SRI DIWAKAR SHETTY vs STATE OF KARNATAKA

Court
Karnataka High Court

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CRL.P No. 4090 of 2019
C/W CRL.P No. 4807 of 2020


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 15 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

CRIMINAL PETITION NO. 4090 OF 2019

(482(Cr.PC) / 528(BNSS)

C/W

CRIMINAL PETITION NO. 4807 OF 2020

(482(Cr.PC) / 528(BNSS)



IN CRL.P No. 4090/2019


BETWEEN:

SRI DIWAKAR SEHTTY
AGED 49 YEARS,
SON OF LATE SHEENAPPA SHETTY,
RESIDING AT UPPUNDA
BYNDOOR, KUNDAPURA TALUK,
UDUPI DISTRICT - 576 232.
…PETITIONER





Digitally signed
by DEVIKA M
Location: HIGH
COURT OF
KARNATAKA

(BY SRI. P.P. HEGDE, SENIOR ADVOCATE FOR
SRI . KEDARNATH K. HANDAL, ADVOCATE)
AND:

1. THE STATE OF KARNATAKA
THROUGH THE POLICE SUB INSPECTOR,
KOTA POLICE STATION,
KOTA, KUNDAPURA,
UDUPI DISTRICT.
REPRESENTED BY THE SPP,

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HIGH COURT OF KARNATAKA
BENGALURU – 560 001.

2. SRI. T.R. JAISHANKAR
DEPUTY SUPERINTENDENT OF POLICE,
UDUPI SUB DIVISION,
UDUPI DISTRICT – 576 101
…RESPONDENTS
(BY SRI. SUHAS GOWDA M., HCGP FOR R1 & R2)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO
QUASH THE FIR IN CRIME NO.48/2019 OF KOTA POLICE
STATION, KUNDAPURA, UDUPI DISTRICT, REGISTERED FOR
THE OFFENCES P/U/S 5(2)(eea),9B(1)(b)OF THE EXPLOSIVES
ACT AND UNDER SECTION 5 OF THE EXPLOSIVE SUBSTANCES
ACT AND RULES 113 OF THE EXPLOSIVES RULES AND
SECTION 379 R/W SECTION 34 OF IPC AND PENDING ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
KUNDAPURA AND ETC.,

IN CRL.P NO. 4807/2020
BETWEEN:
SRI DIWAKAR SHETTY
AGED 49 YEARS,
S/O LATE SHEENAPPA SHETTY
R/AT UPPUNDA BYNDOOR
KUNDAPUR TALUK
UDUPI DISTRICT – 576 232
...PETITIONER
(BY SRI. P.P HEGDE, SENIOR ADVOCATE FOR

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SRI. KEDARNATH K. HANDRAL, ADVOCATE)

AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU – 560 001

2. SRI. GOWTHAM SHASTRI,
ADULT,
GEOLOGIST,
THE MINES & MINERALS DEPARTMENT,
UDUPI – 576 014
(DELETED AS PER ORDER DATED 11.02.2021)
...RESPONDENTS
(BY SRI. SUHAS GOWDA M., HCGP FOR R1 & R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE PROCEEDINGS IN C.C.NO.2280/2019 (ARISING
OUT OF PCR NO.241/2019) PENDING ON THE FILE OF THE
COURT OF ADDITIONAL CIVIL JUDGE AND JMFC KUNDAPURA
AND ETC.,
THESE PETITIONS, COMING ON FOR PART-HEARD-IN
HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER



Heard learned counsel for the petitioner and also the
counsel appearing to the state. In both the petitions,
petitioners are the same and also in respect of the same
incident, but invoked the different provisions and bar laid down
in the special enactment and hence considered both the
petitions together.
In Crl.P.No. 4090/2019
2. In this petition, a prayer is sought for quashing of the
FIR in respect of the Crime No.48/2019, Kota Police Station,
Kundapur Taluk, Udupi District, wherein offences are invoked
under Section 5(2)(eea) 9B (1)(b) of the Explosives Act, 1884
and under Section 5 of the Explosives Substances Act, 1908
and Rules 113 of the Explosive Rules, 1983 and section 379
read with section 34 of IPC, and matter is pending before the
Additional Civil Judge, Kundapura and so also praying this
Court to quash the mahazar dated 22.03.2019 in the very same
crime and grant such other relief, as deems fit in the
circumstances of the case.

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3. The factual matrix of the case of the prosecution is
that while invoking these offences, on credible information
received on 22.03.2019, the police received the information
that illegal quarrying is going on, using the explosives to do the
quarry work and accordingly went and conducted the raid and
found there was Hitachi operator, tipper lorry driver and two
other persons who ran away from the spot and found that a
hole was being dug into the rock and immediately went to the
spot and seized the instruments and also the tractor, Hitachi
and other instruments used in the illegal quarrying, including 5
detornators and prepared the spot mahazar in the presence of
the witnesses at the spot on 22.03.2019 between 14:15 hours
to 17:15 hours. Thereafter, police came back and registered
the case invoking the above mentioned offences. Hence, the
present petition is filed before this court.
4. The main contention of the counsel appearing for the
petitioner is that this is a clear violation of the procedure in
registering the case. The counsel would vehemently contend
that when the offences are committed, that offences are
cognizable offences, ought to have registered the case and then

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should have proceeded to seize the articles, but the very
seizure of articles by drawing up of the mahazar, prior to
registration of the case is illegal without the same and it is
liable to be quashed.
5. Learned counsel also vehemently contended that the
very registration of the FIR and the proceeding against the
petitioner is illegal. The counsel in support of this argument
also relies upon the judgment reported in 2012 SCC Online
Karnataka 8923 and counsel brought to notice of this court
discussion made in paragraph No.35, wherein, detail discussion
is made that the entire proceedings made to conduct seizure
panchanama, even without registering the cases as required
under Section 154 of Cr.P.C., is illegal, contrary to law and is
in violation of the mandatory provisions of the Cr.P.C., and the
act on the part of the police officer concerned is nothing but an
act, which could be termed as abuse of the process of law.
6. The counsel also relies upon the judgment of this
Court passed in Criminal Appeal No. 744/2013 reported in
2025 SCC Online Karnataka 2193 in between the parties
Yathisha and State of Karnataka and counsel brought to

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notice of this Court, this court discussed in detail the Judgment
of the Apex Court of Lalita Kumari vs. Government of Uttar
Pradesh and others reported in (2014) 2 SCC 1 ,
if it is a case of
cognizable offence, it is bound and duty of the IO having
received the information to register the case and there is no
option to the IO to register the case and hence this Court in
detail had taken note of, in these judgments and allowed the
appeal and set aside the same in a case of offence under
Section 396 of Cr.P.C and hence prayed this Court to quash the
proceedings.
7. In Criminal Petition No.4807/2020 prayer is sought for
quashing of the CC No. 2280/2019 wherein a private complaint
is entertained in PCR No.241/2019. The trial court took the
cognizance for the offences under the MMRD Act and also
invoking the Rule 44 of Karnataka Minor Minerals Concession
Rules 1994. Learned counsel would vehemently contend that
while invoking the private complaint, though it is stated about
this petitioner involvement is concerned and only on suspicion
that he is running a quarry, case is registered and counsel
brought to notice of this Court the statement of witnesses,

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which was recorded and having conducted the ride and none of
the witnesses speaks about the role of this petitioner. The
counsel would vehemently contend that even lorry does not
belong to this petitioner and nothing is placed on record to
show the involvement of this petitioner and taking of
cognizance for the special enactment is also erroneous. The
same is also in respect of the very incident of conducting the
raid is concerned, hence prays this Court to quash the
proceedings.
8. Per contra, learned counsel appearing for the
respondent in respect of the Crl.P.No.4090/2012 is concerned,
brought to notice of this Court that only information was
received and hence question of registration of the case does
not arise, and only having inspected the spot came to know
about the involvement of this petitioner. Hence, having found
the vehicle, wherein the quarry work was going on and loading
the same in the lorry, seized the lorry, tipper and tractor and
even conducted the mahazar, and made the list of articles
which were found in the complaint itself and details was given,

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case is registered after visiting the spot and found and
conducting the mahazar and case is registered at 07:30 p.m.
9. Learned counsel would vehemently contend that the
principles of Lalitha Kumari case is not applicable to the case
on hand when he has received the information, he has not got
it confirmed the incident of cognizable offence is concerned,
only having inspected the spot and also found the quarry work
was going on and found that the tractor and other vehicles and
also quarry work was going on and some of them have ran
away from the spot and registered the case and came to know
about this petitioner that he was conducting the quarry from
last over 2 years without any license. Thereafter, registered
the case and when the case was registered, investigation is not
yet completed and the petitioner has approached this court for
quashing of the FIR and also quashing of the mahazar which
was conducted and charge sheet is not yet filed in the case on
hand. Hence, there cannot be any quashing of FIR, when the IO
who conducted the ride and got it confirmed the same, only
after inspecting the spot and found the quarry work was going
on and he came back and registered the case and hence there

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cannot be any fault on the part of the IO in proceeding and
hence the principles laid down in the judgment referred supra
are not applicable. The judgment which was relied upon by the
counsel is of the year 2012 i.e. prior to the judgment of Lalitha
Kumari case and subsequent judgment relied upon by the
counsel appearing for the petitioner is in respect of
consideration of the Criminal Appeal and hence while invoking
Section 482 of Cr.P.C., the scope of 482 of Cr.P.C., is very
limited and not the scope of appreciation of evidence as done
by this Court in Criminal Appeal, the Judgment relied upon by
the Counsel appearing for the petitioner.
10. In respect of Criminal Petition No.4807/2020 counsel
would contend that in order to invoke the Special Enactment,
since there is a bar under Section 22 of the MMDR Act, the
private complaint is filed and it is settled, also case can be
registered and investigate but the Court cannot take the
cognizance under Section 22 under the Special Enactment and
there is a bar and hence private complaint is filed.

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11. The Counsel also brought to notice of this Court
specific averment made in the complaint, particularly in
paragraph No. 3 regarding involvement of this petitioner that
this petitioner is running the quarry work, without any license
and also specific averment made in the complaint that raid was
conducted on 22.03.2019, on credible information and in order
to invoke the special enactment only, private complaint is filed.
12. The counsel also brought to notice of this Court that
while filing the private complaint statements of witnesses were
relied upon and also the trial Court while taking the cognizance,
considered the material on record and particularly taken note of
the averments made in the complaint and the documents
produced by the complainant and witnesses have been cited in
the complaint who were are public servants and filed this
complaint acting in discharge of official duties and their sworn
statement is also dispensed with. The trial Court applied its
judicious mind while considering the same and Court is satisfied
that complainant has placed substantial material to take the
cognizance and order has been passed. Hence question of

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entertaining the petition under Section 482 of Cr.P.C., doesn't
arise.
13. Having heard the petition of counsel and also the
counsel appearing to the respondent and also the grounds
which have been urged in both the petitions, the point that
would arise for the consideration of this court are,

(1) Whether the petitioner has made out the ground in
to quash the FIR in Criminal Petition No.4090/2019
proceedings?

(2) Whether the petitioner has made out the ground to
quash the CC and also taking up of cognizance as
prayed?

(3) What order?
14. Point No.1 - Having considered the factual aspects
of the case and these two cases are arising out of in respect of
the same incident, that is on credible information raid was
conducted on 22.03.2019 and seized the vehicles at the spot
and also articles, which were used for the quarry purpose and
no doubt the main contention of the petitioner counsel that

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there cannot be any mahazar prior to the registration of the
case. But in the case on hand, court has to look into the
contents of the complaint, which is given to the police, dated
22.03.2019. The contents of the complaint is very clear that
the police who have conducted the raid given the written
report having conducted the ride and found the articles, along
with details which were seized in the quarry and also specific
averment is made that this petitioner was indulged in such act
and running the quarry from last two years without license.
No doubt the complaint is given at 07:30 p.m., along with the
seized articles list and offences invoked against the petitioner
is also under Section 5(2)(eea) 9B (1)(b) of the Explosives
Act, 1884 and under Section 5 of the Explosives Substances
Act, 1908 and Rules 113 of the Explosive Rules, 1983 and
section 379 read with section 34 of IPC. It is important to
note that, when the quarry work was going on without any
license, in the complaint not included the provisions of MMRD
Act, since the separate provision is also envisaged under the
Act to take the initiative. The Court has to take note of the
mahazar which was conducted as contended by the counsel

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that before the registration of the case, mahazar was
conducted. But in the case on hand, it has to be noted that
relief is sought for quashing of the FIR and Mahazar and not
the filing of the charge sheet and yet to complete the
investigation and file the charge sheet. When such being the
case, and also the very complaint is very clear that on
information went to spot and the raiding party was not having
the specific information, except the quarry work is going on
and no credible information of cognizable offence. Only
information is received that quarry work is going on without
license and hence went to spot and conducted the raid and
found that the articles which have been mentioned in the
complaint itself, along with the articles which were seized,
complaint is given. When such being the case, the very
contention of the counsel that this court has to invoke 482 of
Cr.P.C., does not arise. The scope of 482 of Cr.P.C., is very
limited and only if any abuse of process, which leads to
miscarriage of justice then only court can exercise the powers.
But in the case on hand, having received the information went
to spot and found the quarry work was going on without any

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license and when illegal act was going on and raid was
conducted and found the articles at the spot, mahazar was
conducted and then came back and gave the complaint along
with the seized articles and also vehicle Hitachi, tractor was
also found. Hence, case is registered and investigated and not
yet completed the investigation. When such being the case,
the judgment of the Apex Court is very clear in a Dinesh Bai
Chandu Bai Patel Vs the State of Gujarath reported
in 2018 (3) SCC 104 case is concerned in 2018, Court has
to take note of only contents of the complaint when quashing
the FIR not other than any other material. Whether it discloses
the offence has been committed and when on perusal of the
material when offence is committed, invoke the provisions
under the Explosives Act and also the Rules and also the
offence under Section 379 and Court also should not venture
to quash the FIR and allow the Investigating Officer to unearth
the truth and also investigating officer can file either A report
or B report. When such being the case, when the law is very
settled, there cannot be any quashing of proceedings. Only to
look into the whether such offence does constitute an offence

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and there cannot be any validity with regard to the same and
it is the domain of the IO to investigate and file the charge
sheet. But the counsel would vehemently contend that even
mahazar was also done. But when the offence was brought to
the notice of the raiding party and went and found the same
and also found the articles and immediately they have to
conduct the mahazar also and the same has been done and
regarding legality and its validity under Section 482, cannot
be looked into and hence the scope of this Court with regard
to the quashing of FIR is very limited.
15. Hence, I do not find any force in the contention of
the counsel appearing to the petitioner. But also the judgment
rendered by this Court in the appeal having appreciated the
evidence available on record and then disposed of the matter
on appreciation of the evidence available on record and in a
proceedings under Section 482 of Cr.P.C., the defence as well
as the evidence cannot be looked into by the Court and hence
the very contention of the counsel cannot be accepted and
hence answered the point as Negative.

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16. The competent authority has filed a complaint before
the trial Court and the same is done in view of the very
provisions under Section 22 of the MMRD Act and Section 22 is
very clear that the police cannot take cognizance and Court can
only take cognizance on the private complaint and this
complaint is also filed only in respect of the offences under the
MMRD Act. While filing the complaint also relied upon
statement of witnesses and also complainant by being a
Government official, dispensed the sworn statement and so
also the statement of witnesses others who are the part of
conducting of the raid and other officials. When such being the
case and even trial Court also while taking cognizance a
detailed order has been passed looking into the contents of the
complaint, as well as statement and documents which have
been relied upon.
17. When such procedure is adopted the same is also in
accordance with law. Also counsel would vehemently contend
that petitioner is not involved in such act and the same is a
matter of trial and the court cannot look into the defence,
which have been raised that he is not the owner and vehicle

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also not belongs to him, his involvement is not found, cannot
be accepted and information received that he is running a
quarry without obtaining any license and also mahazaz was
conducted and seized the articles found at the spot and when
such material considered while taking cognizance, only based
on the statement of witnesses and also the contents of the
complaint and documents and the same has been done.
18. Hence, I do not find any force in the contention of
the petitioner. The counsel appearing to the petitioner would
vehemently contend that this petitioner is outside the
jurisdiction of the court, wherein private complaint is filed.
19. But here is a case that the incident was taken place
within the jurisdiction of the court, and Court has to take note
of the incident which was taken place within the jurisdiction of
the Court and the quarry work was going on within the
jurisdiction of the Court only and also the witnesses who have
been examined before the Court are also the official witnesses
and the sworn statement of the complainant, as well as other
witnesses is dispensed being that they are the government
witnesses and not conducted any recording of sworn statement

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before the trial court. In case of recording of sworn statement,
if such recording of sworn statement found that the petitioner is
residing outside, then court can make further enquiry under
Section 202 of Cr.P.C.,. Such circumstances is not warranted in
the case on hand. Since based on the material already collected
during the course of investigation, in respect of the other
offences under Explosives Act and considering the statement of
witnesses, which have been part and parcel of the private
complaint and the same is also permitted and Court can make
use of the material and only on account bar is in respect of
invoking of the police jurisdiction registration of the case,
private complaint is filed and no enquiry is conducted before
the court and hence contention of the court that no complaint
under section 202 Cr.P.C, does not arise.
20. But when the specific bar is under Section 22 of the
MMDR Act, private complaint is filed and made use of the
material which were collected by the police when the case has
been registered and those materials can be considered by the
Court, while issuing the summons and taking the cognizance.
Hence, the very contention of the petitioner counsel cannot be

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accepted, with regard to the invoking of Section 202 of Cr.P.C.,
also and hence I do not find any force in the contention of
petitioner counsel, to quash the proceedings. In view of the
discussions made above, I proceed to pass the following order,

Both the petitions are dismissed .




Sd/-
(H.P.SANDESH)
JUDGE



AKV
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