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Jharkhand High Court · body

2014 DIGILAW 1296 (JHR)

Gurudev Mahato v. State of Jharkhand

2014-12-22

RONGON MUKHOPADHYAY

body2014
Order Heard learned counsel for the petitioner and learned counsel for the State. 2. This application has been preferred by the petitioner for quashing the entire criminal proceeding in connection with Chakulia (Shyam Sunderpur) P.S. Case No. 22 of 2014, which has been registered for the offences under sections 379 and 411 of the Indian Penal Code as also Rule 4/54 of Jharkhand Minor Mineral Concession Rules, 2004. 3. The prosecution story as would appear from the FIR instituted by the Circle Officer, Chakulia is that in course of inspection, three vehicles bearing registration no. UR 28B-2659, JH05-AA-7749 and U.K. 8268 were found loaded with sand. On being queried, the driver could not produce any valid document to substantiate the transportation of sand. 4. Learned counsel for the petitioner has submitted that in view of the provisions of Sections 4 and 5 of the Code of Criminal Procedure, the First Information Report could not be registered under Section 379 and 411 of the Indian Penal Code as the special law on the subject i.e. the Mines & Minerals (Development & Regulation) Act as well as the Jharkhand Minor Mineral Concession Rules will override the provisions of the general law. With respect to the institution of the FIR under the provisions of Jharkhand Minor Mineral Concession Rules, 2004, the learned counsel for the petitioner has submitted that the informant of the present case is the Circle Officer, Chakulia and he being not an authorized officer as envisaged under the provisions of MMDR Act and the Rules framed thereunder, the FIR so far as it relates to offences under the provisions of Jharkhand Minor Mineral Concession Rules is concerned, is liable to be quashed. Learned counsel for the petitioner has also submitted that Sections 379 & 411 of the Indian Penal Code is not applicable in the facts and circumstances of the case since none of the ingredients of theft as defined in Section 378 of the Indian Penal Code is fulfilled and therefore he submits that the entire criminal proceedings instituted against the petitioner should not be allowed to continue as continuance of the same would be an abuse of the process of law. 5. 5. Learned counsel for the State on the other hand has submitted that the police is competent enough to register the FIR if it is found that the accused persons have indulged in committing theft of stolen minor minerals and continuance of criminal proceeding under both the special law as well as the general law should not act as a hindrance. 6. After hearing learned counsel for both the sides and on going through the records, I find that three trucks were apprehended which were found loaded with sand and no valid documents were in possession of the drivers so as to indicate genuineness of the transportation of sand. The first information report has been instituted by the police on the basis of a written report given by the Circle Officer, Chakulia and it is to be deduced as to whether the offences for which the first information report has been instituted against the petitioner is tenable in the eyes of law and whether the informant was competent enough to institute the present case both under the provisions of Indian Penal Code as well as under the provisions of Jharkhand Minor Mineral Concession Rules. 7. In this connection, reference may be made to Section 22 of the Mines & Minerals (Development and Regulation) Act, 1957, which reads thus:- “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. 8. Rule 57 of the Jharkhand Minor Mineral Concession Rules lays down the persons authorised to file a complaint under the provisions of this Rule. 9. The present case has been instituted by the Circle Officer, Chakulia, who according to the statements made in this application, did not have any jurisdiction to institute the FIR and this fact has not been controverted by the State by filing a counter affidavit to the present application. In a judgment reported in (2014) 9 SCC 772 State (NCT of Delhi) Vs. In a judgment reported in (2014) 9 SCC 772 State (NCT of Delhi) Vs. Sanjay, the Hon'ble Supreme Court while considering the question as to whether the provisions contained in Sections 21 and 22 and other Sections of Mines and Minerals (Development and Regulation) Act, 1957 operate a bar against prosecution of a person who has been charged with allegation which constitutes offences under Sections 379 and 411 and other provisions of the Penal Code, 1860 held as under:- "61. Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence. 62.-Sub-Section (1-A) of Section 4 of the MMDR Act puts a restriction in transporting and storing any mineral otherwise than in accordance with the provisions of the Act and the Rules made thereunder. In other words no person will do mining activity with a valid lease or licence. Section 21 is a penal provision according to which if a person contravenes the provisions of sub-section (1-A) of Section 4, he shall be prosecuted and punished in the manner and procedure provided in the Act. Sub-section (6) has been inserted in Section 4 by amendment making the offence cognizable notwithstanding anything contained in the Code of Criminal Procedure, 1973. Section 22 of the Act puts a restriction on the court to take cognizance of any offence punishable under the Act or any Rule made thereunder except upon a complaint made by a person authorised in this behalf. It is very important to note that Section 21 does not begin with a non obstante clause. In stead of the words "notwithstanding anything contained in any law for the time being in force no court shall take cognizance......", the section begins with the words "no court shall take cognizance of any offence". 69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. 69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels. 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein. In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code. 71. However, there may a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those materials in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code. 72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 Cr.P.C. before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190 (1)(d) of the Code of Criminal Procedure". 10. 10. The Hon'ble Supreme Court in the judgment referred to above thus came to a conclusion that initiation of a proceeding for commission of an offence under the MMDR Act shall not debar the police from taking action against any person for committing theft of sand and minerals by exercising the powers vested on them under the Code of Criminal Procedure. This in effect would mean that the present case which has also been instituted under the provisions of Sections 379 & 411 of the Indian Penal Code cannot be stalled on the ground that general law will not operate in the field where a special law operates. As such it is held that so far as lodging of the FIR under Sections 379 & 411 of the Indian Penal Code is concerned, there is no illegality and as such the same warrants no interference. 11. Coming back to the institution of the FIR under the provisions of Jharkhand Minor Minerals Concessions Rule, 2004, in view of the fact that since the Circle Officer, Chakulia was not authorised to institute the case in view of the specific provisions laid down under Rule 57 of the Jharkhand Minor Minerals Concessions Rule, 2004, continuation of the proceedings so far Rule 4/54 of Jharkhand Minor Minerals Concessions Rule, 2004 is concerned, would be an abuse of the process of law. 12. In such circumstances, the institution of the case under Section 4/54 of Jharkhand Minor Minerals Concessions Rule, 2004 in connection with Chakulia (Shyam Sunderpur) P.S. Case No. 22 of 2014 is hereby quashed. However, since there is no illegality in institution of the case under Sections 379 and 411 of the Indian Penal Code, the investigation by the police so far as the offences under the Indian Penal Code are concerned, shall continue. 13. In the result, this application is allowed in part. Application partly allowed.