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2016 DIGILAW 1658 (JHR)

Dasrath Yadav v. State of Jharkhand

2016-12-13

ANANDA SEN

body2016
ORDER : 1. In these petitions, filed under Section 482 Cr.P.C., the petitioners have prayed for quashing the order dated 8.3.2016 passed by the learned Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 3354 of 2014 and G.R. No. 3356 of 2014 in connection with Chauparan P.S. Case no. 124 of 2014 and Chauparan P.S. Case no. 126 of 2014, respectively, whereby, charge has been framed under Section 379 IPC, Section 21 of the Mines and Minerals (Development and Regulation) Act (for short MMDR Act) and Section 54 of the Jharkhand Minor Mineral Concession Rules, 2004. 2. Both the First Information Report as Chauparan P.S. Case No. 124/2014 and Chauparan P.S. Case no. 126 of 2014 have been lodged alleging therein that during inspection at Saloniya Area, it was found that the petitioners of both cases, who are the proprietors of M/s Bajrang Stone and M/s Parwati Stone Works, respectively, were engaged in illegal business/mining of stone without having any lease/licence. It was also alleged that Diesel Engine and Stone Crusher Machine were found at the place of occurrence, which was in running condition. Upon investigation, the police submitted charge-sheet against the petitioners for the offence under Sections 379 IPC, 4(1)A/21 of the MMDR Act and Sections 48, 54 and 67 of the Jharkhand Minor Mineral Concession Rules, 2004. Upon receipt of the charge-sheet, the learned trial court vide order dated 8.3.2016 has framed charges for the offence under Sections 379 IPC, 21 of the MMDR Act and Section 54 of the Jharkhand Minor Mineral Concession Rules. 3. Learned counsel for the petitioners at the very outset restricted his prayer and argument and only challenges the charge and cognizance in respect of the offence under Section 21 of the MMDR Act. He submits that as per Section 22 of the MMDR Act, there is a bar on taking cognizance upon an FIR. He submits, that charges cannot be framed under the said Section against the petitioners. He submits that as per Section 22 of the MMDR Act, there is a bar on taking cognizance upon an FIR. He submits, that charges cannot be framed under the said Section against the petitioners. He also submits that as per MMDR Act, cognizance can be taken only on a complaint made by an authorized person and since the instant case does not arise from a complaint within the meaning of Section 2(d) of the Cr.P.C., no cognizance could have been taken in these case under Section 21 of MMDR Act and consequently, the charge framed under Section 21 of the MMDR Act against both the petitioners is absolutely bad and is liable to be quashed. 4. The learned A.P.P. submits that there is no ground to entertain these petitions and the Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Sanjay reported in (2014) 9 SCC 772 , has held that the FIR is maintainable when there is illegal removal of minerals without having necessary licence or permit, as the same amount to theft. 5. I have heard the learned counsel for the parties and perused the record of both the cases. 6. It is necessary to quote Section 21 of the MMDR Act, which reads as under:- “21. (1) Whoever contravenes the provisions of sub-section (1) or sub-section (1A) of section 4 shall be punishable with imprisonment for a term which may extend to five years and with fine which may extend to five lakh rupees per hectare of the area. (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 two years or with fine which may extend to five lakh rupees, or with both, and in the case of a continuing contravention, with additional fine which may extend to fifty thousand 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. (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, an offence under sub-section (1) shall be cognizable.” 7. Section 22 of the MMDR Act deals with the cognizance of offences. From perusal of the said Section, it is clear that no court shall take cognizance of any offence punishable under the Act or any rules made thereunder, except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Government. 8. Section 2(d) of the Cr.P.C. defines complaint, which reads as follows:- “2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.” As per Section 2(d) of the Cr.P.C., a police report or a FIR is not a complaint. A charge-sheet is a report of the police Officer, which is submitted in terms of Section 173 Cr.P.C. on completion of investigation. A charge-sheet is a report of the police Officer, which is submitted in terms of Section 173 Cr.P.C. on completion of investigation. Thus as per Section 2(d), this police report, which is the charge-sheet cannot be a complaint under Section 2(d) of the MMDR Act. The Court has taken cognizance under Section 21 of the MMDR Act only after the receipt of the charge-sheet (police report), in these two cases. 9. In these instant cases, the police after investigation has filed their charge-sheet not only under Section 21 of the MMDR Act but also under Section 379 IPC and under Section Section 54 of the Jharkhand Minor Mineral Concession Rules. 10. So far as under Section 379 IPC is concerned, the law is well settled by the Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Sanjay reported in (2014) 9 SCC 772 . As per the said decision, there is no bar in lodging an FIR under the provisions of Indian Penal Code in the case of illegal/theft of minerals. Section 54 of the Jharkhand Minor Mineral Concession Rules also does not preclude institution of the FIR in terms of Section 57 of the said Rules. 11. So far as Section 379 IPC and Section 54 of the Jharkhand Minor Mineral Concession Rules, there is no bar in taking cognizance upon filing of the charge-sheet. The position is not so with regard to Section 21 of the MMDR Act. Cognizance can only be taken only upon a complaint (made by an authorized Officer) and not on a report of the police which is not a complaint. Thus, the cognizance, in these cases, taken by the learned Magistrate under Section 21 of the MMDR Act cannot be sustained and the same is liable to be set aside. Thus the charge framed under Section 21 of the MMDR Act is also bad and therefore, the same is also set aside. 12. So far as framing of charge under Section 379 IPC and Section 54 of the Jharkhand Minor Mineral Concession Rules is concerned, it is well within the jurisdiction of the learned Magistrate to take cognizance of the aforesaid offences upon receipt of the charge-sheet (Police report) filed before the court below by the Investigating Officer. 13. In view of the above, the charge framed under Section 21 of the MMDR Act is set aside. 13. In view of the above, the charge framed under Section 21 of the MMDR Act is set aside. The court concerned is at liberty to proceed against the petitioners of both cases for the offences under Section 379 IPC and Section 54 of the Jharkhand Minor Mineral Concession Rules. 14. In view of the aforesaid observations and directions, both petitions are partly allowed. Petitions partly allowed.