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Ahmed Bahusab Bepari & Others v/s State of Karnataka, Presented by its State Public Prosecutor

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Criminal Petition Nos. 102012, 102013 & 102034 of 2018

    Decided On, 15 February 2019

    At, High Court of Karnataka Circuit Bench At Dharwad


    For the Appearing Parties: Vishwanath Badiger, Praveen K Uppar, Advocates.

Judgment Text

1. Though this matter is listed for admission, with the consent of the petitioner's counsel and the learned HCGP, it is taken up for final disposal.

2. Heard the petitioner's counsel and also the learned HCGP for the respondent-State.

3. The prayer sought in this petition by invoking Section 482 of Cr.P.C. is to quash the entire proceedings in CC No.1366/2018 (Crime No.189/2018) of Khanapur P.S. for the offences punishable under Sections 4(1), 4(1A), 21 and 22 of the MMDR Act, Rules 3, 32 and 44 of KMMC Rules and under Section 379 of IPC pending on the file of Prl. Civil Judge and JMFC Court, Khanapur.

4. It is the contention of the petitioner's counsel that the police have filed a complaint for the offence punishable under the MMDR Act and KMMC Rules and the initiation of the proceedings against the petitioner is against law and deserves to be quashed. It is further contended that the petitioner is innocent and he has not committed any offences alleged against him. It is further contended that the averments of the complaint revealed that there is no allegations in the present complaint against the petitioner and as per FIR and complaint, there is no specific role made out against the petitioner.

5. The petitioner's counsel reiterating the grounds urged in the petition would contend that the suo-moto complaint filed by the complaint itself is not maintainable in view of Section 22 of the MMDR Act. He also contended that the Magistrate has committed serious error while taking cognizance for the offence under the MMDR Act and KMMC Rules in the light of the law laid down by the Hon'ble Apex Court in the case of State (NCT of Delhi) Vs Sanjay and Others, reported in, (2014) 9 SCC 772. Hence, prayed to quash the proceedings alleged against him.

6. Per contra, the HCGP appearing for the respondent State contends that PSI has registered a case on credible information and further contends that, in order to invoke the offence under the MMDR Act, an authorized officer has to file a complaint before the Magistrate and under Section 22 of MMDR Act, the Court can take cognizance in respect of the offences under the provisions of MMDR Act. However, the complaint registered for the offences of IPC cannot be quashed in view of the judgment of the Hon'ble Apex Court delivered in State (NCT of Delhi) vs. Sanjay (supra). Hence, prayed this Court only to consider the offence with regard to MMDR Act and Rules and not for the offences under IPC.

7. Having heard the petitioner's counsel and HCGP for respondent State, this Court has to examine whether this Court can exercise the powers under Section 482 of Cr.P.C. to quash the proceedings against the petitioner in the case on hand.

8. The main contention of the petitioner before this Court is that the police officer has no right to register the case against the petitioner and only based on the complaint, law has to be set in motion. This Court in Crl.P. No.101274/2018 and connected matters has categorically held that the offences under the MMDR Act is cognizable under Section 21(6) of the MMDR Act, hence, under Section 154 of Cr.P.C., the Station House Officer has got power to register the case as held by the Apex Court in the case of Lalita Kumari vs. Government of UP and others reported in, (2014) AIR SC 187.

9. On perusal of the material on record, the case is registered based on the complaint and the Court has also taken cognizance based on the complaint filed by authorized person and it is made clear in the judgment of State (NCT of Delhi) Vs. Sanjay, wherein the Hon'ble Apex Court has held that for the IPC of fences, case can be proceeded as per initiation of the case by the police officer and if the offence is under the special enactment, cognizance can be taken only on the complaint. On perusal of the records, cognizance is taken based on the complaint of police and not on the complaint as contemplated under Section 22 of the MMDR Act and hence, the cognizance taken for the offence under Section 379 of IPC has to be continued and cognizance taken for the offence un

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der the MMDR Act is liable to be quashed. 10. In view of the discussions made above, I proceed to pass the following order: i. The petition allowed in part. ii. The cognizance taken for the offence under the MMDR Act is quashed and the cognizance taken for the offence under Section 379 of IPC is continued. iii. The authorized office is having liberty to file complaint for the offence under the MMDR Act.