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2013 DIGILAW 549 (JHR)

Lalan Singh v. State of Jharkhand

2013-04-25

H.C.MISHRA

body2013
ORDER 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners are aggrieved by the order dated 21.12.2011 passed by Sri M.K. Tripathy, learned Judicial Magistrate 1st Class, Rajmahal, in G.R. No. 48 of 1999/Tr.No.1591 of 2011, whereby the application filed by the petitioners for discharge under Section 239 of the Cr.P.C., has been dismissed by the Court below finding that on the materials available on record, the offences are clearly made out against them under Sections 379, 411 of the Indian Penal Code and Rule 40 of the Bihar Minor Mineral Concessions Rules, 1972. 3. The facts of the case lie in a short compass. Two trucks were apprehended by the ASI of the police on 23.1.1999, which were found loaded with stone boulders. No document relating to the stone boulders was produced by the apprehended drivers of the trucks and the drivers of the trucks also informed that the stones were illegally mined by the petitioner Nos. 1 & 3, Lalan Singh and Rajeshwar Prasad Singh @ Rajeshwar Singh respectively, and the same were being carried to the crusher of the petitioner No. 4 Shanti Devi, who is also the wife of petitioner No. 3 Rajeshwar Prasad Singh. The petitioner No. 2 Najamadin @ Nizamuddin, is the driver of one of the apprehended trucks by the police. On the basis of the self statement of the ASI of police, FIR was lodged against the petitioners for the offences under Sections 379 and 411 of the Indian Penal Code as also under Rule 40 of the Bihar Minor Mineral Concessions Rules, 1972. 4. It appears that charge sheet has been submitted by the police after investigation and the cognizance was also taken. Subsequently, the petitioners filed the application under Section 239 of the Cr.P.C., for discharge, which has been rejected by the Court below by the impugned order. 5. Learned counsel for the petitioners has submitted that the cognizance taken against the petitioners and further proceeding in the Court below are absolutely illegal, inasmuch as, the present case is governed by a special statute and the special provisions have been laid down therein, and as such, no offence can be said to be made against the petitioners under the general provisions under Sections 379 and 411 of the Indian Penal Code. It has also been submitted that the prosecution has not been initiated against the petitioners as per the special statute, i.e., Section 22 of the Mines & Minerals (Development and Regulation) Act, 1957, which provides for filing of the complaint case by the competent authority and accordingly, the entire criminal proceeding against the petitioners are absolutely illegal and fit to be quashed. In support of his contention, learned counsel has placed reliance upon various decisions of this Court, in the cases of Ajay Krishna Tiwary Vs. State of Jharkhand, reported in 2006 (3) East. Cr. C. 50 (Jhr), Narayan Mahto @ Narayan Chandra Mahto Vs. State of Jharkhand & Ors, reported in 2006(4) JCR 218 (Jhr), Bhotna Mahto Vs. The State of Jharkhand, reported in 2009(2) JLJR 258, B. Muthuraman @ Balasubramanian & Ors. Vs. State of Jharkhand, reported in 2009 (3) JLJR 724 , Gulab Bhagat & Anr. Vs. Manarul Sheikh @ Haque & Anr, reported in 2012 (2) JCR 43 (Jhr), Pancham Singh Vs. State of Jharkhand & Anr., reported in 2013 (1) JCR 535 (Jhr), wherein, in the similar circumstances, criminal prosecution against the petitioners of those cases were quashed, holding that cognizance of the case on the basis of the police case was barred under Section 22 of the Mines & Minerals (Development and Regulation) Act,1957, and the offence shall not be governed by the general law under the Indian Penal Code. Learned counsel has accordingly, submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law, and it is a fit case for discharge of the petitioners. 6. Learned counsel for the State, on the other hand, has submitted that there is no illegality in the impugned order worth interference in the revisional jurisdiction, inasmuch as, the law is well settled in the case of Md. Abrar Alam & Ors. Vs. The State of Jharkhand, reported in 2011 (4) JCR 43 (Jhr). In the said case, in similar circumstance, it was held that offences under Section 379 and 413 of the Indian Penal Code are cognizable offences and punishable under the Indian Penal Code. Therefore, FIR can be lodged by anybody. Abrar Alam & Ors. Vs. The State of Jharkhand, reported in 2011 (4) JCR 43 (Jhr). In the said case, in similar circumstance, it was held that offences under Section 379 and 413 of the Indian Penal Code are cognizable offences and punishable under the Indian Penal Code. Therefore, FIR can be lodged by anybody. So far Section 22 of the Mines & Minerals (Development & Regulation) Act, is concerned, that is applicable only to the offences punishable under the said Act, and not applicable to the offences punishable under the Indian Penal Code. Section 5 of the Cr.P.C., also has no application to the case, in view of the fact that it is a saving clause made in the Code of Criminal Procedure, which only saves the action taken or law which are in force and which are not contrary to the provisions made in the Code of Criminal Procedure. It has been held that there is no conflict in the Code of Criminal Procedure with any provision made in the Mines & Minerals (Development & Regulation) Act, 1957, or Rules made there under. In the said case, the offence was alleged to have been committed under Sections 379 and 413 of the Indian Penal Code and for that there is no procedure prescribed under the Act of 1957 for trial of these offences. 7. The same view was followed by this Court in the case of Anil Khirwal Vs. State of Jharkhand, reported in 2013 (1) JCR 520 (Jhr), wherein, there was allegation against the petitioners to have committed theft in the lease hold mines of TISCO Ltd., and the case was instituted for the offences under Sections 379 and 411 of the Indian Penal Code and under Section 21 (1) (4) of the Mines & Minerals (Development & Regulation) Act, 1957, on the basis of the police case. This Court, considering the decision in Md. Abrar Alam’s case (supra), and finding that the provisions under the Act of 1957 were not dealing with the specific offence of theft, held that the offence was clearly made out against the petitioners under Section 379 of the Indian Penal Code, and the offence being cognizable offence, the criminal prosecution could be instituted on the basis of the FIR lodged by the police officer. 8. 8. Thus, from the discussions of the aforesaid decisions, it appears that there is conflict of opinions between the learned Single Judges of this Court, as all the decisions cited above are passed by the learned Single Judges. 9. The cases relating to the theft of minerals and minor minerals are in abundance in this State. There are umpteen numbers of cases in the State of Jharkhand relating to the theft of coal, iron ore and other minerals and minor minerals, in which the cases are only lodged on the police report. In this view of the matter, it is necessary that the law in this regard be well settled by a larger Bench, so that the same may be uniformly followed in all cases, also by the State machinery, in lodging the cases in accordance with law, so that all the prosecutions should not fall flat on the technical grounds only. I am of the considered view that law needs to be finally settled in this regard and in view of the conflicting decisions of the learned Single Judges, it would be appropriate that the law is finally settled by a larger Bench for future guidance. 10. Accordingly, let the matter be placed before the Hon'ble the Chief Justice for constituting a larger Bench for settling the law in this regard.