RAMABHAI VAGHABHAI SABHAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein are challenging the order dtd. 28/6/2023 passed by the learned Additional Sessions Judge below Exh.1 in Criminal Inquiry no.2/23. The order impugned passed by the Special Court was in criminal inquiry moved by the Royalty Inspector of Geology Department. The complainant had moved the application under Sec. 22 of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as 'the MMDR Act') and Rule 21 of the Gujarat Minor Mineral Concession Rules, 2017 (hereinafter referred to as 'the Rules'). The order impugned is under Sec. 156(3) of the Code of Criminal Procedure, 1973 directing the Police Inspector, Vankaner Taluka Police Station to do the needful and after investigation to produce the report.

(2.) Learned advocate Mr. Jay Shah for the petitioners submits that the order impugned is faulty and would be against the procedure of the Cr.P.C. since on 17/6/2023, the court had already taken the cognizance of the complaint and had ordered for registration of the complaint and thus, submits that after the order under Sec. 202 of the Cr.P.C., the learned Judge cannot go back at a precognizance stage for any registration of the complaint by police as would become mandatory to file the FIR since the order is under Sec. 156(3) of the Cr.P.C. Advocate Mr. Shah submits that the complaint moved by the authority of the Mines and Minerals Department was under Rule 22 of the Rules which authorizes the competent authority to compound the offence even prior to institution of prosecution and thereafter and if the offence gets compounded, no further proceedings shall be commenced against such person and if any proceedings have already commenced, such proceedings would get a quietus, as the Rule provides that no other process to be further proceeded and if at all the accused is in custody, he shall be discharged and the property seized if it is not to be retained be released. Advocate Mr. Shah submits that the authority had moved for compounding the offence itself gets reflected in the impugned order. Advocate Mr. Shah submits that since the petitioners were of the view that there was no offence committed, he has not adopted the option of compounding the offence and had preferred for trial. Learned advocate submits that in view of Sec. 22 of the MMDR Act, no court can take any cognizance of the offence under the Act or the Rules except upon the complaint in writing made by the person authorizing in this behalf by the Central Government and the State Government. Learned advocate submits that in case when already a complaint has been registered and cognizance has been taken under Sec. 202 then no further order can be made for registration of the complaint under Sec. 156(3) of the Cr.P.C.

(3.) Ms. Jirga Jhaveri, learned APP submits that the Rules are specified to bring all the process to be undertaken by the authority concerned at all stages and further states that the judgment in the case of Jayant and Ors. (supra) laid down the directions to be followed by the police as well as the authorities concerned and the direction is also to the Court to adopt the procedure accordingly.