/AF-936 and KA05/C-8697 for the commission of offence punishable under Sections 379 and 188 of IPC and submitted the F.I.R to the Court. That on 17.01.2007, the Investigating Officer has conducted spot mahazar as per Ex.P6 and recorded statement of witnesses and after completion of the investigation, the Investigating Officer has submitted the

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charge sheet against the accused for the offence punishable under Sections 188 and 379 of IPC. After filing

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the charge sheet, the Trial Court has blindly and mechanically taken cognizance against the accused for the commission of offence punishable under Section 188 of IPC ignoring provisions of Section 195 of Cr.P.C.

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In this regard, it is appropriate to mention here as to the provisions of Section 195 of Cr.P.C:

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"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(1) No Court shall take cognizance-

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(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

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(ii) of any abetment of, or attempt to commit, such offence, or

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(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

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(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when

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such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

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(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

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(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

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(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

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(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court

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to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-

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(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

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(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

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On a perusal of the material placed before this

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Court, absolutely there are no materials to prove that the accused have committed the offence punishable under Section 188 of IPC.

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There is a bar to take cognizance against the accused for the offence under Section 188 of IPC except on the complaint in writing to the Court as required under

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Section 195 of Cr.P.C. In the case on hand, the Trial Court took cognizance against the accused not on the

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complaint filed by the concerned officer as defined under Section 2(d) of Cr.P.C., but on the basis of police report which is not sustainable under law. Both Courts have committed an error as to the non-compliance of mandatory provisions of Section 195 of Cr.P.C. Hence, the Judgment of conviction and order of sentence passed by the Trial Court in respect of offence under Section 188 of IPC which is confirmed by the Appellate Court is not sustainable in law.

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With regard to the offence punishable under Section 4(1)(A) read with Section 21(1) of Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'MMDR' Act for short) is concerned, the Investigating Officer has not filed the charge sheet or complaint for the alleged commission of offence under Section 21(1) of MMDR Act. But only on the application filed by the prosecution under Section 216 of Cr.P.C., the Trial Court has framed the charges against the accused for the commission of offence punishable under

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Section 21(1) of MMDR Act ignoring the provisions of Section 22 of MMDR Act.

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It is appropriate to mention here as to the provisions of Section 22 of the MMDR Act, which 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 in this behalf by the Central Government or the State Government.

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Both the Courts have ignored the provisions of

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Section 22 of MMDR Act. Hence, the Judgment of conviction and order on sentence passed by the Trial Court for the commission of offence punishable under Section

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4(1)(A) read with Section 21(1) of MMDR Act, is not sustainable under law. Accordingly, the order of conviction and sentence passed pertaining to the offence under Section 21(1) of MMDR Act is liable to be set aside.

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Accordingly, I answer Point No.1 in the affirmative.

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Regarding Point No.2:

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With regard to the offence punishable under

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Section 379 of IPC is concerned, it is the case of the prosecution that the Accused Nos.1 and 2 being the driver of lorry bearing No.KA-05/AF-936 and lorry bearing No.KA-05-C-8697, have committed theft of sand worth about Rs.2,000/-, thereby, committed the offence punishable under Section 379 of IPC. The complainantNooruddin Shariff who is the Tahasildar, K.R.Pet has deposed in his evidence as to the contents of the complaint-Ex.P1 and also the order passed by the Tahasildar as per Ex.P4 as to transportation of sand. The owner of the lorries have not been cited as witnesses in the charge sheet. Even the Investigating Officer has not examined the owner of the lorry before this Court. The registration of certificate of the above said lorries are also not placed before this Court. The investigating officer has not collected any material to prove that the Accused Nos.1 and 2 were the drivers of the lorries at the relevant point

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of time. The Investigating Officer has not explained anything as to non-production of driving licence and registration of certificate of the above said lorries.

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P.W.2-Lakshmikanth, Revenue Inspector, P.W.3Gopalakrishna, Revenue Inspector, P.W.4-R.K.Nagaraju, P.W.6-Ravikumar and P.W.7-Manjesha have also deposed as to the seizure of lorry.

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PW.1-Nooruddin Shariff, the complainant has not deposed in his evidence that he has apprehended accused No.1 while loading the sand to the lorries. First of all, the investigating officer has not collected the materials to show the owner of the lorries who has entrusted these accused for transportation of sand and that are no sufficient cogent, convincing, clinching and believable evidence to convict the accused for the offence punishable under Section 379 r/w 34 of Indian Penal Code.

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Both the Courts have not properly appreciated the evidence on record in accordance with law and facts. Accordingly, the revision petitioner/accused Nos.1 and 2

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have made out a ground to interfere with the judgment of conviction and order of sentence passed by the Trial Court under Section 379 of IPC which is confirmed by the Appellate Court. Hence, I answer point No.2 in affirmative.

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Regarding Point No.3:

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For the aforesaid reasons and discussions, I

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proceed to pass the following:

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ORDER

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i. Criminal revision petition is allowed .

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ii. Judgment of conviction and order of sentence dated 10.04.2013 passed in C.C.No.323/2007 by the Court of the Civil Judge and JMFC, Krishnarajpet, which is confirmed by the judgment dated 28.05.2014 passed in Crl.Appeal No.75/2013 by the Court of the III Addl. District & Sessions Judge, Mandya (Sitting at Srirangapatna) are set aside.

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iii. Revision petitioner/accused Nos. 1 and 2 are acquitted for the offence punishable

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under Section 379 and 188 of Indian Penal Code and Section 4(1)(A) read with Section 21(1) of MMDR Act.

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iv. If any fine amount is paid by the accused, the same shall be paid to them.

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v. Registry is directed to send copy of this order along with records to the concerned Courts.

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Sd/JUDGE

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BNV,SSD List No.: 1 Sl No.: 21 CT:SNN

Manjunatha v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Manjunatha v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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