Research › Search › Judgment

Jharkhand High Court · body

2010 DIGILAW 358 (JHR)

Nagendra Nath Maity v. State Of Jharkhand

2010-03-19

DILIP KUMAR SINHA

body2010
JUDGMENT D.K. Sinha, J. 1. This Cr. Revision is directed against the order impugned dated 03.03.2009 passed by the S.D.J.M., Ghatsila by which the petition filed on behalf of the petitioners for their discharge for the alleged offence u/s 379 of the Indian Penal Code and Section 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004 arising out of Baharagora P.S. Case No. 61 of 2007 corresponding to G.R. No. 305 of 2007 was rejected and the petitioners were called upon to stand charged for the alleged offence. 2. The prosecution story in short was that the informant Mines Inspector of District Mines Office, Jamshedpur alleged against the petitioners by filing a written report before the Baharagora Police that they were found indulged in illegal mining and thereby causing theft in the State exchequer and they had violated the Rules 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. It was requested to take legal action against them and others indulged in such illegal activities. The informant in the written report identified the places from where the respective petitioner was conducting illegal mining and the quantity of the minerals extracted by them was also given in the written report before the police. 3. Learned Counsel appearing on behalf of the petitioners submitted that the petitioner No. 1 Nagendra Nath Maity was the lease holder of stone quarry situated in plot No. 1463/p, 1638/p for an area of 7.50 acres, at village Jharia within Ghatsila police station under a lease agreement with the Mining Department on payment of royalty and the lease was still valid. The Investigating Officer after investigation of the case submitted charge-sheet against the petitioners for the alleged offence u/s 379 of the Indian Penal Code as also under Rule 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. Accordingly, cognizance of the offence was taken for the alleged offence. 4. Raising the point of law, Mr. Nanda learned Counsel submitted that the rules provide maintainability of only complaint against the alleged offence u/s 4 read with Section 54 of the Jharkhand Minor Mineral Concession Rules, 2004 but in the instant case, the F.I.R. was lodged and after investigation charge-sheet was submitted against the petitioners for the alleged offence u/s 379 of the Indian Penal Code as also u/s 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004. Mr. Mr. Nanda further submitted that Section 379 of the Indian Penal Code being the general (penal) law cannot be attracted under the given facts and circumstances of the case on the face of the special law being the Jharkhand Minor Mineral Concession Rules, 2004 which contains penal provisions for the persons who contravenes the provisions of Rule 4 of Jharkhand Minor Mineral Concession Rules. It is well settled that special law shall prevail over the general law. The special law has been defined as a law applicable to a particular subject. It can well be elaborated that where there was a specific punishment provided in a Special Act it takes precedence over the general punishment under the penal code and where no specific punishment is provided under special law, general law under the penal code prevails only to the extent of the punishment part. 5. Advancing his argument, learned Counsel Mr. Nanda submitted that no details of the plot or Khata number have been given in the written report presented by the Mines Inspector before the police from where the petitioners had been extracting minerals or were allegedly found doing illegal mining and that nothing much less any quantity of minerals were seized from the possession of any of the petitioners. The Investigating Officer purposely concealed that the petitioner was a bona fide lessee to whom the lease was granted by the appropriate government for extracting stones from the defined area and it was not the allegation that he extracted beyond his lease hold limit. As regards petitioner No. 2 & 3 are concerned, the Counsel submits that they were not engaged in mining work rather they were the local business man having no concern with the mining work upon the area alleged by the informant in the written report Even the Investigating Officer did not care to record the statements of the petitioner No. 2 & 3 to find out their explanation to the allegations. The learned Judicial Magistrate without appreciating these aspects rejected the discharge petition of the petitioners which cannot be sustained under law. 6. Finally, learned Counsel submitted that the prosecution of the petitioners in the present form on the basis of the written report before the police by lodging F.I.R. is not maintainable and therefore, the petitioners may be discharged. 7. Heard learned A.P.P. as also the Counsel for the O.P. No. 2. 8. 6. Finally, learned Counsel submitted that the prosecution of the petitioners in the present form on the basis of the written report before the police by lodging F.I.R. is not maintainable and therefore, the petitioners may be discharged. 7. Heard learned A.P.P. as also the Counsel for the O.P. No. 2. 8. A counter-affidavit has been filed on behalf of the Opposite Party No. 2 controverting the contention as made on behalf of the petitioners. The learned Counsel submitted that the Deputy Commissioner, East Singhbhum, Jamshedpur vide his office order contained in memo No. 540 dated 23.02.2006 authorized the Mining Inspectors posted within territorial jurisdiction including the Opposite Party No. 2 to pay special attention and to take appropriate action for preventing illegal mining undertaken by the culprits in contravention of Rule 4 and Rule 54(1), (2), (3) & (7) of the Jharkhand Minor Mineral Concession Rules, 2004. The aforesaid orders authorized the Mining Inspectors to register the F.I.R. against the concerned persons/vehicle/vehicle owners for the violation of said rules at the concerned police station. The counter-affidavit further contained that the O.P. No. 2 was made in-charge of the mining area of Patmada, Bahragora, Ghatshila and Chakulia circle under the orders contained in memo No. 1922 dated 21.07.2006 of the Assistant Mining Officer, East Singhbhum, Jamshedpur. In view of the above, learned Counsel appearing for the O.P. No. 2 submitted that the police case against the petitioner by filing F.I.R. at the police station was maintainable in view of the executive instruction of the Deputy Commissioner, East Singbhum, Jamshedpur and therefore, the argument solely advanced challenging the maintainability of the F.I.R. cannot be sustained. The orders of the Deputy Commissioner, East Singbhum, Jamshedpur has been annexed as Annexure-A and the transfer order issued by the District Mining Officer has been brought on the record as Annexure-B. 9. The moot question that falls for consideration in the instant case is as to whether the executive orders issued by the Deputy Commissioner, East Singbhum, Jamshedpur shall prevail and will have overriding effect upon the Jharkhand Minor Mineral Concession Rules, 2004?. The moot question that falls for consideration in the instant case is as to whether the executive orders issued by the Deputy Commissioner, East Singbhum, Jamshedpur shall prevail and will have overriding effect upon the Jharkhand Minor Mineral Concession Rules, 2004?. It would be relevant to mention that Jharkhand Minor Mineral Concession Rules, 2004 was framed by the Government of Jharkhand under the Department of Mines and Geology vide notification No. 12 of 2002 and 1963/M dated 26th July, 2004 under the power conferred u/s 15 of the Mines and Minerals (Development and Regulation) Act, 1957 with the immediate effect which assumes status of rules, formulated for renewal of mining lease to check deforestation and ecological imbalance. 10. Rule 4 prohibits a person from undertaking any mining operation in any area except under and in accordance with the terms and conditions of a quarrying permit or, as the case may be a mining lease granted under the Rules, provided that nothing in this sub-rule shall affect any mining or quarrying operations undertaken in any area in accordance with the terms and conditions of a mining lease or quarrying permit granted before the commencement of these Rules. Further provision is that no quarrying permit or mining lease shall be granted otherwise than in accordance with the provisions of these Rules. However, Rule 57 speaks; - that no court inferior to that of a Magistrate of the first class shall try any offence punishable under these rules and no Court shall take cognizance of any offence under these Rules except a complaint made in writing by the competent officer or Deputy Director of Mines or Additional Director of Mines or Director of Mines or Collector or any other officer authorized by the Government either on written complaint or upon institution of the F.I.R. In the instant case the F.I.R. was instituted by the Inspector of Mines under the authority given by the Asstt. District Mines Officer and the Deputy Commissioner, East Singhbhum and therefore, the F.I.R. against the petitioners was maintainable. As regards their complicity for the alleged violation of the provision of rules 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004, the matter was investigated and the I.O. after investigation submitted charge-sheet. District Mines Officer and the Deputy Commissioner, East Singhbhum and therefore, the F.I.R. against the petitioners was maintainable. As regards their complicity for the alleged violation of the provision of rules 4/54 of the Jharkhand Minor Mineral Concession Rules, 2004, the matter was investigated and the I.O. after investigation submitted charge-sheet. I further find that having been subjectively satisfied with the materials on the record against the petitioners the learned Judicial Magistrate rejected the petition filed on behalf of the petitioners for their discharge. I find that the impugned order does not suffer from any infirmity or illegality and the learned Counsel appearing on behalf of the petitioners failed to show any convincing ground so as to call for interference in the impugned order. As regards the validity of lease of the petitioner No. 1 and the allegations as well as the materials collected against him in course of investigation of the case, he may produce his defence which may be considered without prejudice to this order. 11. In the facts and circumstances, the prosecution of the petitioners u/s 379 of the Indian Penal Code is not maintainable being the general law on the face of the penal provisions as contained in Rule 54 of the Jharkhand Minor Mineral Concession Rule, 2004 which is special law. 12. There being no merit, this petition is dismissed. Petition dismissed.