Point of Law: Bar under sub-section (2) of Section 23-A shall not affect any proceedings for the offences under IPC, such as, Section 379 and 414 IPC, which shall proceed further in accordance with law.

ORDER :

1. The present petition is moved under Section 482 of the Code of Criminal Procedure, 1973 (for Short ‘Code’) with a prayer to quash and set aside the complaint being II-C.R. No.17/2017 dated 18.05.2017 under Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal Mining, Transportation And Storage) Rules, 2005 and Sections 4(1-A) and 21 of the Mines And Minerals (Development And Regulations) Act, 1957 (for short ‘MMRD Act’), registered at Gir Gadhada Police Station, culminated as Criminal Case No.1894/2017 before the Judicial Magistrate, First Class, Gir Gadhada.

2. The F.I.R. has been lodged by respondent no.2 – Assistant Geologist, Gir Somnath Office, Gir Somnath with allegation that excavation is being carried out in the land belonging to the applicant. Section 379 of the I.P.C. was prayed to be added vide application of A.S.I., Gir Gadhada Police Station and the learned Judicial Magistrate, Gir Gadhada by an order dated 25.09.2017 permitted to add the same in the F.I.R.

2.1 The applicant states that the F.I.R. is absolutely false and no such offence has been committed by him. He is residing at the place far away from the land, as noted in the F.I.R. The applicant found some villagers near his land and therefore had made representation to the authorities concerned including the police to initiate action against them, but no heed was paid to his representation. The applicant has also challenged the lodging of the F.I.R. by the police.

3. Mr. Dagli, learned advocate for the applicant, submitted that the F.I.R. filed is in context of alleged breach of Section 4(1-A) and 21 of the MMRD Act with breach of Gujarat Mineral Rules. At the end of the investigation, the charge-sheet is also filed for the offence under Section 379 of the IPC. Mr. Dagli submitted that the MMRD Act is a special Act where the cognizance is to be taken in accordance to the provisions of Section 22 of the Act and such can be done only after a private complaint by the person authorized on behalf of the Central Government or the State Government. He submitted that the proceedings has arisen out of an F.I.R. filed by the police and in pursuance thereof report was submitted under Section 173 of the Code, therefore, stated that any cognizance on the report would be illegal, unjust and without jurisdiction.

3.1 Mr. Dagli stated that the offence was registered under MMRD Act and later on Section 379 of IPC was added, which he submits, has to be proved, since the alleged act is of excavation of minerals from the private land of the applicant and therefore, Mr. Dagly submits that no offence would be made out under Section 379 of the IPC. Mr. Dagli submitted that the applicant has made several representations by contending that the activities on land were by persons unknown to him and the police or the authorities under MMRD Act, has not taken any action towards such representation.

4. Ms. Monali Bhatt, learned APP for the respondent State, referring to the case of Jayant And Other Vs. State of Madhya Pradesh, reported in (2021) 2 Supreme Court Cases 670, submitted that the issue has now been settled and the Hon’ble Apex Court in the said judgment referring to various case laws has ultimately concluded in para-21, which as per Ms. Monali Bhatt, would be useful guidance and direction to the authorities under the MMRD Act and the police and further to the Magistrate and the Special Court. Ms. Bhatt, contended that the judgment of Jayant And Other Vs. State of Madhya Pradesh (supra) would clarify the course of action to be adopted by the authorities and the Court concerned.

5. Perusal of the F.I.R. shows that it was lodged on a complaint by Mr. Yogesh Savjani, Mines Supervisor, Geology and Mining Department, Gir Somnath. The complaint was addressed to the Police Inspector, Gir Gadhada Police Station, Gir Somnath on 18.05.2017 with the allegation of theft of mineral under Section 379 of IPC, Sections 3, 5, 6 and 13 of Gujarat Minerals (Prevention of Illegal