IMPORTANT POINT
If police has submitted report based on complaint filed alongwith FIR based on which Magistrate has taken cognizance, it cannot be held to be bad.

ORDER

Huluvadi G. Ramesh, J.— Heard the learned Counsel for the petitioners and the learned Additional State Public Prosecutor for respondent:

2. The petitioners in these two petitions have sought for quashing the case registered in Crime No. 208 of 2012 of Shahapur Police Station and to discharge them. The petitioners who claim to be the drivers of the lorry were transporting sand illegally from Krishna River Basin. In this regard, one Sri N.S. Mukandappanavar, Senior Geologist filed a complaint before Shahapur Police for illegal mining and transportation of the sand and also had directed them to stop such illegal transport. As per the complaint, it is stated that one Vishwanatha Reddy and Vaarada Nagabhushana are misusing the seal of the authority and certifying forged documents.

3. On 17.12.2012, a meeting was held by the Sand Monitoring Committee under the Chairmanship of Deputy Commissioner, Yadgir who visited the sand mining block and seized 27 trucks, tipper and Hitachi vehicle on the ground that the documents are fabricated and not genuine. The complaint was filed against the petitioners and others in Crime No. 208 of 2012 for the offences punishable under Sections 406, 408, 420 and 379 of Indian Penal Code, 1860 before Shahapur Police Station.

4. Challenging the filing of FIR against the petitioners on the instigation of persons and stating as per Section 22 of Mines and Minerals (Development and Regulation) Act, 1957 (‘MMDR’ for short), the complaint ought to have been filed as per Section 2(d) of Criminal Procedure Code, 1973 before the Magistrate, therefore, registration of FIR by the police is bad in law and as such, there is violation of procedure in not filing the complaint before the Magistrate directly and rather the case was registered before the police which is in violation of Section 22 of MMDR Act and that Section 2(d) of Cr.P.C. contemplates the complaint to be filed by the authorized person orally or in writing and registration of FIR is not contemplated as it is bad in law, Counsel has sought for quashing of FIR and in support of his argument, he also relied upon an unreported decision of this Court in Cri. P. No. 15145 of 2012, dated 1.2.2013 to contend that the case registered under the IPC has to be quashed.

5. Heard the learned Additional State Public Prosecutor.

6. The main allegation against these petitioners is that they are transporting sand. So far as tampering of the documents is concerned, Sections 406 and 408 of IPC may not be applicable to the petitioners. Section 379 of IPC applies to the case on hand. The petitioners were transporting the sand illegally and dishonestly and they were transporting the sand by committing theft. In the case on hand, Section 379 attracts. Even if it is assumed that the provisions of MMDR Act is attracted, the complaint has to be filed in writing by a person authorised in this behalf by the Central Government or the State Government. So far as the filing of complaint for alleged offence of theft and cheating which attracts the provisions of IPC then necessarily the procedure followed by filing the complaint before the police that to by the authorised person, is very much with reference to Section 22 of MMDR Act.

7. The argument of the learned Counsel for the petitioners is that as per Section 2(d) of Cr.P.C, the complaint ought to have been filed before the Magistrate orally or in writing with regard to the offence committed. Accordingly, it is contended that the provision has not been followed by filing the complaint and registration of FIR by the police on the complaint by the Authorised Officer is bad in law.

8. Learned Additional State Public Prosecutor contended that in the case of State of Karnataka v. Adimurthy alias B. Moorthy1, in a similar situation regarding theft of electricity and registration of FIR under Section 379 of IPC is held as valid in following the procedure and contended that even Section 50 of the Electricity Act provides for a similar