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2013 DIGILAW 61 (JHR)

Anil Khirwal v. State of Jharkhand

2013-01-10

H.C.MISHRA

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ORDER H.C. Mishra, J. : Heard learned counsel for the petitioner and the learned counsel for the State. 2. This application is directed against the order dated 30.06.2004 passed by the learned S.D.J.M., Sadar at Chaibasa, in G.R. No. 361 of 2003, whereby the application filed by the petitioner under section 239 of the Cr.P.C., for discharge, has been rejected by the Court below, finding that there are sufficient materials on the record for framing charge against the petitioner. 3. The petitioner has been made accused in Noamundi P.S. Case No. 36 of 2003, corresponding to G.R. No. 361 of 2003, for the offence under sections 379/ 411 of the Indian Penal Code and Section 21(1) and 21(4) of the Mines and Minerals (Development and Regulation) Act, 1957 (herein after referred to as the ‘Act’). 4. According to the prosecution case, which was instituted on the basis of the self statement recorded by the Assistant Sub-Inspector of Police of Noamundi Police Station on 10.09.2003, two dumpers loaded with iron ore were apprehended in TISCO Mines area. The drivers of the dumpers managed to flee away and the dumpers were accordingly, seized. The petitioner being the owner of one of the dumpers has been made accused in this case, as the dumpers were found to be used for committing theft of the iron ore from the leased iron ore mines of the TISCO and the police case was instituted and investigation was taken up. It appears that after investigation the police submitted the charge-sheet against the petitioner and the cognizance of the offence under section 379 / 411 of the Indian Penal Code and Section 21(1) and 21(4) of the Act had been taken against the petitioner. The petitioner subsequently filed his application for discharge, under section 239 of the Cr.P.C., which was rejected by the Court below by the impugned order. 5. Learned counsel for the petitioner has submitted that no offence can be said to be made out under section 379 of the Indian Penal Code, in as much as, there is a special law relating to the minerals and if the offence is committed under the said special law the general law in the Indian Penal Code cannot be said to be applicable to the facts of this case. It has been further submitted by the learned counsel for the petitioner that Section 22 of the Act prohibits taking cognizance for any offence under the Act, except upon the complaint in writing made by the person authorized in this behalf by the appropriate Government. Accordingly, it has been submitted that since the prosecution has been instituted against the petitioner on the basis of the police report, the impugned order cannot be sustained in the eyes of law. 6. In support of his contention learned counsel for the petitioner has placed reliance upon an unreported decision of this Court in Pancham Singh Vs. State of Jharkhand and Anr., in Criminal Revision No. 312 of 2004, decided on 9.10.2012, wherein the case related to illegal mining of stones and morum which were used for construction of the road and the case was instituted for the offence under section 379 of the Indian Penal Code and Section 21 of the Act. In the facts of the said case, it was held that the offence was not made out under section 379 of the Indian Penal Code and the cognizance for the offence under the Act was barred, except upon the complaint in writing made by the person authorized in this behalf by the appropriate Government. Placing reliance on this decision learned counsel has submitted that the impugned order passed by the Court below cannot be sustained in the eyes of law. Learned counsel has also pointed out that in the present case also the offence cannot be said to be made out under section 379 of the Indian Penal Code, in as much as, Section 21(4) of the Act speaks about the raising and transportation, i.e., removal of any mineral from any land and accordingly, there is a special provision under the Mines and Minerals (Development and Regulation) Act, 1957 and Section 379 of the Indian Penal Code shall not be applicable in the facts of the case, on the same allegation of removal of the mineral from any land, alleging that the said removal shall amount to theft. 7. Learned counsel for the State on the other hand has opposed the prayer and has submitted that there is no illegality in the impugned order, worth interference in the revisional jurisdiction. 7. Learned counsel for the State on the other hand has opposed the prayer and has submitted that there is no illegality in the impugned order, worth interference in the revisional jurisdiction. It has been submitted by the learned counsel that there is direct allegation against the petitioner that the vehicle of the petitioner was used in commission of theft from the leased mining area of TISCO and accordingly, the offence is clearly made out under section 379 of the Indian Penal Code in the facts of the case. Learned counsel for the State has placed reliance upon an unreported decision of this Court in Md. Abrar Alam & Ors., Vs. The State of Jharkhand, in W.P.(Cr.) No. 405 of 2010, decided on 1.7.2011, wherein the cognizance was taken under section 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, wherein the same plea was taken that no Court can take cognizance of any offence punishable under the Act or any Rules made there under, except upon complaint in writing made by the person authorized in this behalf, and the offence cannot be made out under sections 379 and 413 of the Indian Penal Code. This Court has held that the offences under section 379 and 413 of the Indian Penal Code being cognizable offences, the F.I.R. can be lodged by anybody. So far as Section 22 Act is concerned, that is applicable only to the offence punishable under the said Act, and there is no conflict in the Code of Criminal Procedure with the provisions made in the Act of 1957 or the Rules there under. It was also held in the said case that in the facts of the case the offence was made out under section 379 of the Indian Penal Code. Placing reliance on this decision, learned counsel for the State has submitted that though the cognizance may be barred under the Mines and Minerals (Development and Regulation) Act, 1957 but in the facts of this case the offence is clearly made out against the petitioner under section 379 of the Indian Penal Code, for which the F.I.R. can be lodged by anybody and there is no illegality in taking cognizance against the petitioner on the basis of the F.I.R. 8. After having heard learned counsels for both the sides and upon going through the record, I find that there is direct allegation that the theft of iron ore was being committed from the lease hold mining area of the TISCO, and the dumpers engaged in committing the theft of iron ore were apprehended by the police and the petitioner is the owner of one of the dumpers. I am of the considered view that the decision of this Court in Pancham Singh’s case (supra), relied upon by the learned counsel for the petitioner is of no help to the petitioner, in as much as, in the present case there is direct allegation that the theft of iron ore was being committed from the leased iron ore mines of TISCO. The contention of the learned counsel that Section 21 (4) of the Act, specifically deals with removal of mineral from any land, but the fact remains that Section 21(4) of the Act is only an enabling provision for seizure of any tool, vehicle, equipments etc., engaged in such removal of the mineral from any land without any lawful authority. The penal provision is Section 21(1) Act. Section 21(1) & (4) of the Mines and Minerals (Development and Regulation) Act, 1957 read as under:- “21. Penalties. - (1) Whoever contravenes the provisions of subsection (1) or sub-section (1-A) of section 4 shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twenty-five thousand rupees, or with both. (2) …………… (3) …………. (4) Whenever any person raises, transports or causes to be raised or transported, without any lawful authority, any mineral from any land, and, for that purpose, uses any tool, equipment, vehicle or any other thing, such mineral tool, equipment, vehicle or any other thing shall be liable to be seized by an officer or authority specially empowered in this behalf.” 9. Thus from plain reading of both these provisions it is apparent that Section 21 (4) of the Act only an enabling provision for seizure of any tool, equipment or vehicle etc., engaged in removal of the mineral from any land without any lawful authority, whereas, the penal provision is Section 21(1) of the Act, which provides for the penalty for contravention of sub-section (1) and sub-section (1-A) of section 4 of the Act, which read as follows:- “Section 4. Prospecting or mining operations to be under license or lease.-(1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions of a reconnaissance permit or of a prospecting license or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. *** *** *** (1A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder.” Both these provisions do not deal with the specific offence of theft of the iron ore from the leased mining area of any other person or company. Accordingly, in my considered view, in the facts of this case, the offence is clearly made out against the petitioner for the offence under section 379 of the Indian Penal Code and in view of the fact that Section 379 of the Indian Penal Code is a cognizable offence, the criminal proceeding can be instituted on the basis of the F.I.R. lodged by the police officer who had seized the vehicles engaged in commission of theft of iron ore. 10. I find force in the submission of the learned counsel for the petitioner that the cognizance of the offence under Section 21 of the Act is barred in view of Section 22 of the Act, as the case has not been instituted on the basis of the complaint in writing made by the person authorized in this behalf by the appropriate Government, as provided under section 22 of the Act, rather the same has been instituted on the basis of the police report. But at the same time, I find no illegality in framing charge for offence under section 379 of the Indian Penal Code, in view of the specific finding of the Court below that there are materials against the petitioner for the offence under section 379 of the Indian Penal Code as well. I do not find any illegality in the impugned order, passed by the Court below, refusing to discharge the petitioner at this stage. As such there is no impediment in continuing the criminal proceeding against the petitioner for the offence under Section 379 of the Indian Penal Code, in the facts of this case. I do not find any illegality in the impugned order, passed by the Court below, refusing to discharge the petitioner at this stage. As such there is no impediment in continuing the criminal proceeding against the petitioner for the offence under Section 379 of the Indian Penal Code, in the facts of this case. Accordingly, I do not find any merit in this application and the same is hereby, dismissed.