Najeeb and others v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942** ## **Crl.Rev.Pet.No.1331 OF 2009** **CRA 243/2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-I, KOTTAYAM** **ST 1145/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VAIKOM** ## **REVISION PETITIONER/S:** - **1 NAJEEB, S/O ABDUL REHMAN VAZHATHARAYIL HOUSE, MARAVANTHURUTHU KARA,, K.S.MANGALAM VILLAGE.** - **2 JOSHY, S/O.VISWANATHAN, VALECOTTU HOUSE CHUNGOM BHAGOM, EDAVATTOM KARA, K.S.MANGALAM VILLAGE.** - **3 REMANAN,S/O.VASU, MUTHUKUZHY HOUSE KANJIPALAM BHAGOM, K.S.MANGALAM KARA, K.S.MANGALAM VILLAGE.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/S:** **STATE OF KERALA HIGH COURT OF KERALA,ERNAKULAM(CRIME NO.406 OF, 2006 OF VAIKOM POLICE STATION).** ## **OTHER PRESENT:** **SR.PP.M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.No.1331 OF 2009 ..2.. ## **O R D E R** The revision petitioners are the accused in ST No. 1145 of 2006 on the file of the Judicial First Class Magistrate Court, Vaikom and the appellants in Crl. Appeal No. 243 of 2008 on the file of the Additional Sessions court (Adhoc)-I, Kottayam. The offences alleged against the accused are punishable under Sections 4(1) and 21(1)(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as, “the MMDR Act”). 2. The trial court convicted the accused 1 to 3 under Section 58(1) of the Kerala Minor Mineral Concession Rules (hereinafter referred to as, “the Rules”) and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/- each and in default of Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** payment fine to undergo simple imprisonment for 15 days each more. 3. Challenging the conviction and sentence imposed by the trial court, the accused preferred Crl. Appeal No. 243 of 2008 and the appellate court, by its judgment dated 18.08.2008, dismissed the appeal confirming the judgment of conviction and sentence imposed by the trial court. Feeling aggrieved, the accused are before this Court in revision. 4. The prosecution case, in brief, is that on 16.06.2006 at 10.15 am, the Circle Inspector of Police, Vaikom, received a reliable information that the accused 2 and 3 had been loading river sand in the lorry bearing Reg.No.KL-8X 5755, of which the 1[st] accused was the driver, which was collected by the 3[rd] accused unauthorizedly from Moovattupuzha river, the Circle Inspector of Police and party rushed to the scene of occurrence, Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** caught the accused red-handed, seized the lorry and registered the case against the accused 1 to 3 for the aforesaid offences. 5. Heard Sri.S.Rajeev, the learned counsel for the revision petitioners; and the Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. 6. The learned counsel for the revision petitioners submitted that as per Section 22 of the MMDR Act, no court shall take cognizance of any offence punishable under the MMDR Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government. According to him, this is a case, where PW4, the Circle Inspector of Police, initiated prosecution under Section 4(1) of the MMDR Act without resorting to the provisions contemplated under the MMDR Act. It was contended that PW4 was Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** not authorized by the Central Government or the State Government to initiate prosecution under the MMDR Act. Elaborating on the submission, the learned counsel contended that although the case was lodged under Section 4(1) of the MMDR Act, the trial court convicted the accused for the offence punishable under Rule 58(1) of the Rules, which was formulated in accordance with the provisions contained under the MMDR Act. The sum and substance of the contention is that cognizance of the offence as contemplated under the MMDR Act or the Rules framed thereunder without resorting to Section 22 of the MMDR Act is highly illegal. It is further contended that the Rules have no application in Kerala after the enactment of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001, pertaining to river sand is concerned. Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** **==> picture [415 x 13] intentionally omitted <==** [2020 KHC 6672], the apex court held in paragraph 13 of the judgment as hereunder; “13. After giving our thoughtful consideration in the matter, in the light of the relevant provisions of the MMDR Act and the Rules made thereunder vis - a - vis the Code of Criminal Procedure and the Penal Code, and the law laid down by this Court in the cases referred to hereinabove and for the reasons stated hereinabove, our conclusions are as under: i)that the learned Magistrate can in exercise of powers under S.156(3) of the Code order / direct the concerned In - charge / SHO of the police station to lodge / register crime case / FIR even for the offences under the MMDR Act and the Rules made thereunder and at this stage the bar under S.22 of the MMDR Act shall not be attracted; ii)the bar under S.22 of the MMDR Act shall be attracted only when the learned Magistrate takes cognizance of the offences under the MMDR Act and Rules made thereunder and orders issuance of process / summons for the offences under the MMDR Act and Rules made thereunder; iii)for commission of the offence under the IPC, on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorised officer for taking cognizance in respect of violation of various provisions of the MMDR Act and Rules made thereunder; and iv)that in respect of violation of various provisions of the MMDR Act and the Rules made thereunder, when a magistrate passes an order under S.156(3) of the Code and directs the concerned In - charge / SHO of the police Crl.Rev.Pet.No.1331 OF 2009 ..7.. station to register / lodge the crime case / FIR in respect of the violation of various provisions of the Act and Rules made thereunder and thereafter after investigation the concerned In - charge of the police station / investigating officer submits a report, the same can be sent to the concerned magistrate as well as to the concerned authorised officer as mentioned in S.22 of the MMDR Act and thereafter the concerned authorised officer may file the complaint before the learned Magistrate along with the report submitted by the concerned investigating officer and thereafter it will be open for the learned Magistrate to take cognizance after following due procedure, issue process / summons in respect of the violations of the various provisions of the MMDR Act and Rules made thereunder and at that stage it can be said that cognizance has been taken by the learned Magistrate. v)in a case where the violator is permitted to compound the offences on payment of penalty as per sub-S.1 of S.23A, considering sub-S.2 of S.23A of the MMDR Act, there shall not be any proceedings or further proceedings against the offender in respect of the offences punishable under the MMDR Act or any rule made thereunder so compounded. However, the bar under sub-S.2 of S.23A shall not affect any proceedings for the offences under the IPC, such as, S.379 and S.414 IPC and the same shall be proceeded with further.” Going by the dictum laid down, it is clear that cognizance of an offence punishable under the MMDR Act or the Rules framed thereunder shall be taken only upon a written complaint made by a person authorized in this behalf by Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** the Central Government or the State Government. 8. In the case on hand, PW4 is admittedly not an authorized officer under the MMDR Act. Therefore, on a fair reading of Section 22 of the MMDR Act, the bar would clearly be attracted in this case. Hence, the learned Magistrate erroneously took cognizance against the accused of the offence under Section 4(1) of the MMDR Act and ultimately convicted the accused under Rule 58(1) of the Rules. It is not necessary to consider and discuss all other legal issues involved. 9. Judged by the above standards, this Court is of the view that the trial court took cognizance of the offence under Section 4(1) of the MMDR Act and conducted trial of the case without jurisdiction as contemplated under law. The trial of the case was illegal without resorting to the provisions under Crl.Rev.Pet.No.1331 OF 2009 **==> picture [31 x 8] intentionally omitted <==** Section 22 of the MMDR Act. Thus, the conviction and sentence imposed by the trial court, which was later confirmed in appeal, are liable to be set aside. In the result, the criminal revision petition is allowed. The revision petitioners/accused 1 to 3 are found not guilty of the offence punishable under Rule 58(1) of the Rules and they are acquitted thereunder. Cancelling their bail bond, this Court directs that they be set at liberty. If any amount is deposited pursuant to an interim order passed by this Court, the same shall be released to the revision petitioners/accused 1 to 3 in accordance with law. Pending applications, if any, stand disposed of. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/08.01.2021