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2011 DIGILAW 586 (JHR)

Md. Abrar Alam v. State of Jharkhand

2011-07-01

PRAKASH TATIA

body2011
JUDGMENT Prakash Tatia, ACJ. 1. By Court.--Heard learned counsel for the parties. 2. The petitioners have challenged even registration of the First Information Report of Markaccho PS Case No. 20 of 2010, which was lodged against the petitioners and other 28 accused persons for the offence under Sections 379. 413 and 340 of the Indian Penal Code as well as under Rule 67(1) of the Jharkhand Mines and Mineral Concession Rules. 2004. 3. The learned counsel for the petitioners submitted that the said FIR has been registered on the information furnished by an unauthorized person and in view of Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957. no Court can take cognizance of any offence punishable under the Act of 1957 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. It is submitted that not only this, in the Jharkhand Minor Minerals Concession Rules, 2004 specific provision has been made for unauthorized excavation of mines, providing for imposition of penalty as also providing for punishment and. therefore, in view of those provisions, action under Section 379, 413 and 340 of the Indian Penal Code cannot be taken. Learned counsel for the petitioners also relied upon Section 5 of the Code of Criminal Procedure, 1973. which is a saving clause, which says that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 4. I have considered the submission of the learned counsel for the petitioner and perused the facts of the case. The offence under Sections 379 and 413 are cognizable offence, punishable under the Indian Penal Code. Therefore, an FIR can be lodged by anybody. So far Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 is concerned, that is applicable only to the offence punishable under the Act, meaning thereby, the offence, punishable under the Mines and Minerals (Development and Regulation) Act, 1957 and not applicable to the offence, punishable under the Indian Penal Code. Section 5. So far Section 22 of the Mines and Minerals (Development and Regulation) Act, 1957 is concerned, that is applicable only to the offence punishable under the Act, meaning thereby, the offence, punishable under the Mines and Minerals (Development and Regulation) Act, 1957 and not applicable to the offence, punishable under the Indian Penal Code. Section 5. Cr PC, also has no application to the present case, in view of the fact that it is a saving clause made in the Code of Criminal Procedure which only save the action taken or law which are in force and which are not contrary to the provisions made in the Code of Criminal Procedure, 1973. There is no conflict in the Code of Criminal Procedure with any provision made in the Act of 1957 or Rules of 2004 because Code of Criminal Procedure prescribes for criminal trial and for the offence which are punishable as criminal cases and in the present matter offence alleged to have been committed under Sections 379 and 413, IPC and for that there is no procedure prescribed under the Act of 1957 for trial of those offence. 5. I do not find any force in the submission of the learned counsel for the petitioners that since separate procedure has been prescribed for punishing the offender, who indulged in excavating mines and, therefore, the offence cannot fall under Section 379, IPC. The offence of theft is well defined offence and a penalty prescribed in any special law cannot make the provisions of the Indian Penal Code inapplicable, when it constitutes a criminal offence, punishable under the provisions of the Indian Penal Code. 6. In view of the above reason, I do not find any merit in this application, which is, accordingly, dismissed. Application dismissed.