APHC010396662019 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] TUESDAY ,THE SEVENTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 7217/2019 Between: P.kishore and Others ...PETITIONER/ACCUSED(S) AND The State Of Andhra Pradesh ...RESPONDENT/COMPLAINANT Counsel for the Petitioner/accused(S): 1. RAVURI LEELA SAI SAMPATH Counsel for the Respondent/complainant: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 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 power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 8. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: In “R.P. Kapur v. State of Punjab1”, the Apex Court laid down the following principles: “(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” 9. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not 1AIR 1960 SC 866 disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar2” 10. In “State of Haryana v. BhajanLal3” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 2 AIR 1990 SC 494 3 1992 Supp (1) SCC 335 (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Keeping in view the above principles, I would like to examine the case on hand. 11. Admittedly, the main allegations that the laid against the petitioners herein are that upon the instructions of the petitioner/accused Nos.1 and 2, the accused No.3 had illegally loaded the subject vehicle with sand at Pedhavalasapuram Sand reach without any bills and documents regarding the transportation of sand and was caught by the respondent-police while transporting the sand. Hence, a report came to be lodged against the petitioners herein. 12. In order to ensure the effective disposal of the case, this Court finds it necessary to extract Section 22 of the MMDR Act: “22. No court shall take cognizance of any offence punishable under this 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.” 13. The learned counsel for the petitioners contends that the Hon’ble Apex Court in several judgments clearly and categorically held and decided the issue that the police cannot straight away register the case under Section 21 of the MMDR Act, except upon a complaint before the Magistrate. The learned counsel further relied on the judgment of the Madras High Court rendered in Elangeswaran v.The State4, for the following proposition: “…12…70.There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorized under the Act shall exercise all the powers including making a complaint before the jurisdictional magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code…” 14. On perusal of the aforementioned provision, it appears that for initiating prosecution under the MMDR Act, filing of a complaint before the Magistrate under Section 200 Cr.P.C., is a procedural requirement. But, in the present case, the 2nd respondent-Sub-Inspector of Police (Special Enforcement Bureau), after receiving credible information regarding the illegal transportation of sand, took action by seizing the vehicle and registered the FIR based on the police report. The registration of an FIR solely on the report of a police officer does not comply with the procedure contemplated under Section 22 of the MMDR Act. 4 Crl.OP.No.8584 of 2013 dated 01.03.2019 15. Further, regarding the applicability of Section 379 of I.P.C, the essential elements required to sustain the charge of theft and imposing punishment for theft appears to be absent in this case. The diversion of the sand shipment by violating transportation rules, does not indicate fraudulent or dishonest intent by the petitioners to deceive or mislead anyone for personal gain. Therefore, this Court is of the opinion that the allegation under Section 379 I.P.C does not appear to be prima facie maintainable, as there is insufficient evidence to suggest any fraudulent or dishonest intent on the part of the petitioners. As such, the criminal petition deserves to be allowed. 16. Accordingly, this criminal petition is allowed, by quashing the proceedings in FIR.No.341 of 2019, before SHO, Duvvada Police Station, Visakhapatnam against the petitioners/accused Nos.1 to 3. . Miscellaneous petitions pending, if any, in this petition shall stand closed. __________________ JUSTICE V.SUJATHA Date: 07.01.2025 SRT 271 THE HONOURABLE SMT.JUSTICE V.SUJATHA Crl.P.No.7217 of 2019 Date: 07.01.2025 SRT