GHELUBHAI BOGHABHAI KAMBARIA vs STATE OF GUJARAT

Court
Gujarat High Court

R/CR.MA/17064/2018 JUDGMENT DATED: 23/10/2026
(GJHC240550742018)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17064 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 20121 of 2018

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE P. M. RAVAL

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Approved for Reporting Yes No
✔
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GHELUBHAI BOGHABHAI KAMBARIA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
H P BAXI(9459) for the Applicant(s) No. 1
MR VASHISTHA M JOSHI(8972) for the Applicant(s) No. 1,2
MR. ROHAN SHAH, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE P. M. RAVAL

Date : 23/10/2026

COMMON JUDGMENT
1. The applicants before this Court have invoked Section 482 of
the Code of Criminal Procedure, 1973, to quash and set aside the
FIR being C.R. No.I-47 of 2007, dated 19.05.2007, lodged before
the Kalyanpur Police Station, District: Jamnagar, for the offence
punishable under Section 379 read with Section 114 of the Indian
Penal Code, 1860, and Sections 4(1), 4(1)A and 25(1)(2) of the
Mines and Mineral (Development and Regulation) Act, 1957 (for
short “M.M.D.R. Act”) and Sections 27(1) and 29 of the Wild Life
(Protection) Act, 1972 (for short “Wild Life Act”) alongwith the
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R/CR.MA/17064/2018 JUDGMENT DATED: 23/10/2026
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subsequence proceedings thereto.
2. The complainant Bhimabhai Hematbhai Patel, Royalty
Inspector, Mines and Minerals Department, District: Jamnagar has
filed FIR on 19.05.2007 before Kalyanpur Police Station against the
applicants mainly to the effect that before 21.12.2006 at any time the
accused have excavated 65532-00 Sq.Meter land of Virpur Mevasa
and Marin National Park and committed theft of Mines and Minerals
(Bauxite) of Rs.31,08,67,425/- and thereby the accused have
committed an offence punishable under Sections 379, 114 of IPC
and an offence punishable under Sections 4(1), 4(1)A, 25(1)(2) of
Mines and Mineral (Development and Regulations) Act, 1957 and
offence punishable under Sections 27(1), 29 of the Wild Life
(Protection) Act, 1972.
3. Learned advocates for the respective applicants would submit
that as per the provisions of Section 22 of the M.M.D.R. Act only
authorized person can file complaint before the Court for the
offences committed under the Act, and thus, the Court cannot take
cognizance pursuant to the final report submitted by the
investigation agencies, since, as per the mandate of the said Act, as
provided under Section 2D of the Cr.P.C., that too also by an
authorized person by the Central government or the State
government, can lodge such private complaint. Learned advocates
would further submit that, as far as the Wild Life Act is concerned,
similar provisions are provided in Section 55 of the said Act,
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wherein it is provided that no Court shall take cognizance of any
offence under this Act except on a complaint of any person
authorized by the Central government or the State government, and
that too also after giving a notice not less than 16 days in the manner
prescribed of the alleged offence. Thus, it is argued that the Court
cannot take cognizance pursuant to the final report submitted under
Section 173 of the Cr.P.C. pursuant to an FIR, and thus all the
proceedings under the M.M.R.D. Act and Wild Life Act are required
to be quashed and set aside.
4. Per contra , learned Additional Public Prosecutor Mr. Rohan
Shah for the State would submit that the FIR is not only qua the
Mines and Minerals (Development and Regulation) Act and the Wild
Life (Protection) Act, but is also under Indian Penal Code, more
particularly, Section 379 which relates to punishment for theft as
provided under Section 378 of the IPC, and when the theft of bauxite
to the tune of Rs.32,08,67,425/- is alleged, the said fact of theft can
be looked into by the trial Court, even if the trial Court cannot take
cognizance under the M.M.D.R. Act and the Wild Life Act.
5. Having heard the learned advocates for the respective parties
and perusal of papers annexed to the application, the following
issues are require for consideration:
1. Whether Section 22 of the M.M.D.R. Act and Section 55
of the Wild Life Act prohibit the police from investigating and
filing a charge-sheet for offences punishable under the IPC
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(Section 379/114 IPC)?
2. Whether the FIR and proceedings qua the statutory
offences under the M.M.D.R. Act and the Wild Life Act can be
sustained when initiated via a police report (FIR)?
6. The key legal issue is no longer res integra . The scope of
Section 22 of the M.M.D.R. Act in relation to IPC offences was
authoritatively settled by the Hon’ble Supreme Court in the case of
State (NCT of Delhi) v. Sanjay, reported in (2014) 9 SCC 772 ,
wherein the Apex Court analyzed the interplay between Section 22
of the M.M.D.R. Act and Section 379 IPC and held that Section 22
of the Act is not a complete bar to the police to register a case,
investigate and submit a report to the Court for taking cognizance on
the offence under the IPC. Theft of minerals from the riverbed or
land belonging to the State without consent constitutes an offence
under Section 378 IPC punishable under Section 379 IPC. The
Magistrate can very well take cognizance of the offence of theft
under Section 379 IPC on the basis of a police report filed under
Section 173 Cr.P.C.
6.1. The Apex court in Sanjay (supra) thus held as follows:
70. From a close reading of the provisions of MMDR
Act and the offence defined under Section 378, IPC, it
is manifest that the ingredients constituting the offence
are different. The contravention of terms and
conditions of mining lease or doing mining activity in
violation of Section 4 of the Act is an offence
punishable under Section 21 of the MMDR Act,
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whereas dishonestly removing sand, gravels and other
minerals from the river, which is the property of the
State, out of State’s possession without the consent,
constitute an offence of theft.
71. Hence, merely because initiation of proceeding for
commission of an offence under the MMDR Act on the
basis of complaint cannot and shall not debar the
police from taking action against persons for
committing theft of sand and minerals in the manner
mentioned above by exercising power under the Code
of Criminal Procedure and submit a report before the
Magistrate for taking cognizance against such person.
In other words, in a case where there is a theft of sand
and gravels from the Government land, the police can
register a case, investigate the same and submit a final
report under Section 173, Cr.P.C. before a Magistrate
having jurisdiction for the purpose of taking
cognizance as provided in Section 190 (1)(d) of the
Code of Criminal Procedure.
72. After giving our thoughtful consideration in the
matter, in the light of relevant provisions of the Act vis-
à-vis the Code of Criminal Procedure and the Indian
Penal Code, we are of the definite opinion that the
ingredients constituting the offence under the MMDR
Act and the ingredients of dishonestly removing sand
and gravel from the river beds without consent, which
is the property of the State, is a distinct offence under
the IPC. Hence, for the commission of offence under
Section 378 Cr.P.C., 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 authorized officer
for taking cognizance in respect of violation of various
provisions of the MMRD Act. Consequently the
contrary view taken by the different High Courts
cannot be sustained in law and, therefore, overruled.
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Consequently, these criminal appeals are disposed of
with a direction to the concerned Magistrates to
proceed accordingly.
7. The statutory provisions under Section 22 of the M.M.D.R.
Act and Section 55 of the Wild Life Act explicitly prohibit Courts
from taking cognizance of offences punishable under those specific
Acts except upon a written complaint by an authorized officer.
However, this statutory restriction does not strip the police of their
powers under the Cr.P.C. to investigate cognizable offences under
the IPC (such as Section 379 for dishonesty extracting/removing
minerals belonging to the State).
8. Harmonious Bifurcation of Proceedings:
1. Qua IPC Offences (Sections 379, 114 IPC): The FIR and
police investigation are completely lawful. The Magistrate is
empowered to take cognizance under Section 190(1)(b) Cr.P.C.
on a police report.
2. Qua Offences under M.M.D.R. Act & Wild Life Act:
The Magistrate cannot take cognizance under these special
Acts directly on a police charge-sheet. To prosecute the
accused under the M.M.D.R. Act or Wild Life Act, the
authorized officer must file a private written complaint under
Section 22 of the M.M.D.R. Act or Section 55 of the Wild Life
Act before the competent Magistrate. (The authorized officer
may rely upon the evidence collected during the police
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investigation when filing such a complaint).
9. In light of the legal position settled by the Hon’ble Supreme
Court, this Court partly allows the present applications.
9.1. The proceedings arising out of C.R. No. I-47 of 2007, dated
19.05.2007, registered with the Kalyanpur Police Station, Jamnagar,
so far as they pertain to offences under Sections 4(1), 4(1A), and
21/25 of the M.M.D.R. Act, 1957 and Sections 27(1) and 29 of the
Wild Life (Protection) Act, 1972, are hereby quashed and set aside to
the extent of police charge-sheet proceedings.
9.2. However, the liberty is reserved to the authorized officers
under the M.M.D.R. Act and the Wild Life Act to institute
appropriate written complaints before the jurisdictional Magistrate in
accordance with Section 22 of the M.M.D.R. Act and Section 55 of
the Wild Life Act.
9.3. The prayer to quash the FIR qua offences under Sections 379
and 114 of the Indian Penal Code, 1860 is rejected. The Trial Court
shall proceed for the offences under the IPC in accordance with law.
10. Rule is made absolute to the aforesaid extent. Direct service is
permitted.
(P. M. RAVAL, J)
NITIN MAKWANA
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