T.N. Harisha vs The State of Karnataka

K.N. Phaneendra, J.—Heard the petitions on merits at the time of hearing the matters for admission.

Perused the records. As both the above cases raise common question of law though the factual matrix are different, but the facts also raise common question of law. In CRL.P. No. 5415/2014 the police have registered a case against the petitioners on the allegation that on 22.8.2014 when the Maddur Police were on rounds, they received credible information that the driver of a lorry was shifting or excavating the minor mineral i.e., sand at the place near K. Hagalahalli on the river bed of Shimsha River. Immediately the Police have gone to the spot and seized the said lorry. However, the driver was successful in escaping from the spot. The police have registered a case in Crime No. 383/2014 for the offence punishable u/s 188, of IPC Rule 3 of the Karnataka Minor Mineral Concession Rulers, and Sec. 4 and 21(1) of the Mines and Mineral (Development & Regulation) Act (for short ''the MMRD Act'') and started investigation.

So far as it relates to Crl. P. No. 5416/2014 is concerned ASI, Koppa, on receipt of credible information on 14.8.2014 went near Kodiganahalli Village-river bed of Shimsha and found that one of the lorry driver violating the Mines and Mineral (Development & Regulation) Act and Rules was excavating sand from the said place. The police have attempted to draw mahazar in order to seize the tractor and trailor which were involved in the said cases. The driver of the said vehicle protested and pushed the police and raw away from the spot. The police have registered a '' case in Crime No. 119/2014 under Sections 188, 353 and 379 of IPC Rule 3(1) of the Karnataka Minor mineral Concession Rules and also u/s 4(1)(1A)(2)(3)(4) of the Mines and Minerals (Development and Regulations) Act.

The learned counsel appearing for the petitioners strenuously contends that this Court had many occasions to deal with such matters and held that without a private complaint the police cannot investigate the matter directly since the offences are essentially under the MMRD Act. Looking to the above factual matrix of both the cases, the police have registered cases under the IPC as well as under the MMRD Act. On two other occasions this Court in Crl. P. No. 11116/2012 vide order dated 3.09.2012 and also in Crl. P. No. 4642/2014 vide order dated 25.08.2014 held that unless a complaint is filed u/s 22 of the MMRD Act the police have no jurisdiction to take up the investigation and file any report u/s 173 of Cr.P.C. and the Magistrate has no jurisdiction to take cognizance on the basis of the police report. For the purpose of understanding I have also gone through the provision of Section 22 of the MMRD Act which reads as follows:-

"No Court shall take cognizance of any offence punishable under this Act or any Rules made thereunder except upon complainant in writing made by a person authorized in this behalf by the Central Government or State Government."

Section 2(d) of Cr.P.C. explains what is meant by "complaint" which reads as follows:-

"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."

(Emphasis supplied)

A combined reading of the above said two provisions amply clarifies the position that cognizance under the MMRD Act can only be taken for the offence committed under the Act, on the basis of the complaint and in view of Section 2(d) of CR.P.C.-a complaint may be submitted to the jurisdictional Magistrate.

However, it is further clarified that the Magistrate has no jurisdiction to take cognizance on the basis of the police report u/s 173 of Cr.P.C. What exactly happened in these cases is that the police have registered the cases and investigated the matters u/s 173 of Cr.P.C. which is bad in law. Hence the said proceedings deserves to be quashed. Accordingly, the following order is passed.

Both the petitions are hereby allowed. Consequently the first information report in both the Criminal Petitions in

a. Crime No. 383/2014 on the file of Maddur Police registered as FIR No. 1243/2014 dated 22.8.2014 and

b. Crime No. 119/2014 on the file of Koppa Police registered as FIR No. 1208/2014 dated 14.8.2014,

are hereby quashed.