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2015 DIGILAW 158 (JHR)

Awadhesh Kumar Singh v. State of Jharkhand

2015-02-04

RONGON MUKHOPADHYAY

body2015
Judgment Rongon Mukhopadhyay, J. Heard Mr. Siddharth learned counsel appearing on behalf of the petitioner and Mr. V.S. Sahay, learned counsel appearing on behalf of the State. 2. In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with Bishunpur P.S. Case No. 22 of 2002 corresponding to G.R. No. 486 of 2002 including the order dated 18.06.2003, whereby and whereunder, the learned Additional Chief Judicial Magistrate, Gumla has been pleased to take cognizance for the offence punishable u/s 379 of the Indian Penal Code (IPC) and Section 21 of the Mines and Minerals (Development & Regulation) (MMDR) Act, 1957. 3. The prosecution story as would appear from the First Information Report (FIR) instituted by the Assistant Mining Officer, Gumla (opposite party No. 2 herein) is that the informant found in course of inspection that illegal mining of bauxite was being carried on by some persons. It is alleged that seeing the informant party, the workers engaged in illegal mining activities fled away and at the place of occurrence 20 M.T. and 40 M.T. of bauxite was found. It is also said that two local persons have stated that Md. Makbul Ahmad Khan and Md. Azibul were committing illegal mining activities and that the petitioner used to purchase the bauxite and transport it to the railways siding, Meral of M/s. HINDALCO Industries, Renukut. 4. On the basis of the aforesaid allegations, Bishunpur P.S. Case No. 22 of 2002 was instituted and on investigation the charge-sheet was submitted against the petitioner, pursuant to which cognizance was taken for the offence u/s 379 I.P.C. and Section 21 of the MMDR Act by learned Additional Chief Judicial Magistrate, Gumla vide order dated 18.6.2003. 5. Learned counsel for the petitioner has submitted that the criminal prosecution instituted against the petitioner is false and concocted inasmuch as the petitioner is the lessee of the premises from which illegal mining was said to have been carried out which would be evident from the deed of indenture made on 9.11.1999 and which has been appended as Annexure-2 to the main application. He has further submitted that the Assistant Mining Officer (opposite party No. 2) did not have any jurisdiction to institute an F.I.R., as Section 22 of the MMDR Act precludes any court from taking cognizance of an offence punishable under this Act except upon a complaint in writing and in absence of a complaint having been filed by the opposite party No. 2, the present case is liable to be quashed. He has further submitted that the persons who had stated about the illegal mining carried on by Md. Makbul Ahmad Khan and Md. Azibul in course of examination u/s 164 of the Code of Criminal Procedure (Cr.P.C.) have stated otherwise. 6. The learned counsel for the State on the other hand has submitted that the F.I.R. clearly discloses an offence against the petitioner and after a thorough investigation charge-sheet has been submitted against the accused persons including the petitioner pursuant to which cognizance was taken by the learned Additional Chief Judicial Magistrate vide order dated 18.6.2003.He further submits that a case u/s 21 of the MMDR Act 1957 and u/s 379 I.P.C. is clearly made out as against the petitioner. 7. After hearing the learned counsel for the parties and after going through the records, I find that the Assistant Mining Officer, opposite party No. 2 herein had filed an F.I.R. for the offence punishable u/s 21 of the MMDR Act and u/s 379 I.P.C. Section 22 of the MMDR Act deals with cognizance of offences and the same reads as under:- "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 authorised in this behalf by the Central Government or the State Government." 8. Therefore, section 22 specifically envisages about filing of a complaint in writing by a person authorized by the Central Govt. or the State Govt. 9. A 'complaint' which has been defined u/s 2(d) of the Cr.P.C. specifically excludes an F.I.R. and therefore if any offence is made out under the provisions of the MMDR Act, the person authorized by the Central Govt. or the State Govt. can only file a complaint and not an FIR. or the State Govt. 9. A 'complaint' which has been defined u/s 2(d) of the Cr.P.C. specifically excludes an F.I.R. and therefore if any offence is made out under the provisions of the MMDR Act, the person authorized by the Central Govt. or the State Govt. can only file a complaint and not an FIR. Therefore, the F.I.R. and the subsequent cognizance u/s 21 of the MMDR Act cannot be allowed to proceed in view of the inherent deficiency in the inception of the case itself. 10. So far as the offence punishable u/s 379 IPC is concerned it has been strenuously argued by the learned counsel for the petitioner that in view of Section 4 and 5 of the Cr.P.C., the special law will prevail over the general law and since the special law herein in this case is the MMDR Act, no prosecution for the offence punishable u/s 379 I.P.C. can be allowed to continue. This submission of the learned counsel for the petitioner is fit to be rejected in view of the fact that the said dispute having been finally laid to rest by the Hon'ble Supreme Court in the case of State of NCT of Delhi v. Sanjay reported in (2014) 9 SCC 772 , wherein this question has specifically been dealt with in Paragraphs-70, 71, 72, 73, which are quoted herein:- "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 authorized 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 authorized officer. In case of breach and violation of Section 4 and other provisions of the Act, the police Officer cannot insist Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In case of breach and violation of Section 4 and other provisions of the Act, the police Officer cannot insist 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 sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitute an offence under Indian Penal Code. 72. However, there may be situation where a person without any lease or license or any authority enters into river and extracts sands, gravels and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minders from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Indian Penal Code. From a close reading of the provisions of 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, gravels and other minerals from the river, which is the property of the State, out of 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 person. In other words, in a case where there is a theft of sand and gravels 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. 73. In other words, in a case where there is a theft of sand and gravels 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. 73. After giving our thoughtful consideration in the matter, in the light of relevant provisions of the Act vis-a-vis the Code of Criminal Procedure and the Indian Penal Code, we are of the definite opinion that the ingredients constituting the offence under the MMRD Act and the ingredients of dishonestly removing sand and gravel from the river beds without consent, which is the property of the State, is a distinct offence under the IPC. Hence, for the commission of offence under Section 378 Cr.P.C., on receipt of the police report, the Magistrate having jurisdiction can take cognizance of the said offence without awaiting the receipt of complaint that may be filed by the authorized officer for taking cognizance in respect of violation of various provisions of the MMDR Act. Consequently the contrary view taken by the different High Courts cannot be sustained in law and, therefore, overruled. Consequently, these criminal appeals are disposed of with a direction to the concerned Magistrate to proceed accordingly." 11. Thus, so far as Section 379 I.P.C. is concerned, there is bar to the police in instituting, registering and investigating the offence punishable under the provisions of the Indian Penal Code in the case of an illegal mining. Argument made by the learned counsel for the petitioner that the mining activities were carried on in the lease hold premises of the petitioner and that the persons who had disclosed about illegal mining had subsequently resiled from their statements u/s 161 Cr.P.C., cannot be accepted because u/s 482 Cr.P.C., the court is not empowered to look into the defence of the petitioner. The powers u/s 482 Cr.P.C. are to be used sparingly and with circumspection. This Court u/s 482 Cr.P.C. is not empowered to make a roving enquiry or a meticulous examination of the documents produced by the petitioner accused. The document which has been relied upon by the learned counsel for the petitioner can best be appreciated by the learned trial court as the same is the defence of the petitioner. 12. This Court u/s 482 Cr.P.C. is not empowered to make a roving enquiry or a meticulous examination of the documents produced by the petitioner accused. The document which has been relied upon by the learned counsel for the petitioner can best be appreciated by the learned trial court as the same is the defence of the petitioner. 12. Considering the facts and circumstances discussed above, the criminal proceeding u/s 21 of the MMDR Act cannot be allowed to continue because of its inherent defect as discussed above. So far as the offence punishable u/s 379 I.P.C. is concerned, no case is made out by the petitioner for interference by this Court. 13. Accordingly that part of the order dated 18.06.2003 by which cognizance has been taken for the offence punishable u/s 21 of the MMDR Act is quashed so far as the petitioner is concerned. As regards that part of the order dated 18.6.2003 by which cognizance for the offence punishable u/s 379 IPC is taken, there being no illegality the same is sustained and the contention of the petitioner is rejected. 14. This application is allowed in part. Application partly allowed.