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2012 DIGILAW 228 (JHR)

Ashish Dalmia v. State of Bihar

2012-02-14

PRASHANT KUMAR

body2012
Judgment Prashant Kumar, J.-This application has been filed for quashing of F.I.R. in connection with Rajmahal P.S. Case No.161/98 dated 11.8.1998 under Sections 419, 420, 467, 471, 379, 295, 120B of the Indian Penal Code and Section 40 of Mines Act and Section 4(1) of Mines and Minerals (Regulation & Development) Act, 1957. 2. It appears that informant (Assistant Mining Officer, Sahebganj) had filed written report alleging therein that petitioner no. 3 namely M/s Rajmahal Quartz$ and and Kaolin Company had been given lease for extracting china clay. It is further alleged that within the leasehold area of petitioner no. 3, a Monument namely, Baradwari situate. It is stated that said Monument had been declared as ancient monument under Ancient Monuments and Archaeological Sites and Remains Act, 1958 (herein after refer as Ancient Monuments Act). It is then stated that according to the provisions of the Ancient Monuments Act, petitioner no. 3 is prevented from carrying out mining work within the distance of 300 meters from aforesaid monument. But petitioner no. 3 was carrying mining work within that area, which is illegal. It appears that on the basis of aforesaid allegation, Rajmahal P.S. Case No. 161/98 instituted under Sections 19, 420, 467, 471, 379, 295, 120B of the Indian Penal Code, Section 40 of Mines Act and Section 4(1) of Mines and Minerals (Regulation & Development) Act, 1957. 3. It is submitted by learned counsel for the petitioners that admittedly, petitioner no. 3 (firm in question) is a mining leaseholder, thus, it cannot be said that firm indulged in illegal mining. It is submitted that even if allegations are taken to be true no offence under Indian Penal Code, Mines Act and Mines and Minerals (Regulation & Development) Act is made out. It is submitted that at best offence under Section 30(1)(iv) of Ancient Monuments Act is made out. It is submitted that offence under Section 30(1)(iv) of the Ancient Monuments Act is non-cognizable offence, therefore, police has no power to lodge' F.I.R. and start investigation. Accordingly, it is submitted that present F.I.R. is liable to be quashed. 4. Learned Addl. P.P. opposed aforesaid submission and submitted that apart from offence under the Ancient Monuments Act it is alleged that offences under Indian Penal Code, Mines Act and MMRD Act, which are cognizable. Thus, police rightly instituted F.I.R. 5. Accordingly, it is submitted that present F.I.R. is liable to be quashed. 4. Learned Addl. P.P. opposed aforesaid submission and submitted that apart from offence under the Ancient Monuments Act it is alleged that offences under Indian Penal Code, Mines Act and MMRD Act, which are cognizable. Thus, police rightly instituted F.I.R. 5. Having heard the submissions, I have gone through the records of the case. 6. From perusal of F.I.R. I find that petitioner no. 3 obtained lease for extracting china clay. It is also admitted that in the leasehold area of petitioners aforesaid Ancient Monument situates. The main allegation against petitioners is that they were carrying mining activities within the distance of 300 meters from the monument, which is prohibited under Ancient Monuments Act. Since, petitioner no. 3 is lessee holder of entire area, therefore, in my view, offences under Sections 419, 420, 467, 468, 479, 471, 379,295 and 1208 of the Indian Penal Code, Section 40 of Mines Act and Section 4(1) of MMRD Act are not made out against them. At best, in my view, offence under Section 30(1)(iv) of the Ancient Monuments Act is made out in which maximum punishment is two years or fine. According to Section 32 of Ancient Monument Act only offences under sub-clause (i) or Clause (iii) of sub-section (1) of Section 30 are cognizable offences. Thus, it can safely be held that other offences enumerated under Section 30 of the Act are noncognizable. It is specifically mentioned in Schedule-II of the Code of Criminal Procedure that if punishment prescribed in any special Act is less than three years or with fine then said offence is a noncognizable offence. Accordingly, I conclude that offence under Section 30(1)(iv) of Ancient Monuments Act is a non-cognizable offence. 7. As per Section 154 of the Code of Criminal Procedure police officer can lodge F.I.A. only with respect to cognizable offence Section 155 of the Code of Criminal Procedure' deals with non-cognizable offences. According to it if a police officer received information regarding non-cognizable offence then he shall enter said informant in a book kept by such officer and refer the information to the Magistrate. Subsection (2) of Section 155 of the Code of Criminal Procedure provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case. 8. Subsection (2) of Section 155 of the Code of Criminal Procedure provides that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case. 8. In the instant case, as discussed above, I find that no offences made out against the petitioner under the I.P.C., .Mines Act & MMRD Act. In my view only offence under Section 3(1)(iv) ...(sic30(1)(iv)?) of Ancient Monuments Act is made out against petitioner which is a non-cognizable offence. Under the said circumstance, police have no power to lodge F.I.A. Therefore, the same cannot be' sustained in this case. Accordingly, I allow this application and quash the F.I.R. in connection with Rajmahal P.S. Case No. case no. 161/98 dated 11.8.1998.