Virupaxagoud Shankaragoud Patil and Others vs The State of Karnataka

P.D. Waingankar, J.—This petition is one under Section 482 of Cr.P.C to quash the proceedings initiated against the petitioners in Badami Police Station Crime No. 193/2014 for the offences punishable under Sections 4(1) , 4(1A) and 21 of the Mines and Minerals (Development and Regulation) Act, 1957, under Sections 31(r), 9 of the Karnataka Minor Mineral Concession Rules, 1994, under Section 70 of the Karnataka Land Revenue Act, 1964 and under Section 379 of IPC.

The Tahasildar, Badami filed a complaint before Badami Police Station on 11.12.2014 wherein he alleged that the petitioners were found extracting and transporting sand from their patta land bearing Sy. Nos. 108, 109, 129, 130 in an area of about 90 acres without pass or permit from the Department of Mines and Geology clandestinely. It is also alleged that they extracted 10706.7 metric tonnes of sand worth Rs. 74,94,200/- clandestinely. The complaint came to be registered in Crime No. 193/2014 of Badami Police Station. The investigation is in progress. At this stage, the petitioners who are arrayed as accused Nos. 2 to 4 have filed this petition to quash the proceedings as against them on the ground that there is a clear bar for the Court under Section 22 of the MMDR Act, 1957 from taking cognizance of any offence punishable under the Act or any rules made thereunder except upon the complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. But, in this case the complaint is filed before a police officer, who in turn investigated and filed charge-sheet which is not permissible.

I have heard the learned counsel for the petitioners/accused and the learned Government Pleader for the respondent/State. Perused the records.

The learned counsel for the petitioners would submit that there is a clear bar under Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 to take cognizance of the offences by the Court unless the complaint in writing is made by a person authorised in this behalf by the Central Government or by the State Government. He would further submit that in the case on hand the complaint is filed by the Tahasildar before the police station and the police officer upon investigation has filed the charge-sheet before the Magistrate who in turn has taken cognizance which is in violation of Section 22 of MMDR Act, 1957. The learned counsel has relied upon the decision of this Court reported in K. Srinivas and others Vs. The State of Karnataka, , wherein it is held that there is a clear bar for the Court to take cognizance under Section 22 of the Act unless the complaint is filed by a person authorised in that behalf by the Central Government or the State Government. Hence, the learned counsel has sought to quash the entire proceedings.

On the other hand, the learned Government Advocate placing reliance on the division bench decision of the Supreme Court reported in Jaysukh Bavanji Shingalia Vs. State of Gujarat, would submit that the prohibition contained in Section 22 of the MMDR Act against prosecution of a person except on a complaint made by the authorised officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the MMDR Act or any other provisions of MMDR Act, 1957 and not for any act or commission which constitute an offence under the Indian Penal Code. In other words, the submission of the learned Government Advocate is that the police are barred from investigating an offence under Section 4(1A) r/w Section 21(1) of MMDR Act and Magistrate is barred from taking cognizance of offence under the provisions of MMDR Act, if the complaint is filed by police. As such, the learned Government Advocate has sought for dismissal of the petition.

Section 22 of the MMDR Act, 1957 reads as under:

"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."

In the decision of this Court reported in K. Srinivas and others Vs. The State of Karnataka, , it is observed as under:

"A close and careful reading of Section 22 extracted hereinabove, would show that there is blanket prohibition on the Court from taking cognizance of any offence punishable under the provisions of the Act of 1957 or the rules made thereunder expect upon a complaint in writing made by a person authorised in that behalf by the Central Government or the State Government. If the investigation under taken by the Jalahalli Police Station on the strength of the information lodged by the Assistant Superintendent of Police not competent to exercise the powers, which formed the basis for his information, were to culminate in the formation of opinion by the Sub-Inspector of Police that petitioners 1 to 3 would be required to be forwarded for inquiry and trial for the offence punishable under Section 4 of the Act of 1957 and Sections 447 and 379 read with Section 511 of the Indian Penal Code, in so far as the quarrying operations in the land bearing Survey No. 11 and if the final report is to be submitted in accordance with the opinion, it is evident from Section 22 that the learned Magistrate cannot take cognizance. The Charge-Sheet would be merely a scrap of paper. If the learned Magistrate could not take the cognizance of the offences, he cannot try the offences in accordance with law. In that view of the matter also, the registration of the case on the basis of the information furnished by the Assistant Superintendent of Police and the investigation taken up on the basis of the registration of the case and issuance of F.I.R., would be a futile and fruitless exercise."

Thus, from the observation made by this Court in the aforesaid decision, it is clear that there is a blanket prohibition on the Court from taking cognizance of any offence punishable under the provisions of MMDR Act of 1997 or the rules made thereunder except upon a complaint in writing made by a person authorised in that behalf by the Central Government or State Government.

The question before the Court is whether if a complaint is filed before the police for the offence punishable under Section 379 of IPC alongwith Section 4(1A) and Section 21(1) of MMDR Act and the police after investigation files a charge-sheet before the Court, whether the Court is barred from taking cognizance of the offence under Section 22 of the MMDR Act. The Supreme Court had an occasion to deal with the similar matter in the aforesaid decision relied upon by the learned Government Advocate. The Supreme Court held as under:--

"A. Mines and Minerals (Development and Regulation) Act, 1957 - Ss. 22 , 21 and 4(1-A) - Illegal mining of sand from riverbeds - Exercise of power by police and Magistrate vis-�-vis bar under S. 22 , MMDR Act when no complaint has been lodged by an officer authorised under MMDR Act - Extent of-Under such circumstances, police, held, is merely barred from investigating an offence under S. 4(1-A) r/w S. 21(1) , MMDR Act, and Magistrate is merely barred from taking cognizance of offence under S. 4(1-A) r/w S. 21(1) , MMDR Act - However, mining of sand from riverbed without licence or permit is also an offence of theft of minerals under S. 378 r/w S. 379 IPC as natural resources belong to the public and State being its trustee -Thus, police is empowered and duty-bound (under Ss. 149 to 152 and 154 Cr.P.C) to lodge an FIR under IPC and Cr.P.C., investigate it and file charge-sheet irrespective of the procedures under MMDR Act (even if police suo motu registers the FIR as in one of the present cases and even if complaint is not filed by person authorised under MMDR Act)."

The decision of the Supreme Court is directly on the point. From the observation made in the decision of the Supreme Court, it is abundantly clear that the bar under Section 22 of the Act on the Court from taking cognizance of an offence will come into play only in case of offences punishable under the provisions of MMDR Act. But in case of the offence of theft of minerals under Section 379 of IPC, the prohibition is not applicable. Since in the case on hand, the charge-sheet is filed for the offences under the MMDR Act as well as under Section 379 of IPC, the bar under Section 22 will not come into play.

Further, it has to be stated that under the amended Karnataka Mines and Mineral Concession Rules, 2011, whereby Chapter 4-B came to be incorporated, even the extraction of sand in a private land or patta land is totally prohibited. Therefore, the act of the petitioners in extracting sand from their patta lands not only amounts to violation of the provisions of MMDR Act but also it is an act of commission of theft. For all these reasons, I pass the following.

The petition is dismissed.