Petitioners have been charge sheeted for the offence

under Section 21 of the Mines and Minerals (Development and

Regulation) Act, 1957 (MMRD. Act) and Section 379 of IPC

alleging

that,

the

petitioners

were

transporting

sand

unauthorizedly which was valued at Rs.4,000/-. The cognizance

taken of the aforesaid offence by the learned Magistrate is

impugned in this petition.

Learned counsel for the petitioners submits that the

sand was transported after obtaining permit from the

Competent Authority under the provisions of MMRD Act. He

further submits that, cognizance of the offence under the

MMRD Act can be taken by the learned Magistrate only upon

the compliant in writing by the officer prescribed. Hence, he

submits that, the registration of the FIR culminating in filing of

the charge sheet stands vitiated.

On the other hand, learned High Court Government

Pleader appearing for the respondent-State submits that, the

petitioners were found transporting sand unauthorizedly, and

the learned Magistrate has rightly taken the cognizance and the

- 5 -

same does not warrant any interference and sought for

dismissal of the petition.

I have considered the submission made by the

learned counsel appearing for the parties.

Petitioners transported the sand after obtaining the

permit. Hence, the charge sheet filed for offence under Section

21 of the MMRD Act and Section 379 of IPC is without any

substance.

Offence under Section 21 of the MMRD Act, is the

substantive offence. Section 22 of the MMRD specifies that, no

Court shall take cognizance of any offence punishable under

this Act or any rules made there under, except upon the

compliant in writing made by a person authorized in this behalf

by the Central Government or the State Government.

To constitute an offence punishable under Section

379 of IPC, a person must have removed the property

belonging to another person without his consent. In the

present case, there is no allegation that the petitioners were

transporting the sand after removing the sand belonging to the

- 6 -

Government without its consent. Moreover, the petitioners-

accused have transported the sand after obtaining permit from

the competent authority. Hence, the cognizance taken for the

offence under Section 379 of IPC is also impermissible.

In the instant case, the learned Magistrate has

taken cognizance on the basis of the final report submitted by

the Police which is impermissible and consequently, the

cognizance taken stands vitiated.

In view of the preceding analysis, I am of the

considered view that, the continuation of the criminal

proceedings against the petitioners-accused will be an abuse of

process of law.

Accordingly, I pass the following:

ORDER

i)

The writ petition is allowed;

ii)

The impugned proceedings in CC. No.189/2017, on

the file of the Principal Civil Judge and JMFC Channagiri is

hereby quashed.

Sd/-

JUDGE

HR

List No.: 1 Sl No.: 59