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2014 DIGILAW 1507 (PNJ)

Jagjit Singh v. State of Punjab

2014-11-10

MAHAVIR S.CHAUHAN

body2014
JUDGMENT Mr. Mahavir S. Chauhan, J.: - Petitioners having been named as accused in FIR No.9 dated 17.02.2013 recorded at Police Station Sadar Faridkot, District Faridkot under section 379 of the Indian Penal Code, 1860 (‘IPC’ for short) and Section 21 of Mines and Minerals (Regulation & Development) Act, 1957 (for short ‘the act’) have invoked the provisions of Section 482 of the Criminal Procedure Code 1973 (‘Cr.P.C.’ for short) to seek quashing of the aforestated FIR. 2. State is contesting the petition. 3. I have heard learned counsel for the parties. 4. It is argued by learned counsel for the petitioners that F.I.R. for an offence under Section 21 of the Mines and Minerals (Regulation & Development) Act,1957 could not be recorded as according to Section 22 of the Act, unless a complaint is filed by the competent authority cognizance of an offence under Section 21 of the Act cannot be taken. You also submits that in view of the fact that the offence is punishable under the Act, provisions of Section 379, IPC, could not be invoked by the prosecution. Learned counsel relies upon Raman Kapila and another Versus State of Punjab 2012(4) R.C.R. (Criminal) 634, Rakesh Kumar Versus State of Haryana, [2011(5) Law Herald (P&H) 42] : 2011(3) R.C.R.(Criminal)629, Harmela Ram Versus State of Haryana 2013 (3) R.C.R.(Criminal)141. It is further argued that offence punishable under Section 21 of the Act is non-cognizable and provisions of Section 22 of the Act having not been complied with, the FIR and consequent proceedings cannot be allowed to continue. 5. On the contrary, learned State counsel argues that the offence of Section 379, IPC, is an independent offence and that being so cognizance can be taken because the offence of Section 379, IPC, is a cognizable offence. According to him, in view of involvement of the offence of under Section 379, IPC, the F.I.R which, incidently, involves a non cognizable offence cannot be quashed. 6. FIR is based on the allegations that the petitioners were found to indulge in digging of sand unauthorizedly in spite of prohibition in the matter. 7. The F.I.R concludes that the petitioners have committed an offence punishable under Section 379, IPC, and Section 21 of the Act. 6. FIR is based on the allegations that the petitioners were found to indulge in digging of sand unauthorizedly in spite of prohibition in the matter. 7. The F.I.R concludes that the petitioners have committed an offence punishable under Section 379, IPC, and Section 21 of the Act. Section 21 of the Act reads as under:- “Whoever contravenes the provisions of sub-section (1) of sub-section (1A) 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) Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable (with imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees), or with both, and in the case of a continuing contravention, with an additional fine which may extend to (five hundred rupees) for every day during which such contravention continues after conviction for the first such contravention. (3) Where any person trespasses into any land in contravention of the provisions of sub-section (1) of Section 4, such trespasser may be served with an order of eviction by the State Government or any authority authorised in this behalf by that Government and the State Government or such authorised authority may, if necessary, obtain the help of the police to evict the trespasser from the land. (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. (4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court. (4A) Any mineral, tool, equipment, vehicle or any other thing seized under sub-section (4), shall be liable to be confiscated by an order of the court competent to take cognizance of the offence under sub-section (1) and shall be disposed of in accordance with the directions of such court. (5) Whenever any person raises, without any lawful authority, any mineral from any land, the State Government may recover from such person the mineral so raised, or, where such mineral has already been disposed of, the price thereof, and may also recover from such person, rent, royalty or tax, as the case may be, for the period during which the land was occupied by such person without any lawful authority. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), an offence under sub-section (1) shall be cognizable”. 8. It would be relevant to refer to Section 22 of the Act, which reads as under:- “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 authorised in this behalf by the Central Government or the State Government”. 9. A perusal of Section 22 of the Act brings out that an offence punishable under Section 21 of the Act is a non-cognizable offence. To put it otherwise cognizance of an offence punishable under Section 21 of the Act can be taken only on complaint in writing to be filed by the authorised person. To clarify further, an F.I.R cannot be recorded in respect of an offence punishable under Section 21 of the Act. In Harmela Ram Versus State of Haryana (supra), a similar situation arose and this Court quashed the FIR and proceedings arising therefrom by observing that the offence being non-cognizable, FIR in the matter could not be recorded and continuance of the proceedings arising therefrom would be an abuse of process of law and the Court. It has been contended on behalf of the respondent-State that offence of Section 379, IPC, being a cognizable offence, FIR has been rightly recorded even though another offence which happens to be non cognizable is involved. I regret my inability to subscribe to the view put forth on behalf of the respondent-State. It has been contended on behalf of the respondent-State that offence of Section 379, IPC, being a cognizable offence, FIR has been rightly recorded even though another offence which happens to be non cognizable is involved. I regret my inability to subscribe to the view put forth on behalf of the respondent-State. It is not in dispute that offence of Section 379, IPC, is a simple as offence of theft and the theft of sand or other minerals is governed by the provisions of the Act, which is a special statute. The matter being regulated by a special statute, provisions of general law have to give way to the provisions of said Act. This was so held by this Court in M/s Mahalakshmi Spinners Ltd. Versus State of Haryana, [2007(1) Law Herald (P&H) 400] : 2007(1) R.C.R.(Civil) 381, Raman Kapila and another Versus State of Punjab 2012(4) R.C.R.(Criminal )634 and Rakesh Kumar Versus State of Haryana, [2011(5) Law Herald (P&H) 42] : 2011(3) R.C.R(Criminal) 629. Nothing to the contrary has been shown during the course of hearing. 10. That being so, the offences of Section 379, IPC, could not be included in the First Information Report and allowing the proceedings under that provision, would, in disputably amount to an abuse to the process of law and the Court and shall be vexations. 11. The consequence that follows is that the only offence that could be said to have been committed by the petitioners under falls Section 21 of the Act which would be a non-cognizable offence in terms of Section 22 of the Act and, as such, the FIR recorded in the matter deserves to be quashed. 12. In the consequence, I accept the petition and quash the F.I.R No.9 dated 17.02.2013 recorded under Section 379, IPC, and Section 21 of Mines and Minerals (Regulation & Development) Act, 1957, (Annexure P- 1) with all the proceedings emanating therefrom. 13. This order, however, shall not preclude the respondent-State from initiating appropriate proceedings in the matter as per procedure known to law. ---------0.B.S.0------------ —————————