State of Kerala v. Sarath, Sasikumar, Arun, Arun, Nikhil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **FRIDAY, THE 10TH DAY OF JANUARY 2014/20TH POUSHA, 1935** ## **Crl.MC.No. 1890 of 2012 ()** ## **-------------------------------------** ## **(CRIME NO. 1618/2011 OF NEYYATTINKARA POLICE STATION,THIRUVANANDAPURAM)** **.................** ## **PETITIONERS/ACCUSED :** **-------------------------------------** **1. SARATH, AGED 21 YEARS, S/O. SASIDHARAN, S.N.BHAVAN, ALAYKONAM, MAJAVILAKOM DESOM, KOLLAYIL VILLAGE, THIRUVANANTHAPURAM.** **2. SASIKUMAR, S/O. THANKAYYAN, CHETTIYANVILAYIL, 5/92, VEYANOOR DESOM, VEYANOOR VILLAGE, VILAVANKODU TALUK,KANYAKUMARI DISTRICT.** **3. ARUN, AGED 20 YEARS, S/O. VIJAYAKUMAR, CHOONDUVILA VEEDU, CHITTAKODU, KADAVATTARAM DESOM, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** **4. ARUN, AGED 18 YEARS,** - **S/O. JAYAKUMAR, THERIVILA HOUSE, VADAKODU DESOM, PERUMBAZHUTHUR VILLAGE, THIRUVANANTHAPURAM.** ## **5. NIKHIL, AGED 18 YEARS,** - **SASIDHARAN NAIR, VISHNU SADANAM, KODUNGAVILA, OLIPPUSALA, ATHIYANOOR DESOM, ATHIYANOOR VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.** **BY ADVS.SRI.E.M.MURUGAN SRI. RAVIKRISHNAN SRI. P.R. PRATEESH** ## **RESPONDENT/COMPLAINANT :** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING, THE S.I OF POLICE, NEYYATTINKARA POICE STATION, THIRUVANANTHAPURAM.** **BY PUBLIC PROSECUTOR SRI. REJI JOSEPH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-01-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **vs** **Crl.MC.No. 1890 of 2012 ()** **-------------------------------------** **APPENDIX** **---------------** **PETITIONERS ANNEXURE -------------------------------------** **ANNEXURE A: FIR IN No.1618/2011 OF NEYATTINKARA POLICE STATION, TRIVANDRUM DISTRICT.** **RESPONDENT ANNEXURE : NIL** **--------------------------------------** **// TRUE COPY //** **P.S. TO JUDGE** **vs** ## **A.HARIPRASAD, J.** **------------------------------------------------** ## **Crl.M.C.No.1890 of 2012** **-----------------------------------------------Dated this the 10[th] day of January, 2014.** ## **O R D E R** This is a petition filed under Section 482 Cr.P.C. Petitioners are accused 1 to 5 in crime No.1618/2011 of Neyyattinkara Police Station. Annexure A is the F.I.R. It reveals that the petitioners are charged under Section 4(1) r/w Section 21 of the Mines and Minerals (Regulation and Development) Act, 1957 ('MMDR Act' for short) and under Rule 58 of the Kerala Mines and Minerals Concession Rules, 1967. Allegations, in short, against the petitioners are that the petitioners with a view to make an unlawful gain and to cause damage to the ecological balance on 27-08-2011 at 00.30 hours in the night removed earth by using JCB and tried to transport the same in a tipper lorry bearing registration No. KL 20 C 3099. 2. Petitioners contended that they are not involved in any offence as alleged. 3. Heard the learned counsel for the petitioners and the **Crl.M.C.No.1890 of 2012 2** learned Public Prosecutor. 4. At the time of hearing, the learned counsel for the petitioners submitted that as per Section 23 A of the MMDR Act, any offence punishable under this Act or any Rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorized under Section 22 of the Act to make a complaint with respect to that offence, on payment to that person, for credit to the Government, such sum as may be specified counsel placed reliance on a decision of this court in _**Dijil and Another v. Sub Inspector of Police (2013(1) KHC 517).**_ Paragraph 25 of the decision is quoted hereunder : _“ 25. Therefore, in cases where the offences are compounded in the light of subsection (2) of S.23A of the Act and R.60A of the Rules, no proceedings can be taken against the offender. In the light of the fact that the Court can take cognizance only on a_ **Crl.M.C.No.1890 of 2012 3** _complaint in writing, it cannot be said that after the composition of the offence a fresh complaint can be filed. Even in respect of cases where complaint has been filed, if the offence is compounded, a report will have to be filed before the Court and the complaint will have to be closed. When power is given to the Court itself to confiscate the vehicle and no separate procedure is prescribed in such cases by the main body of S.21, it is not possible to accept the contention of the learned Government Pleader that again an order of confiscation can be passed by the Court. No specific procedure is prescribed under the enactment or under the Minor Mineral Concession Rules to approach the Court in such cases to proceed with the confiscation proceedings. The rules framed under S.15 of the Act by the State Government do not provide anything with regard to the confiscation proceedings as already noticed. It may be a matter for_ **Crl.M.C.No.1890 of 2012 4** _consideration by the appropriate bodies to in new bring provisions concerning confiscation proceedings.”_ 5. Learned Single Judge in that case disposed the writ petitions with following directions : - _“ i) In cases where compounding applications have been acted upon as per the interim orders passed by this Court and the offences have been compounded and compounding fees have been collected and vehicles have been released, it is declared that no further proceedings can be taken for confiscation of the vehicles;_ _ii) In cases where complaints have been filed before the Court but compounding applications have been entertained and offences have been compounded, appropriate applications will be filed before the Courts and the concerned Courts will pass appropriate orders in the matter with regard to the closure of the cases pending;_ ## **Crl.M.C.No.1890 of 2012 5** _iii) In cases where compounding applications are yet to be filed by the parties concerned, it is open to them to file applications which will be dealt with by the officer concerned in accordance with law and they will be free to pass appropriate orders on it. If no applications are filed within a period of three weeks from today and if compounding is not being allowed, it is open to the concerned officers to complete the procedures as enjoyed by law._ _The writ petitions are allowed as above. No costs.”_ 6. Learned counsel for the petitioners contended on the basis of the above decision that the petitioners are willing to approach the authorized officer for compounding the offences. The petitioners requested that it may be made clear that in the event of composition not only the case will have to be closed, but the proceedings against the vehicle also will have to be stopped. Therefore, considering the provisions in the Act and the **Crl.M.C.No.1890 of 2012 6** precedent on the point, I dispose of the Crl.M.C with following directions : The petitioners are free to approach the Officer authorized under the MMDR Act and the Rules to compound the offences and the officer shall consider the claim, in accordance with law. In the event of composition, the vehicle involved in the case shall be released without any further proceedings against the vehicle in relation to this crime. All pending interlocutory applications will stand dismissed. **Sd/-** **A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk