1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 15TH DAY OF APRIL 2019 BEFORE THE HON'BLE MR. JUSTICE K. SOMASHEKAR CRIMINAL PETITION No.200873/2018 Between: [ENTITY] S/o Mohammadsab Chapperband Age: 35 years, Occ: Driver R/o Balabatti village Tq. [ENTITY] Dist. Vijayapura-586 212 Petitioner (By Sri [ENTITY], Advocate) And: 1. The [ENTITY] Through the SHO [ENTITY] P.S., Represented by the Addl. State Public Prosecutor High Court of Karnataka Kalaburagi Bench-585 103 2. [ENTITY] S/o Chandrashekar Wadawadagi, Age: Major Occ: Revenue Inspector [ENTITY]-586 212 Respondents (By Sri [ENTITY], HCGP) 2 This Criminal Petition is filed under [SECTION] of [ACT], praying to quash the order of taking cognizance and issue of process dated 11.01.2016 in [CASE NUMBER] (Arising out of [ENTITY] P.S., [CASE NUMBER]) for the offences punishable under [SECTION] of [ACT] along with [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] along with [SECTION], [SECTION], [SECTION]/[SECTION] of the [ACT] against the petitioner. This petition coming on for Admission, this day, the Court made the following: ORDER
This petition is filed by the petitioner/accused No.2 under [SECTION] of [ACT] seeking quashment of the order of taking cognizance and issue of process dated 11.01.2016 passed in [CASE NUMBER] (Arising out of [ENTITY] Police Station [CASE NUMBER]) for the offence punishable under [SECTION] of [ACT] and [SECTION], [SECTION], [SECTION], [SECTION] of the [ACT] (for short '[ACT]') besides [SECTION], [SECTION], [SECTION]/[SECTION] of the [ACT] (for short '[ACT]') against the petitioner.
2. Factual matrix of the petition are as under:
On 06.08.2014 respondent No.2 received credible information to the effect that some perpetrators said to be accused without requisite permission from the competent authority are extracting the stones and boulders from R.S.No.37 of Hadalgeri village which is a government land. Immediately, respondent No.2 informed the said fact to Tahsildar, [ENTITY] and under his guidance, Village [ENTITY] and other neighboring villagers went to the scene of crime and found that there were six tractors along with trailers. Some of which were filled with boulders and stones and two trailers were empty. Respondent No.2 enquired with the petitioner and other persons about the requisite permission from the competent authority, but they did not give satisfactory reply relating to permission to remove the boulders and stones. Immediately, respondent No.2 secured two panchas and in their presence, the panchanama was conducted and the tractors and trailers were seized. Thereafter, respondent No.2 considering the fact that the petitioner and others were illegally carrying the stones and boulders lodged a complaint on behalf of the State against the petitioner and others for transporting the stones and boulders illegally. On filing of the complaint, a case in [CASE NUMBER] came to be registered for the aforesaid offences. Subsequently, the case in [CASE NUMBER] was registered against the petitioner wherein by order dated 11.01.2016, the Court below has taken cognizance and issued process against the accused and the same has been challenged in this petition by urging various grounds.
3. I have heard the learned counsel for the petitioner as well as the learned High Court Government Pleader for the respondents and perused the records of the case.
4. The learned counsel for the petitioner during the course of his arguments has contended that the registration of FIR by respondent No.1 at the instance of the complaint filed by respondent No.2 against the petitioner and subsequently continuation of proceedings is illegal and suffers from infirmities and it is also against the facts and materials placed on record by the respondents and is against the basic tenets of criminal jurisprudence. It is further contended that procedure adopted for initiation of criminal prosecution against the petitioner has been vitiated for non-compliance of mandatory provision of [SECTION] of the [ACT]. [SECTION] of the [ACT], requires that no Court shall take cognizance of any offence mentioned in [SECTION] if the complaint as understood under [SECTION] of [ACT], is not by the authorized person in this behalf either by the Central Government or State Government. The entire case of the prosecution is against the object of [SECTION] of the [ACT]. It is also contended that there is no material to suggest that respondent No.2 is the authorized person so that he can file a complaint. Further, initiating proceedings under the [ACT] as well as under the [ACT] specifically requires filing of complaint by the authorized officer under [SECTION] of [ACT], before the competent Court and not by falling upon [SECTION] of [ACT] Therefore, it is against the scope and object of [SECTION] of the [ACT]. On these grounds, the learned counsel for the petitioner seeks for allowing the petition by quashing the order of taking cognizance and issuance of process dated 11.01.2016 passed in [CASE NUMBER] arising out of [CASE NUMBER] of [ENTITY] Police Station for the aforesaid offences.
5. Per contra, the learned High Court Government Pleader for the respondents submits that, on filing of the complaint by respondent No.2, crime came to be registered and subsequently, the Investigating Officer has conducted investigation and after completion of investigation has laid chargesheet against the accused for the aforesaid offences. Thereafter, the Court below has taken cognizance against the accused for the offences under [ACT] and [ACT] and for the offence punishable under [SECTION] of [ACT]. Though there is expressive bar in respect of the aforesaid offences under [SECTION] of the [ACT], but there is no bar to the Investigating Officer to proceed with the case for investigation for the offence under [SECTION] of [ACT]. On these grounds, the learned High Court Government Pleader seeks for dismissal of the petition.
6. Having regard to the contentions of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondents are concerned, it is relevant to state that on 06.08.2014 respondent No.2 received credible information to the effect that some perpetrators said to be accused without requisite permission from the competent authority are extracting the stones and boulders from R.S.No.37 of Hadalgeri village which is a government land. Subsequently, respondent No.2 informed the said fact to Tahsildar, [ENTITY] and under his guidance, Village [ENTITY] and other neighbouring villagers went to the scene of crime and found that there were six tractors along with trailers. Some of which were filled with boulders and stones and two trailers were empty. Respondent No.2 enquired with the petitioner and other persons about the requisite permission from the competent authority, but they did not give satisfactory reply relating to permission to remove the boulders and stones from the said land. Immediately, respondent No.2 secured two panchas and in their presence, the panchanama was conducted and the tractors and trailers were seized. Subsequently, respondent No.2 considering the fact that the petitioner and others were illegally carrying the stones and boulders lodged a complaint on behalf of the State against the petitioner and others for transporting the stones and boulders illegally. On filing of the complaint, a case in [CASE NUMBER] came to be registered. Subsequently, the case in [CASE NUMBER] was registered against the petitioner for the aforesaid offences.
7. Looking to the facts and circumstances of the case, it is relevant to refer to [SECTION] of the [ACT] which 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."
8. Having regard to the facts and circumstances of the case, it is relevant to place reliance on the judgment rendered in the case of Sri Vivek and another vs. The [ENTITY], by Kunigal Police Station and another reported in ILR 2018 KAR 1497 wherein this Court placing reliance on the judgment of the Hon'ble Apex Court in the case of [PRECEDENT] has elaborately discussed with regard to the jurisdiction of Special Court and under what circumstances the Special Court can take cognizance of the offences under [ACT] and under what circumstances the jurisdictional Magistrate can take cognizance for the offence punishable under [SECTION] of [ACT] with reference to the land Mafia and also transporting sand stealthily by some perpetrators. In the said judgment, this Court has held that in order to empower the Court to take cognizance of the offences under [ACT], a private complaint is required to be filed by the competent authority for the offences punishable under the [ACT] or [ACT] thereunder.
9. In the said judgment, it is also observed that if a private complaint is filed under the [ACT] and [ACT], coupled with the other offences under any other laws, by the authorized officer, then the JMFC has got jurisdiction to take cognizance and commit the case to the Special Court to try, not only the offence under the [ACT] but also under other allied offences under [ACT] or any other penal laws for the time being in force. If the police file the final report invoking the provisions under the [ACT] and the [ACT], and file report before the jurisdictional Magistrate under [SECTION] of [ACT], then the jurisdictional Magistrate has no power or jurisdiction to take cognizance so far as the offences under the [ACT] and [ACT]. However, in view of the above said decision rendered by the Hon'ble Apex Court, the jurisdictional Magistrate is not debarred from taking cognizance of the offence punishable under [SECTION] and [SECTION] of [ACT] and any other offences under any other penal laws for the time being in force, as there is no legal bar for the Magistrate to take cognizance.
10. Therefore, it is required to go through the scope and object of [ACT] and [ACT]. They contain no provision empowering the Special Court to take cognizance directly for the offences under the said Act and Rules unless the complaint is filed by the competent authority and the case is committed for trial. The same has been dealt in detail in the aforesaid judgment.
11. The Hon'ble Apex Court in [PRECEDENT] case has held as under:
"71. Hence, merely because initiation of proceeding for commission of an offence under the [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 [ACT] and submit a report before the Magistrate for taking cognizance against such person. In other words, in a case where there is a theft of sand and gravels from the Government land, the police can register a case, investigate the same and submit a final report under [SECTION] [ACT], before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in [SECTION] of [ACT]"
12. In the instant case, petitioner is said to have used tractor and trailers for the purpose of carrying stones and boulders without having any valid permit from the competent authority. Therefore, case in [CASE NUMBER] came to be registered for the aforesaid offences and also mahazar has been drawn in the presence of panch witnesses and thereafter submitted a chargesheet before concerned Court of JMFC in [CASE NUMBER] wherein by order dated 11.01.2016, the Court has taken cognizance and issued process. The same has been challenged in this petition by urging various grounds stated supra.
13. Therefore, keeping in view the judgment of the Hon'ble Apex Court and this Court stated supra and in terms of the aforesaid reasons, this Court is of the opinion that the impugned order passed by the Court below in taking cognizance and issuance of process requires intervention by this Court only insofar as taking cognizance in respect of the offences under [ACT] so also under the [ACT]. Consequently, taking cognizance and issuance of process in respect of the aforesaid offences is liable to be quashed but the State is at liberty to proceed with the case for the offence under [SECTION] of [ACT] against the petitioner/accused in accordance with law.
14. Accordingly, I proceed to pass the following:
ORDER The petition filed by the petitioner under [SECTION] of [ACT], is allowed in part. Consequently, the proceedings initiated against the petitioner in [CASE NUMBER] arising out of [CASE NUMBER] pending on the file of the Senior Civil Judge and JMFC [ENTITY], for the alleged offences under [SECTION] of [ACT] so also [SECTION], [SECTION], [SECTION]/[SECTION] of the [ACT] against the petitioner/accused is hereby quashed.
However, it is made clear that the proceedings initiated against the petitioner/accused for the offence punishable under [SECTION] of [ACT] shall be in tact and to proceed in accordance with law wherein the chargesheet is pending.
JUDGE NB*