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2010 (3) GCD 2160 (Guj)
Hon’ble Mr. Justice Akil Kureshi
Vishalbhai Rameshbhai Khurana & Anr.
Versus
State of Gujarat & Anr.
Criminal Misc. Application 5230 of 20101—Decided on 03/09/20102
[Indian] Penal Code, 1860 (Central Act 45 of 1860) — Sections 379 read with 114 — Mines and Minerals (Development and Regulation) Act, 1957 — Sections 4(1), 21(1), 21(2), 21(3), 21(5), 21(6), 22, 23 and 23-A — Gujarat Mineral (Prevention of Illegal Mining Transportation and Storage) Rules, 2005 — Rules 3, 5, 6, 8, 13 and 42 — Lodging of FIR before Police — Cognizance by Magistrate on Police report — Scope of — Finding as to.
Held :
In conclusion, it would appear that though for the offences alleged under the Act or the Rules made there under it would be open to the police to register an FIR upon receipt of information of commission of such offences, upon completion of investigation, the Magistrate is prevented from taking cognizance of the offences otherwise on a complaint by an authorized officer and certainly not on mere police report. This is, however, not to suggest that on the basis of the report of the Investigating Officer, the authorized person would not be in a position to file a complaint before the Magistrate relying on such material or the report of the investigating agency. [Para17]
1. Section 22 of the Act does not prohibit registering an FIR by the police on information being given with respect to offences punishable under the said Act or the Rules made there under,
2. It is, however, not open for the Magistrate to take cognizance of the offence punishable under the Act or the Rules made there under on a mere charge sheet filed by the police. It would, however, be open for the officer authorized by the State or the Central Government in this behalf to file a complaint in writing before the Magistrate relying upon the investigation carried out by the police and the compliant may also include the papers of police investigation.
3. With respect to offences punishable under the Indian Penal Code, no such bar as indicated in Para (2) would apply. [Para 21]
In so far as the petitions where only FIRs has been registered by the police and no charge sheet is filed, they must fail. In so far as the cases where police investigation has been concluded and charge sheets has been filed, it would not be open for the Magistrate concerned to take cognizance of offences only on such police reports. [Para 22]
In the result, Criminal Misc. Application Nos. 5230 of 2010 and 5228 of 2010 wherein charge-sheets has been filed, is disposed of in view of the observations and directions given above of this judgment. Rest of the petitions is dismissed. [Para 23]
Law Laid Down :
Section 22 of the Act of 1957 does not prohibit registering an FIR by Police on information with respect to offences under the Act.
Akil Kureshi, J.—This group of petitions involve similar questions of law though individual facts are slightly different. They, therefore, are heard together and are being disposed of by this common judgment.
2. Facts may be noticed from Criminal Misc. Application No. 5230 of 2010. In the said petition, the petitioners-original accused have challenged the legality and validity of criminal complaint bearing C.R. No. 326/08 filed before Bhuj Taluka Police Station by Geologist of the State Government. In the complaint, it is stated that from the letter of the Mamlatdar it was learnt that in the sim of village Angiya, mineral (black trap) was being excavated by M.S. Khurana Engineering Company. Upon spot inspection, one JCB Machine and a dumper loaded with black-trap were found at the spot which were seized by the Police. Supervisor of the Company was present. His statement and the statement of one labourer were recorded. Statement of driver of the dumper was also recorded. They could not produce necessary licence for such mining. It was found that such illegal mining was being carried out at three different places. The Geologist estimated total cost of illegal mining of minerals at Rs. 21,74,040/-. He, therefore, lodged the said complaint with the police for alleged commission of offence under Section 379 read with Section 114 of the Indian Penal Code and under Sections 21(1), 21(2), 21(3) and 21(5) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter to be referred to as ‘the Act’) and under the provisions of the Gujarat Mineral (Prevention of Illegal Mining, Transportation and Storage) Rules, 2005 (hereinafter referred to as ‘the Rules’). Though the petition was filed at the stage when the investigation was not yet completed, it appears that subsequently, the police has completed the investigation and filed charge sheet before the Magistrate. The Magistrate, however, has not formally taken cognizance of the offence.
3. For rest of the petitions, it would not be necessary to take detailed account of the allegations in the complaint. However, bare facts may be noticed.
3.1 In Criminal Misc. Application No. 5228 of 2010, the petitioners are the original accused in complaint bearing C.R. No. I-130/08 filed by the Geologist at Nakhratrana Police Station on 26.8.08 alleging offences punishable under Section 379 read with section 114 of the Indian Penal Code and under Sections 21(1), 21(2), 21(3) and 21(5) of the Act. Investigation was carried out and completed on 12.9.09 with filing of charge sheet. Criminal Case No. 479/09 is pending before the learned Magistrate. The Magistrate, however, has not formally taken cognizance of the offence.
3.2 In Criminal Misc. Application No. 3726 of 2010, the petitioner is original accused No. 4 in complaint bearing C.R. No. II-120 of 2009 registered at Bhagvadar Police Station by the Royalty Inspector of the State of Gujarat alleging offences punishable under section 379 read with section 114 of the Indian Penal Code and under section 4(1)of the Act. No charge sheet has been filed so far in this case.
3.3 Criminal Misc. Application No. 14330 of 2009 arose out of a complaint bearing C.R. No. II-120 of 2009. The petitioner in the said application is original accused No. 1.
3.4 Criminal Misc. Application No. 13726 of 2009 also arose out of complaint bearing C.R. No. II-120 of 2009 where the petitioner is original accused No. 2.
3.5 Criminal Misc. Application No. 1671 of 2010 arose out of complaint bearing C.R. No. II-120 of 2009 registered at Bhagvadar Police Station where the petitioners are the original accused.
3.6 Special Criminal Application No. 1737 of 2008 arose out of complaint bearing C.R. No. II-3028/2008 filed before Sayla Police Station by the Incharge Mines Supervisor, alleging offence punishable under Sections 4(1) and 21(1) of the Act. No charge-sehet has been filed in this complaint so far.
3.7 Special Criminal Application No. 674 of 2008 pertains to complaint
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