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2015 DIGILAW 1108 (JHR)

Sadhu Yadav v. State of Jharkhand

2015-09-16

H.C.MISHRA

body2015
Order Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners have filed this application for quashing the entire criminal proceeding against them in Baghmara P.S Case No.110 of 2005, corresponding to G.R Case No.1463 of 2005, including the order dated 29.1.2007 passed therein, by the learned Chief Judicial Magistrate, Dhanbad, taking cognizance for the offence under Sections 414, 379 / 34 of the Indian Penal Code and Section 21 (1) of the Mines and Minerals (Development & Regulation) Act, (hereinafter referred to as ‘MMDR Act’). 3. The F.I.R has been brought on record, which shows that the police apprehended two trucks, loaded with allegedly illegally mined coal. The petitioners are named in the F.I.R. The petitioner, Sadhu Yadav is the owner of one of the apprehended trucks, whereas it is alleged that the petitioner, Chandan Dubey @ Manish Chandra Diwedi was involved in illegal mining of coal. On the basis of the written information by the Police Officer, who apprehended the trucks, F.I.R was lodged and the investigation was taken up. 4. It appears from the impugned order dated 29.1.2007 passed by the Court below that after investigation, the police submitted charge-sheet in the case and on the basis of the materials in the charge-sheet and the case diary, the cognizance has been taken against the accused persons, including the petitioners, for the offence under Sections 414, 379 / 34 of the Indian Penal Code and Section 21 (1) of the MMDR Act. 5. Learned counsel for the petitioners has submitted that the impugned order taking cognizance, as also the entire criminal proceeding against the petitioners, are absolutely illegal, inasmuch as, the petitioners are the having the valid documents regarding the truck as well as the coal and the same has also been released in their favour during the pendency of the trial. Learned counsel for the petitioners has also submitted that the cognizance taken for the offence under Section 21 (1) of the MMDR Act is also absolutely illegal, in view of the fact that the cognizance has been taken on the basis of the police report, whereas Section 22 of the MMDR Act completely bars taking cognizance for the offence under the said Act, except upon a complaint in writing made by the person authorized in this behalf by the Central Government or the State Government. Learned counsel, accordingly, submitted that the impugned order, as also the entire criminal proceeding against the petitioners, cannot be sustained in the eyes of law. 6. Learned counsel for the State has opposed the prayer, submitting that in view of the allegation made in the F.I.R., the offence is made out against the petitioners. 7. Having heard the learned counsels for both the sides and upon going through the record, I find that there is allegation against the petitioners to be involved in illegal mining and transportation of coal. The fact that the petitioners are having the valid documents of coal, cannot be seen at this stage as the same has to be proved in course of trial. The further fact that during the pendency of the trial, the coal and the truck, in question, have been released in favour of the petitioners, shall also not vitiate the trial in any manner whatsoever. 8. However, I find force in the submission of the learned counsel for the petitioners as regards the cognizance taken by the Court below for the offence under Section 21 (1) of the MMDR Act. In Section 22 of the said Act, there is a clear bar against taking cognizance for the offence under the said Act, except upon a complaint made in writing by the person authorized in this behalf by the Central Government or the State Government. Admittedly, the cognizance in the present case has been taken on the basis of the police report and the impugned order taking cognizance for the offence under Section 21 (1) of the MMDR Act cannot be sustained in the eyes of law. 9. Accordingly, the impugned order dated 29.1.2007, passed by the learned Chief Judicial Magistrate, Dhanbad, in Baghmara P.S Case No.110 of 2005, corresponding to G.R Case No.1463 of 2005, so far as it relates to taking cognizance for the offence under Section 21(1) of the MMDR Act, is hereby, set aside. 10. It is made clear that there shall be no interference in the impugned order dated 29.1.2007, so far as it relates to taking cognizance for the offences under the Indian Penal Code, as also there shall be no interference in the criminal proceedings against the petitioners. Consequently, this application stands allowed in part, with the directions as above.