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2013 DIGILAW 73 (JHR)

Adarsh Chilukuri v. State of Jharkhand

2013-01-14

R.R.PRASAD

body2013
Judgment According to the counsel appearing for the State in spite of intimation being given for sending down instruction for filing counter affidavit, no such instruction was made available and as such, counter affidavit was not filed. 2. In such situation, the case was heard on its merit. 3. This application has been filed for quashing of the order dated 27.8.2010 passed by the then Additional Chief Judicial Magistrate, Ghatshila in G.R.No.124 of 2006 whereby and whereunder cognizance of the offences punishable under Sections 379,188 and 120(B) of the Indian Penal Code and also under Section 4/21(5) of the M.M.D.R. Act has been taken against the petitioners. 4. Before adverting to the submissions advanced on behalf of the petitioners, case of the prosecution needs to be taken notice of. 5. It is the case of the prosecution that the informant, Sub-Inspector, Bahragora Police Station in course of patrolling did find two trucks, bearing registration nos.C.G.-04J-3594 and HR-38K-6779 loaded with iron ore standing in front of Hot Mixing Plant belonging to Lakheswari Builder. There huge quantity of iron ore was found stored. The labourers seeing the police party coming, started running away but four of them were apprehended, who disclosed that they, at the instance of Adarsh Chilukuri, petitioner no.1 proprietor of M/s. Usha Logistic Company and the Manager Shri Niwas Reddy (petitioner no.2), have been storing and transporting iron ore. All the four were arrested and the seizure list was prepared. 6. On such allegation, a case was registered as Bahragora P.S case no.23 of 2006 under Sections 379, 188 and 120(B) of the Indian Penal Code and also under Section 4/21(5) of the M.M.D.R. Act. 7. On completion of investigation when the charge sheet was submitted, cognizance of the offences as stated above was taken against the petitioners, vide order dated 27.8.2010 which is under challenge. 8. Learned counsel appearing for the petitioners submitted that allegation of storing and transporting iron ore in contravention of the provision of the M.M.D.R Act will be subject matter of prosecution under special legislation Mines and Minerals (Development and Regulation) Act, 1957 and hence, the petitioners cannot be prosecuted for an offence under the General Law. 9. 8. Learned counsel appearing for the petitioners submitted that allegation of storing and transporting iron ore in contravention of the provision of the M.M.D.R Act will be subject matter of prosecution under special legislation Mines and Minerals (Development and Regulation) Act, 1957 and hence, the petitioners cannot be prosecuted for an offence under the General Law. 9. It was further submitted that so far cognizance taken under Section 21 of the M.M.D.R Act is concerned, that is quite bad as it has never been taken upon a complaint filed by the person authorized either on behalf of the Central Government or the State Government and thereby the order taking cognizance is fit to be quashed. 10. As against this, learned counsel appearing for the State submitted that the informant is quite competent to lodge a case under the Indian Penal Code as well as under the M.M.D.R. Act as the offence under M.M.D.R. Act is cognizable one and thereby no illegality has been committed by the court in taking cognizance of the offence against the petitioners. 11. Having heard learned counsel appearing for the petitioners, I do find that whatever allegation is there in the F.I.R, that would be subject matter for prosecution under the M.M.D.R Act as the M.M.D.R Act being a special legislation will have overriding effect upon the provisions of general law and therefore, any prosecution under the general law is not permissible. 12. In this regard I may refer to Section 4 of the Code of Criminal Procedure which deals with the matter regarding investigation and enquiry of the case falling under the Indian Penal Code or any Special Act which reads as follows: “Trial of offence under the Indian Penal Code and other laws - (1) All offences under the Indian Penal Code (46 of 1960) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject matter to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 13. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject matter to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 13. Thus, sub-section (1) of Section 4 of the Code provides that in absence of any specific provision to the contrary nothing I the code shall affect any special or local law for the time being in force. However, the conjoint effect of that provision and sub-section (2) of Section 4 would be as follows: “1. That all offences, whether under the penal code or under any other law, have to be investigated, inquired into, tried and otherwise dealt with according to the provisions of the code. 2. This rule is subject to qualification that in respect of offences under other laws that is to say, under laws other than Indian Penal Code, if there be an enactment regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences, such enactment will prevail over the code. 3. The provisions of special or local law will prevail over the provisions contained in the Code unless there is specific provisions to the contrary. 14. Having taking notice of the provision of Section 4 of the Code, one is required to take notice of the provision as contained in Section 4(1A) of the M.M.D.R. Act which reads as follows: 4. Prospecting or mining operations to be under licence 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 licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder. Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement. Proviso.......................................................................................... 1(A) 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.” 15. Proviso.......................................................................................... 1(A) 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.” 15. From perusal of the provision as referred to above, it does appear that allegation upon which F.I.R has been lodged comes within the ambit of Section 4(1A) of the M.M.D.R. Act. In that event, the court cannot take cognizance of the offences under the M.M.D.R. Act in absence of any complaint in writing made by a person authorized on behalf of the Central Government or the State Government which would be evident from the provision as contained in Section 22 of the said Act which reads as follows: “22. Cognizance of offences--No court shall take cognizance of any offence punishable under this Act 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”. 16. Here in the instant case, cognizance has been taken by the court upon the charge sheet submitted by the police upon in a case lodged by the informant and thereby prosecution under the M.M.D.R Act cannot be maintained. So far offence under Section 379 of the Indian Penal Code is concerned, it in the face of allegation is not made out as it is the case of the prosecution itself that persons who were apprehended had stored iron ore and were in the process of transporting it at the instance of the petitioners. 17. At the same time, no offence is made out under Section 188 of the Indian Penal Code as it never happens to be a case of disobedience to order duly promulgated by public servant. 18. Accordingly, the order under which cognizance has been taken is hereby quashed so far the petitioners are concerned. 19. In the result, this application stands allowed. Application allowed.