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Rajasthan High Court · body

1999 DIGILAW 1031 (RAJ)

Daulat Singh v. State of Rajasthan

1999-08-12

G.L.GUPTA

body1999
Honble GUPTA, J.–The petitioner through this misc. petition u/S. 482 Cr.P.C. seeks the quashment of the proceedings of criminal case no. 62 /97 pending in the Court of Additional Chief Judicial Magistrate, Begun u/S. 379 IPC and 4/21 of the Mines and Minerals Regulation & Development Act, 1957. (2). The brief facts. On the report of Shri Anil Kamthan, Nayab Tehsildar, Be- gun, that Daulat Singh had illegally mined at Khasra No.993 of Rawarda, a case u/S. 379 IPC and 4/21 of the M.M.R.D. Act, 1957 was registered on 3.2.97. The police, after investigation, submitted a challan. The learned Magistrate vide order dt. 26.8.97 framed charges u/S. 379 IPC and 4/21 of the M.M.R.D. Act, 1957 against the petitioner. Two prosecution witnesses have been examined in the case. (3). The contention of Mr. Champawat was two fold. One, the land from where the mining operation is alleged to have been done was in the possession of the pe- titioner, and therefore, offence u/S. 379 IPC cannot be said to have been committed by him. Two, the cognizance for an offence u/S. 4/21 of the M.M.R.D. Act could be taken on the complaint filed by a person, authorised under Sec.22 of the M.M.R.D. Act and as the Nayab Tehsildar was not the person authorised to make a complaint, cognizance could not be taken by the Magistrate. He pointed out that the Govern- ment vide notification dt. 10.6.92 had authorised the District Collector, Sub Divisional Officer and the Tehsildar to lodge complaint for an offence u/S. 21 of the M.M.R.D. Act and the Nayab Tehsildar was not authorised to lodge complaint. (4). The learned P.P.tried to support the order of framing charge and the proceedings pending against the petitioner. (5). I have considered the rival contentions of the parties. First, it is to be seen whether a charge u/S. 379 IPC could be framed against the petitioner on the material on record. (6). Though the petitioner was not the Khatedar of the land from where the mining operation was done, yet his case is that he had taken the land for cultivation from Khatedars Shivgopal Singh, Naresh Kumar and others and he was in lawful possession of the same. The statements of Shivgopal Singh and Naresh Khatedars of land bearing Khasra No. 993 recorded u/S. 161 Cr. The statements of Shivgopal Singh and Naresh Khatedars of land bearing Khasra No. 993 recorded u/S. 161 Cr. P.C., go to show that they had given the land to Daulat Singh for cultivation under oral agreement. Once it is the prosecution case that the petitioner was in possession of the land khasra No. 993 under an agreement from the Khatedars it will have to be accepted that the petitioner was in lawful possession of the land. (7). The next question to be considered is whether mining operation on that land amounted to an offence u/S. 379 IPC. The definition of theft under Sec. 378 IPC reads as under :- ``378. Theft-Whoever intending to take dishonestly any moveable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft. Explanation 1-A thing so long as it is attached to the earth, not being moveable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is served from the earth. x x x x x (8). The necessary ingredients of the offence of theft are : (1) there should be removal of the movable property, (2) the removal should be out of possession of any person, (3) the removal should be without the consent of that other person, and (4) the removal must be with dishonest intention. (9). The prosecution case is that there was stone quarry underneath the land, bearing khasra No. 933 and the petitioner severed stones by illegal mining. The definition of the moveable property is given in Section 22 of the I.P.C. which reads as under: ``22. Movable property - The words ``movable property are intended to include corporeal of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth. (10). It is obvious that land and things attached to earth or permanently fastened to anything, which is attached to the earth, do not come in the definition of movable property. In other words, the stone quarries which are attached to earth do not fall in the definition of movable property. Of course, when the stone is severed from the quarry, it becomes movable property and it will be capable of being the subject of theft. (11). In other words, the stone quarries which are attached to earth do not fall in the definition of movable property. Of course, when the stone is severed from the quarry, it becomes movable property and it will be capable of being the subject of theft. (11). In the instant case, it is not the prosecution case that the petitioner had removed the stones taken out from the quarry to any other place. As there was no removal of the movable property from its place, the necessary ingredient for the offence of theft is not there. The act of petitioner, therefore, cannot fall in the mischief of Sec.379 IPC. The learned Magistrate has obviously erred in framing a charge u/S. 379 IPC against the petitioner. (12). Coming to the charge of Sec.4/21 of the M.M.R.D.Act, 1957 it may be sta- ted that Sec. 22 of the Act provides that the Court can take cognizance of an offence under the Act only on the complaint by a person authorised in this behalf by the Central/State Government. The persons authorised by the State Government to file a complaint for an offence u/S. 21 of the Act are the District Collector, Sub Divisional Officer and Tehsildar on whom power has been conferred vide Government Notifi- cation dt. GSR 11 dt.10.6.1992. The learned P.P. during arguments could not produce a notification authorising Nayab Tehsildar to file complaints in the court. It is significant to point out that the statement of Anil Kamthan, Nayab Tehsildar has been recorded in the Court. He does not say that he was authorised to lodge complaint in such matters. It is evident from the record that Tehsil Begun was pre- sided over by Shri Chandra Bhushan, Tehsildar. Admittedly, the complaint was not filed by the persons authorised u/S. 22 of the Act of 1957. As such, the cognizance by the Magistrate could not be taken for offence u/S. 4/21 of the Act of 1957 on the report of the Naib Tehsildar. (13). There being merit in both the contentions of Mr. Champawat, the petition deserves to be accepted. (14). Consequently, the petition succeeds. The proceedings pending against the petitioner in the Court of A.C.J.M. Chittorgarh are hereby quashed.