Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1367 (JHR)

Bishnu Chandra Choudhary v. State of Jharkhand

2009-11-04

R.R.PRASAD

body2009
Order This writ application has been filed for quashing the entire criminal proceedings of Potka P.S. Cease No. 28 of 2003 (G.A. No. 1065 of 2003) including the order dated 5.11.2004 whereby and where under cognizance of the offences has been taken against the petitioners under Sections 379, 411 of the Indian Penal Code and also under Section 4/21 of the Mines and Minerals (Development and Regulation) Act (hereinafter referred to as the 'MMDR Act'). 2. The facts giving rise this application are that the then Executive Magistrate, East Singhbhum. Jamshedpur made a written complaint to the Officer-in Charge, Potka Police Station alleging therein that the petitioner no. 1, Bishnu Chandra Choudhary has been getting the Pyroxinite stone mined illegally from Dandugoda Mines which is being crushed in the crusher machine of petitioner no. 2. Pankaj Kumar Mandai and thereafter the same is being supplied to TISCO. On the basis .of said information, Potka Police Station Case No. 28 of 2003 was instituted under Sections 379 and 411 of he Indian Penal Code and also under section 4/21 of the MMDR Act. Upon lodgment of the case, Assistant Mining Officer, East Singhbhum, Jamshedpur directed the Chief Procurement (Raw Material), TISCO. Jamshedpur to stop taking supply immediately as that mineral is being supplied after extracting it illegally. Upon it, Chief Procurement Officer (Raw Material). TISCO asked the petitioner's firm, namely, M/s Jaiswal Minerals Product to stop supply of the said materials. Meanwhile, Director, Mines. Jharkhand took objection to the act of the Assistant Mining Officer as he was not competent to get mining operation stopped without permission of the State Government. In that context, even the Deputy Secretary to the Government wrote to the Deputy Commissioner, East Singhbhum, Jamshedpur not to act upon the letter of the Assistant Mining Officer as Assistant Mining Officer does not have right to stop mining operation without there being permission of the state Government. Meanwhile. Investigating Officer seems to have sent two samples of the Pyroxinite stone before the Director General, Geological Laboratory for its examination. On being tested, sample 'A' was found to be waste material whereas sample 'B' was found to be Pyroxinite but, according to the report, it had been mined from the mines which had been leased out to the petitioners and. On being tested, sample 'A' was found to be waste material whereas sample 'B' was found to be Pyroxinite but, according to the report, it had been mined from the mines which had been leased out to the petitioners and. therefore, Investigating Officer, keeping in view the said report, submitted final form exonerating both the petitioners from the charges, still the learned Magistrate took cognizance of the offences as alleged. 3. Being aggrieved with that, this writ application has been filed. 4. Learned counsel appearing for the petitioners submits that though the petitioners were alleged by the informant to have mined Pyroxinite stone illegally but on its verification, one of the sample was found to be waste product whereas the other sample, though was found to be Pyroxinite stone but that had been mined from the mines lease of which had been given to the petitioner no. 1 and in that view of the matter, no offence whatsoever is made out either under Section 379 or under Section 411 of the Indian Penal Code or even under Section 4/21 of the MMDR Act but the learned trial court took cognizance of the offence though no material whatsoever is there showing culpability of the petitioners and, therefore, any order taking cognizance of the offence can certainly be said to have been passed without application of mind and hence, the entire proceeding including the order taking cognizance is fit to be quashed. 3. However, learned counsel appearing for the respondents submits that the allegation does constitute offence not only under Sections 379, 411 of the Indian Penal Code but also under Section 4/21 of the MMDR Act and hence, it would not be a fit case for quashing of the entire criminal proceeding. 4. Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that though the first information report was lodged against the petitioners on the allegation that the petitioner no. 1 has indulged himself in getting Pyroxinite extracted from a mine illegally but in course of investigation, the sample which had been collected by the Investigating Officer was sent for its examination before the Director General, Geological Laboratory. 1 has indulged himself in getting Pyroxinite extracted from a mine illegally but in course of investigation, the sample which had been collected by the Investigating Officer was sent for its examination before the Director General, Geological Laboratory. On being tested, one of the samples was found to be waste product whereas other sample though was found to be Pyroxinite stone but that stone had been said to have been mined from a mine belonging to the petitioners and on this background, the petitioners can never be said to have committed any offence under Sections 379, 411 of the Indian Penal Code or under Section 4/21 of the MMDR Act. 7. Even otherwise entire prosecution is bad on account of the fact that allegation of extracting mineral is a subject matter of special legislation and even punishment has been prescribed under Section 22 of the Mines and Minerals (Development and Regulation) Act which reads as follows:- "Cognizance of offence.-No Court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorized in this behalf by the Central Government or the State Government." 8. Under that situation, the provision as contained in special legislation will certainly take precedence over the general punishment prescribed under the Penal Code and as such, provision of the Penal Code would have no application in the matter of mining of mineral, rather it would be the subject matter of the Mines and Minerals (Development and Regulation) Act, cognizance of which can only be taken upon the complaint lodged by the person authorized in this behalf by the Central Government or the State Government which proposition of law has been laid down by this Court in a case of B. Muthuraman and Others vs. State of Jharkhand [ 2009(3) JLJR 724 ]. Admittedly, the prosecution has never been initiated on a complaint by a person authorized by the Central Government or the State Government. Thus, on this count also the entire proceeding including the order taking cognizance of the offence gets vitiated. 9. Thus, the entire proceeding of Potka Police Station Case No. 28 of 2003 (G.R. No. 1065 of 2003), pending in the Court of Judicial Magistrate, Jamshedpur including the order dated 5.11.2004 taking cognizance of the offence is hereby quashed. 10. In the result, this application is allowed.