The FIR was quashed due to non-compliance with the MMDR Act's requirement for a prior complaint to the Magistrate and lack of evidence for theft under IPC.

ORDER

This petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in FIR.No.341 of 2019, before SHO, Duvvada Police Station, Visakhapatnam for the offences punishable under Section 379 IPC and Section 21(1) of M.M.D.A.R.A. Act, 1957.

2. The petitioners herein are the accused Nos.1 to 3 and the respondent- Police is the de-facto complainant. The prosecution had registered a case against the petitioners herein stating that on 21.11.2019 at about 17.00 hrs at VUDA Phase III Rajeev Nagar, Gajuwaka, Visakhapatnam, on the credible information the SI of Police, Duvvada Police Station, Visakhapatnam along with his staff went to the spot and found on lorry bearing No.AP 05 TB 2718 along with sand. On seeing the respondent-Police, when the petitioner/accused No.3, who was driving the lorry tried to escape from the spot and the police caught him. But no documents were available with him regarding the transportation of the sand and later on the respondent-police came to know that the petitioner/accused No.1 is running lorry supply in the name and style of M/s. Annapoorna Lorry Supply, Pithapuram and the petitioner/accused No.2 is the owner the seized lorry and further upon the instructions of the accused Nos.1 & 2, the accused No.2 had loaded the seized lorry with sand at Pedavalasapuram sand reach without any permission and was transporting the same. Therefore, the respondent –police registered an FIR against the petitioners herein.

3. The present petition is filed to quash the FIR on the foremost ground that the FIR itself not maintainable under Section 22 of the MMDR Act. For the registration of any case under MMDR Act, particularly for penalties under Section 21(1) of the MMDR Act, a complaint must be filed before the Magistrate under Section 200 of Cr.P.C. only. However, in this case, the FIR was registered basing on a police report, which is not maintainable under law. The police at the instance of seizing the vehicle had found that there were no bills and documents relating to sand which is being transported by the accused No.3 on the instructions of the accused Nos.1 and 2, a crime under Section 379 IPC was registered solely on the basis that the vehicle was proceeding with illegally loaded sand at the Pedhavasalapuram sand reach. Prima facie, such an allegation under Section 379 IPC does not appear to be applicable and further the de-facto complainant and as well as the investigating officer cannot be one and same. Hence, prays to allow the petition.

4. Learned Assistant Public Prosecutor contended that the alleged acts of the petitioners is sufficient to conclude that the petitioners have committed an offence punishable under Section 379 IPC and under Section 21(1) of the MMDR Act and requested to dismiss the petition.

5. When the petition came up for hearing on 04.12.2019, this court has passed the following order:

“…In view of the issues raised, there shall be a limited stay of all further proceedings in FIR No.341 of 2019 dated 21.11.2019 of Station House Officer, Duvvada police Station, Visakhapatnam, till 30.12.2019.”

6. Having heard the submissions made by the learned counsel representing both parties and on perusal of the material available on record, the point that arises for consideration is as follows:

“Whether the proceedings in FIR.No.341 of 2019, before SHO, Duvvada Police Station, Visakhapatnam for the offences punishable under Section 379 IPC and Section 21(1) of M.M.D.A.R.A. Act, 1957, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” The present petition has been filed under Section 482 of Cr.P.C.

7. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also