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2007 DIGILAW 430 (JHR)

Avijit Ghosh v. State Of Jharkhand

2007-05-16

DABBIRU GANESHRAO PATNAIK

body2007
ORDER D.G.R. Patnaik, J. 1. Petitioners have invoked the powers of this Court under Section 482 of the Code of Criminal Procedure, praying for quashing the entire criminal proceeding pending against them before the Court of learned Sub-Divisional Magistrate, Lohardaga vide C 2 Case No. 1 of 1999, including the order of cognizance dated 17.11.1999, passed by the learned Court below, whereby cognizance for the offences under Sections 420, 409 and 120B of the Indian Penal Code was taken against them besides cognizance of the offence under Section 4/21(1) of the Mines and Minerals (Regulation and Development) Act. 2. The grounds in support of the prayer include, inter alia; (i) That the learned trial Court has passed the order of cognizance without application of judicial mind to the facts and circumstances of the case including the allegations in the FIR and has failed to consider that no offence under Section 420, IPC or 409, IPC or 120B, IPC is made out at all against the petitioners and further, that for violation of any of the provisions of the Mines and Minerals (Regulation and Development) Act, a penal provision is already contained in the said Act and as such, the case could not have been filed for any of the alleged offences under the Indian Penal Code. (ii) That though the present two petitioners have been cited as accused but according to the allegations in the complaint petition of the Opposite-Party No. 2, the offender is a company, namely, M/s. Indian Aluminium Company and in absence of any Act of offence attributed to either of the present petitioners, no offence whatsoever could be made out against them and neither could they be criminally prosecuted for any offence committed by the Company. (iii) That even if the offence under Section 4/21(1) of the Mines and Minerals (Regulation and Development) Act is sought to be made out, yet the offence being punishable to the maximum period of two years, cognizance of the offence could be taken within a period of three years as per the provisions of Section 468(2) of the Code of Criminal Procedure. Since in the instant case, the very complaint was filed at a belated stage and cognizance was taken more than four years after the alleged date of occurrence, the order of cognizance is bad on this ground also. 3. Since in the instant case, the very complaint was filed at a belated stage and cognizance was taken more than four years after the alleged date of occurrence, the order of cognizance is bad on this ground also. 3. Heard the learned Counsel for the petitioners and the State. 4. It appears that in response to the notice served upon him, the Opposite- party No. 2/complainant has filed his appearance through his lawyers and a petition for vacating the order of stay of further proceedings of the Court below was also filed on his behalf. After hearing the parties on the aforesaid petition, this Court vide the order dated 26.4.2000 had dismissed the petition of the opposite party No. 2 for vacating the order of stay. 5. For better appreciation of the grounds advanced by the petitioners, reference to the prosecution case briefly may be made. The case against the petitioners was registered on the basis of a complaint filed by the opposite party No. 2 in his capacity as the Assistant Mining Officer, Lohardaga on the allegations that the Mining lease in respect of 239.30 acres of land within the district of Lohardaga was granted to M/s. Indian Aluminium Company for enabling the Company to win and mine Bauxite and China Clay. The initial period of the mining lease was for fifteen years and after the lapse of the period, it was renewed for a further period of thirty years. It is alleged that since the month of September 1995, complaints were received by the complainant in the Mining Department that the company, namely, the Indian Aluminium Company has been damaging the village road. Seeking explanation in respect of the complaint, notice was served upon the company. The explanation was offered, was found not satisfactory. The complainant made an inspection of the working plant and site of the company on 5.10.1999 in presence of the petitioners and had found that a considerable portion of the Village road was damaged by the company in course of its mining operations. Contending that the damage caused to the Village Road was in violation of the conditions of the lease, thereby a violation of the provisions of Mines and Minerals (Regulation and Development) Act, the complaint was lodged. Contending that the damage caused to the Village Road was in violation of the conditions of the lease, thereby a violation of the provisions of Mines and Minerals (Regulation and Development) Act, the complaint was lodged. The learned Court below on considering the complaint petition and the allegations contained, therein, took cognizance of the offences mentioned above vide the impugned order, calling upon the petitioners to face trial. 6. Assailing the impugned order, learned Counsel for the petitioners elaborates the first ground, namely, that the petitioners cannot be made liable for any offence committed by the company, since the complaint petition does not specify that the petitioners are responsible for the Management and affairs of the company nor does it specify that the Company had authorized the petitioners to represent the company for all practical purposes including legal proceedings. Learned Counsel explains further that the complaint petition indicates at best that in respect of the plant site of the company, inspection was made by the complainant on a particular date in presence of the present petitioners, which could at best suggest that the petitioners were the mere employees of the company and nothing more. As regards the second ground, learned Counsel submits that even according to the entire allegations in the complaint petition, no offence under Section 409, IPC or 420, IPC or 120B, IPC is made out against the petitioners as because there is no allegation that the petitioners were entrusted with any property or that they have committed criminal breach of trust in respect of any property and likewise, there is no allegation that the petitioners in any manner committed acts of cheating causing loss to the Government exchequer or derived wrongful gain for themselves. Learned Counsel explains further that since the allegations in the complaint petition is based essentially on the ground that the company had violated the conditions of the Mining lease and therefore, violated the provisions of Mines and Minerals (Regulation and Development) Act, the said Act being a Special Act and having a penal provision within it, the proceedings could at best be guided and be continued only in accordance with the provisions of the Special statute and not in respect of any offence under the Indian Penal Code. As regards the third ground, learned Counsel explains that since the allegations against the company could at best be suggestive of the offences under the provisions of the Mines and Minerals (Regulation and Development) Act, which provides a maximum punishment of two years, the order of cognizance for the said offence is taken beyond the period of limitation provided under Section 462(2) of the Cr PC, is in itself bad and not sustainable. 7. From the perusal of the entire allegations against the petitioners in the complaint petition, it does appear that though the petitioners have been named as accused but the allegations do not specify that the petitioners are representatives of the company and authorized and declared as such by the company. In fact the designation of the petitioners has also not been specified and except the solitary statement that inspection of the Plant site of the company was made by the complainant in presence of one of the present petitioners. The allegations also do not indicate that the petitioners are in fact the representatives of the company and are liable for the acts and deeds of the Company. Furthermore, there is no allegation that the petitioners were actually found indulging in conducting mining operations within areas beyond the lease granted to the Company either in person or through any agent of their behalf. In absence of any specific allegation of involvement by either of the present petitioners in the alleged Act of causing damage to the public road or allegations relating to violation of the conditions of the mining lease and in absence of any specific statement that the petitioners were the authorized representative of the Company, petitioners cannot be made vicariously, liable for the offences committed by the Company and in this view of the matter, the criminal proceedings against them cannot be sustained. 8. It further appears that the thrust of the allegations is that by its acts and deeds, the Company had violated the conditions of mining lease granted to it and thereby had violated the provisions of the Mins and Minerals (Regulation and Development) Act. The Mines and Minerals (Regulation and Development) Act is apparently a Special Act, which contains a penal provision in respect of violation of the provisions of the said Act. The Mines and Minerals (Regulation and Development) Act is apparently a Special Act, which contains a penal provision in respect of violation of the provisions of the said Act. Since a Special Act is in existence the offences under the Indian Penal Code cannot be attracted in respect of the alleged violation of the provisions of the Act. 9. In this view of the matter also, the order of cognizance for the offence under Sections 409, 420, 120B of the Indian Penal Code cannot be sustained. Since this application can be disposed of on the basis of the above mentioned grounds alone, there does not appear any necessity for adverting to the third ground of limitation as advanced by the petitioners. For the reasons stated above, I find merit in this application. Accordingly, the same is allowed. The impugned order of cognizance dated 17.11.1999 as also the entire criminal proceeding, pending before the Court of Sub-Divisional Judicial Magistrate, Lohardaga vide C 2 Case No. 1 of 1999 is hereby quashed. Let the lower Court record be transmitted forthwith to the learned Court below.