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2012 DIGILAW 78 (PAT)

Kundan Kumar v. State of Bihar

2012-01-16

ADITYA KUMAR TRIVEDI

body2012
JUDGMENT Aditya Kumar Trivedi, J.-Cr. Misc. No. 14537 of 2010, Cr. Misc. No. 14626 of 2010, Cr. Misc. No. 14548 of 2010 are interlinked accordingly been heard together with the consent of the parties. 2. Cr. Misc. No. 14537 of 2010 has been filed for quashing of FIR of Naya Ramnagar P.S. Case No. 48 of 2010 registered under Sections 379, 405, 427, 420, 465, 468. 120B of the I.P.C., Sections 4,7 of Bihar Mineral Protection Concession Rule 1972, Sections 26, 33, 41, 42 of Forest Act. Section 4/40 of Bihar Minerals (Prevention Mining Transportation and Storage Act, 2003). Cr. Misc. No. 14548 of 2010 is for quashing of Munger Mufassil P.S. Case No. 52 of 2010 registered under the aforesaid Sections and Cr. Misc. No. 14626 of 2010 relates to quashing of Dharhara P.S. Case No. 43/2010 registered under the aforesaid sections. In all the above referred criminal miscellaneous, petitioners are Kundan Kumar, Vijayendra Dutta Mishra, Nitya Nand Das, forest officials. 3. From plain reading of the FIR of all the three cases, it is evident that Forest Officer, Munger had made some sort of disclosure vide letter No. 546 dated 17.02.2010 disclosing therein that local Mafiya are indulged in illegal mining within the Munger Forest Division for which no lease was granted. The S.P., Munger had issued direction vide Letter No.730/confidential dated 19.02.2010 to all the police station for taking appropriate steps in getting the illegal mining stopped at any cost. 4. So far averments of Naya Ramnagar P.S. Case No. 48 of 2010 is concerned, the Officer-In-charge had recorded his own fardbeyan disclosing therein that illegal mining was done near old quarry. Office of Forest Department lies few hundred yards therefrom and so he had opined that aforesaid illegal mining could not be facilitated unless there happens to be connivance of forest official. 5. In likewise manner the allegation has been levelled in Dharhara P.S. Case No. 43/2010 which was registered on the self-statement of Manoj Kumar Mahto, Officer in-charge, after visiting the spot west to Matadih Raghunathpur, found evidence of illegal mining. On query came to know that there happens to be connivance of forest official. 6. 5. In likewise manner the allegation has been levelled in Dharhara P.S. Case No. 43/2010 which was registered on the self-statement of Manoj Kumar Mahto, Officer in-charge, after visiting the spot west to Matadih Raghunathpur, found evidence of illegal mining. On query came to know that there happens to be connivance of forest official. 6. So far Mufassil P.S. Case No. 52 of 2010 is concerned, it happens to be on the basis of written report submitted by the I.O. Ram Naresh Singh of Mufassil P.S. disclosing therein that during course of inspection they have intercepted so many truck bearing Registration No. BR 10A 7226, BR 10G 1817, BR 1G 7912, BPI 4010, BHI 5811, WB 23B 1669, BR 52 4294, BR 108 7278, BR1GA 3556, BR 17G 5583, HR29D 3176, while two trucks managed to escape bearing registration No. BR14A 588, JH 12A 5720. The Truck drivers escaped there from. Subsequently, the Mining Inspector, Munger also arrived there before whom no lease was produced. However as per request of the Officer-in-charge, the report matter was inquired into and the forest official in connivance with the mafiya submitted report, to the effect that they all are possessed with document issued by leaseholder therefore, he found active involvement of forest official. 7. Contention on behalf of petitioners are that registration of three cases in one stroke at three different police station subsequent to direction of the S.P. communicated vide confidential letter No. 780 dated 10.02.2010 in the background of petitioner letter’s No. 546 dated 17.02.2010 highlighting the illegal mining by the local mafiyas has irked the local police official who on one pretext or other, got the petitioners involved on imaginary and flimsy grounds although at the time of inspection. So far Mufassil P.S. Case No. 52 of 2010 and Naya Ramnagar P.S. Case No. 48 of 2010 is concerned, neither query was being made nor presence of any of the petitioners was there. So far Dharhara P.S. Case No. 43 of 2010 is concerned, neither lease for quarry is granted by forest official nor has reported so. It is the Mining Department which grants the lease and permits. As requested by the Officer-in-charge. Forest Department got the matter inquired into and then reported that the challans whichever been produced should be verified from the mining department over its genuineness. The same happens to be part of writ petition. It is the Mining Department which grants the lease and permits. As requested by the Officer-in-charge. Forest Department got the matter inquired into and then reported that the challans whichever been produced should be verified from the mining department over its genuineness. The same happens to be part of writ petition. Therefore, the allegations on its face neither makes out any offence against the petitioners nor permit the petitioner to be dragged under litigation. Then submitted that it happens to be a malafide prosecution and its ground is itself apparent from the respective FIRs. As such, submitted that instant prosecution is fit to be quashed. Further submitted that though the petitioners have been named but neither their presence has been shown, nor being high officials, they are concerned with the day-to-day affairs. 8. The learned Additional P.P. fairly submitted that petitioners are highly placed forest officials and all the three FIRs did not attract their direct involvement. 9. In a case reported in AIR 1992 SC 604 , State of Hariyana & Ors. v. Bhajan Lal & Ors., the following critaries have been identified wherein quashing of prosecution is permissible and those are- "(1) Where the allegations made in the first Information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroveretd allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, on investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient grounds for proceedings against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 10. Taking into account the allegation in consonance with the parameters so prescribed by the Hon'ble Apex Court as referred above, it is apparent that further prosecution of petitioners will be nothing, rather simply an abuse of process of the Court, which should not be allowed to continue. Consequent thereupon all the three FIRs bearing Naya Ramnagar P.S. Case No. 48 of 2010, Dharhara P.S. Case No. 43/2010 and Mufassil P.S. Case No. 57 of 2010 followed with investigation is quashed. Thus, all the respective petitions are allowed. Petitions allowed.