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2015 DIGILAW 454 (JHR)

Mahendra Singh v. State of Jharkhand

2015-04-09

RONGON MUKHOPADHYAY

body2015
ORDER : Heard Mr. Ashok Kr. Yadav, learned counsel appearing on behalf of the petitioner and the learned A.P.P. appearing on behalf of the opposite party. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Barwadih P.S. Case No. 26 of 2013 corresponding to G. R. Case No. 284 of 2013 including the order dated 04.03.2013 whereby and whereunder cognizance has been taken for the offences punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and under Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. The prosecution story as would appear from the written complaint filed by the Assistant Mining Officer, Latehar before the Officer In-charge, Barwadih Police Station is to the effect that pursuant to the direction of the Deputy Commissioner, Latehar a task force was constituted and a raid was conducted in the premises of the petitioner in Mauza Barwadih Khata No. 50 and Plot No. 61 and 63 which is Gairmajurwa Malik and forest lands and in seven places altogether nineteen thousand six hundred cubic feet stones were recovered. It has been alleged that after reaching the place of occurrence one of the villagers namely Md. Rajaul Haque and a Chowkidar namely, Sunil Paswan had disclosed the owner of the Crusher namely Mahendra Singh (petitioner) who had stored illegal stones in Khata No. 50 Plot No. 61 and 63. On the basis of the aforesaid allegations, the First Information Report was instituted under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004 and subsequently Sections 379, 411 of the Indian Penal Code and Section 33 of the Indian Forest Act had been added. In the interlocutory application filed by the petitioner, it appears that during the pendency of the present application the charge-sheet was submitted by the police against the petitioner and based on the charge-sheet vide order dated 04.03.2014 the learned Judicial Magistrate, 1st Class, Latehar was pleased to take cognizance for the offences punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. The learned counsel for the petitioner has submitted that the petitioner is engaged in the business of stone crushing for which he has set up a crusher machine and that the petitioner had entered into a mining lease agreement dated 22.07.2008 with the Government of Jharkhand for mining of stones from Mouza Chhechha, P.S. Barwadih, District Latehar in Plot No. 33, Thana No. 29 corresponding to Khata No. 08 having total area of 2.51 acres. It has been submitted that the lease deed executed on 22.08.2008 is valid for a period of 10 years i.e. till 22.08.2018. It has also been submitted that in order to transport the stones to the place where crusher machine is situated the petitioner was required to obtain Form – Q for the storage of stones and pursuant to the application made by the petitioner certificate has been issued by the Mining Department from time to time. It has also been submitted that the petitioner had duly applied for renewal of license for storage of stones on 31.12.2012 for the period from 01.01.2013 to 31.12.2013. The learned counsel for the petitioner further submits that no objection certificate has also been issued in favour of the petitioner by the Jharkhand State Pollution Control Board vide letter dated 31.01.2013 and the production capacity for the mining stones was permitted to the tune of 1000 cubic feet per day for stone boulders. Not only this the consent to operate the mines have also been permitted vide order dated 14.02.2013. It has further been submitted that no objection certificate dated 15.04.2013 was issued in favour of the petitioner by which consent have been given for setting up a stone crusher in plot no. 63/1667, 1668, Khata No. 50/16 area 4 acres Mouza Barwadih, P.S. Barwadih, District Latehar and consent to operate order was also issued on 13.05.2013. It has been submitted that the certificate of storage of stones in the premises where crusher machine is situated could not be obtained although the no objection certificate was already issued by the Jharkhand State Pollution Control Board and by dint of which the petitioner had transported the stones from his mining area to the place where the crusher machine is situated. It has also been submitted by the learned counsel for the petitioner that even if the allegations are taken to be true in its entirety the same cannot be a basis for institution of a criminal case as the same can be construed to be a violation of terms and conditions of lease. The learned counsel for the petitioner further adds that if indeed there has been violation of the Act and the Rules the informant could have taken recourse under the provisions of the Act and the Rule and not by instituting a criminal case. It has further been submitted that the entire complaint case being bereft of any materials to prosecute the petitioner, the same is liable to be quashed and set aside. The learned counsel for the State, on the other hand, has submitted that there is specific allegation against the petitioner of keeping stones beyond the leasehold area and the petitioner did not have the requisite challans permitting him for storage of stones. It has further been submitted that investigation by the police resulted in finding the case to be true and on submission of the charge-sheet cognizance was taken for the offences punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. It has further been submitted that whatever contentions have been raised by the petitioner are with respect to his defence and this Court under Section 482 Cr.P.C. cannot look into the defence of the petitioner at this stage as the same is a matter of trial. After hearing the learned counsel for the parties and on going through the records, I find that a First Information Report was instituted for the offence punishable under Sections 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. Subsequently on an application Section 414 of the Indian Penal Code and Section 33 of the Indian Forest Act was added but on investigation charge-sheet was not filed under Section 414 of the IPC as also under Section 33 of the Indian Forest Act. Subsequently on an application Section 414 of the Indian Penal Code and Section 33 of the Indian Forest Act was added but on investigation charge-sheet was not filed under Section 414 of the IPC as also under Section 33 of the Indian Forest Act. Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 specifically lays down that the complaint in writing has to be made by a person authorized in this behalf by the Central Government or the State Government in order to enable the courts to take cognizance for the offences punishable under the provisions of Mines and Minerals (Development and Regulation) Act 1957 and any Rule made thereunder. An F.I.R. is instituted under the provisions of Section 154 of the Cr.P.C. and a complaint is defined in Section 2(d) of the Cr.P.C. which specifically excludes an F.I.R. Since Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 clearly speaks about a complaint as such institution of a criminal case by registering an F.I.R. would be contrary to the provisions of Section 22 of the Mines and Minerals (Development and Regulation) Act 1957 and in such circumstances the very initiation of the criminal proceedings so far as Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 is concerned is defective and contrary to the provisions of law. As regards cognizance which has been taken under Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004 there is no bar for the competent authority to institute a F.I.R. in terms of Section 57 of the Jharkhand Minor Mineral Concession Rules, 2004. In such view of the matter, the contention of the learned counsel for the petitioner that only a complaint can be instituted is misconceived. Rule 54 of the Jharkhand Minor Mineral Concession Rules, 2004 lays down that a person authorised or the Deputy Director (Mines) or Additional Director (Mines) or Director Mines can institute a complaint or a F.I.R. before the competent court of law. The FIR has been instituted by the Assistant Mining Officer and nothing has been brought on record by the petitioner that he was not competent to institute a case for the offences punishable under Rule 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. The FIR has been instituted by the Assistant Mining Officer and nothing has been brought on record by the petitioner that he was not competent to institute a case for the offences punishable under Rule 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. Moreover, it appears that certificate for storage of stone in the premises where crusher machine is situated could not be obtained and in such circumstance it cannot be looked into by this Court while exercising jurisdiction under Section 482 of the Cr.P.C. as to whether the stones were kept beyond the leasehold area or not. The police has also investigated into the matter and finding the allegations to be true has also submitted charge-sheet under Rule 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004. Whether the area in which stone was kept falls within the leasehold area or whether necessary certificates have been obtained by the petitioner for storage of stone can only be thrashed out in course of the trial. This Court under Section 482 Cr.P.C. is not empowered to sift the evidence or to conduct a roving enquiry into the allegations made against the petitioner. Since no illegality has been pointed out with respect to the order of cognizance for the offences punishable under Section 4/67 of the Jharkhand Minor Mineral Concession Rules, 2004 this Court is not inclined to quash that part of the order dated 04.03.2013. However, with respect to the cognizance which has been taken for the offences punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and as has been discussed above since institution of a complaint is a sine quo non for initiating a criminal proceeding under Sections 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 and the same having not been done the criminal proceedings under the said provisions cannot be allowed to continue. Accordingly, that part of the order dated 04.03.2013 whereby and whereunder the cognizance has been taken for the offence punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 is concerned, the same is quashed. Accordingly, that part of the order dated 04.03.2013 whereby and whereunder the cognizance has been taken for the offence punishable under Section 4/21 of the Mines and Minerals (Development and Regulation) Act 1957 is concerned, the same is quashed. However, with respect to the cognizance under Rule 4/67 Jharkhand Minor and Mineral Concession Rules, 2004 there being no merit in the contention of the learned counsel for the petitioner, the same is rejected and the trial shall proceed with respect to the offences punishable under Rule 4/67 Jharkhand Minor and Mineral Concession Rules, 2004. This application is allowed in part.